BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LISA AHLF,
 
                                              File No. 832497
 
            Claimant,
 
                                           A R B I T R A T I O N
 
        vs.
 
                                              D E C I S I O N
 
        IBP, INC.,
 
        
 
            Employer,                            F I L E D
 
        
 
            Self-Insured,                       DEC 7 1989
 
            Defendant.
 
                                        IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is an arbitration proceeding brought by Lisa Ahlf, 
 
             claimant, against IBP, self-insured employer, defendant. The case 
 
             was heard by the undersigned in Burlington, Iowa on September 20, 
 
             1989.
 
        
 
            The record consists of the exhibits of claimant marked 1-4. 
 
        The record also consists of defendant's exhibits A-H. 
 
        Additionally, the record consists of the testimony of claimant.
 
        
 
                                      ISSUES
 
        
 
             As a result of the prehearing report and order submitted and 
 
             approved on September 20, 1989, the issues presented by the 
 
             parties are:
 
        
 
            1. Whether there is a causal relationship between the 
 
        alleged injury and the disability;
 
        
 
            2. Whether claimant is entitled to temporary disability/ 
 
        healing period benefits or permanent partial or total disability 
 
        benefits;
 
        
 
            3. Whether section 85.33(3) is applicable here;
 
        
 
            4. Whether defendant is entitled to a credit under section 
 
        85.34(4); and,
 
        
 
            5. Whether claimant is entitled to raise a section 85.39 
 
        issue at the hearing.
 
        
 
                                  STIPULATIONS
 
        
 
            Prior to the hearing, the parties entered into a number of 
 
        stipulations. The stipulations are as follows:
 
        
 
            1. The existence of an employer-employee relationship 
 
        between claimant and employer at the time of the alleged injury 
 
        is stipulated;
 
        
 
            2. That claimant sustained an injury on October 9, 1986, 
 
        which arose out of and in the course of employment with employer 
 
        is stipulated;
 

 
        
 
 
 
 
 
        
 
            3. That the alleged injury is a cause of temporary 
 
        disability during a period of recovery is stipulated;
 
        
 
            4. That the type of permanent disability, if the injury is 
 
        found to be a cause of permanent disability, is stipulated to be 
 
        a scheduled member disability;
 
        
 
            5. In the event of an award of weekly benefits, the rate of 
 
        weekly compensation is stipulated to be $171.42 per week; and,
 
        
 
            6. Defendant paid claimant 29.286 weeks of compensation at 
 
        the rate of $171.42 per week prior to hearing.
 
        
 
                                 FACTS PRESENTED
 
        
 
            Claimant sustained an injury to her left lower extremity 
 
        while working. The claimant was initially treated by the company 
 
        physician, Brian Masonholder, D.O. He, in turn, referred 
 
        claimant to Anthony D'Angelo, Jr., D.O., an orthopedic surgeon.
 
        
 
            Dr. D'Angelo commenced treatment of claimant. He evaluated 
 
        her. As of May 8, 1987, Dr. D'Angelo opined:
 
        
 
             Lisa Ahlf was last evaluated on 5-6-87. Skin has healed 
 
             providing coverage of the wound with scar tissue. Lisa was 
 
             complaining of the leg being "lazy", and by this meaning a 
 
             tendency towards weakness. Also, the skin has remained 
 
             sensitive. Examination revealed the are to be healing 
 
             satisfactorily. It has filled in with scar tissue which is 
 
             of poorer quality than surrounding normal skin, but at this 
 
             time the wound is closed over and there is no evidence of 
 
             infection. There has been minimal adherent scarring. There 
 
             is full knee and ankle ROM. There is a tendency to fatigue 
 
             as toe walking is performed on the left. I have advised 
 
             Lisa to allow a period of time as this area reconditions and 
 
             the scar matures. There is a possibility breakdown will 
 
             occur in the future, and in grafting will be needed. She 
 
             should work on stretching and strengthening exercises. It 
 
             may take 6 months or so for things to quiet down and reach 
 
             maximum improvement. I have dismissed Lisa from care and 
 
             asked that she follow up at your office returning here as 
 
             necessary. She was advised in unrestricted work duty.
 
             
 
             Dr. D'Angelo later evaluated claimant. On March 30, 1988, 
 
             the treating physician opined:
 
        
 
             Lisa Ahlf has been evaluated for impairment secondary to a 
 
             skin slough involving the left lower leg secondary to 
 
             trauma. There has been continued complaints of difficulties 
 
             with the healed scar tissue overlying the wound in terms of 
 
             loss of sensation, dryness and irritability. In addition, 
 
             patient has complained of pain involving the lateral aspect 
 
             of the lower leg just distal to the area of scar and about 
 
             the lateral border of the foot. Patient tells me there is 
 
             numbness involving the foot and swelling occurring on and 
 
             off. Examination revealed a 3.5 x 5.0 cm. healed wound over 
 
             the distal aspect of the left lower leg proximal to the 
 
             insertion of the Achilles' tendon. Ankle range of motion 
 
             was found to be complete. There was no significant 
 
             ligamentous laxity. Patient demonstrated full ability to 
 
             walk on toes and heels. Numbness was claimed about the 
 
             lateral and medial borders of the foot as well as the dorsum 
 
             of the foot and distally to the toe web spaces. Toe range 
 
             of motion was complete and patient can identify all of the 
 
             toes. Sensation to light touch was diminished at the 
 

 
        
 
 
 
 
 
             lateral and medial borders of the left foot.
 
             
 
             EMG and nerve conduction studies have been completed by Dr. 
 
             Worrell on 7-7-87 where evidence of a left sural neuropathy 
 
             was found.
 
             
 
             It is my opinion on the above basis there is a 10% 
 
             impairment of the left lower extremity. This is equivalent 
 
             to a 4% impairment of the whole person. The above is based 
 
             on The Guides to the Evaluation of Permanent Impairment 
 
             published by the American Medical Association in 1984.
 
             
 
             Claimant was also examined by Rouben Mirbegian, M.D., an 
 
             orthopedic surgeon. He evaluated claimant in August of 1988. In 
 
             his letter of August 9, 1988, Dr. Mirbegian opined:
 
        
 
             This patient, at the present moment, is complaining that she 
 
             has difficulty getting around and especially she made a 
 
             point that she has two Dodge cars that she has to sell 
 
             because she has a problem pushing the brakes with the left 
 
             foot. She also mentioned she has two cut nerves in her leg. 
 
             When I asked her to be up and around she was able to walk on 
 
             her tiptoes without any discomfort. She does have very well 
 
             healed scar right about her heel cord on the left lower leg 
 
             which goes along with history of injury. The area of 
 
             scarring is about 1 1/2" to 2" in length and maybe 1 1/2" 
 
             wide. One could feel very easily the heelcord [sic] 
 
             continuity is preserved. She has numbness in the scar area 
 
             and distal to it, again, that goes along with the good 
 
             possibility of involvement of sural nerve injury. She has 
 
             excellent range of motion of ankle and no instability was 
 
             noticed during that examination. The calf muscle appears to 
 
             have the same strength.
 
        
 
             You have asked me to evaluate her for permanent partial 
 
             disability. I think this patient definitely has involvement 
 
             of her sural nerve. This is not because she has been told 
 
             that she has two damaged nerves, she does have her EMG nerve 
 
             conduction study which goes along with involvement of this 
 
             sural nerve. They are sensory nerves and they do not cause 
 
             any weakness. Only problem that they do, if patient is 
 
             looking for it, is some dystasia and discomfort. Due to 
 
             that problem, the AMA Guideline disability permanent 
 
             evaluation on page 82 has given 5% permanent impairment of 
 
             the lower extremities due to sensory deficit, pain or 
 
             discomfort. I think that is all she has no matter what she 
 
             complains or how she shows herself in examining room.
 
             
 
             Claimant testified she also went to F. Dale Wilson, M.D., 
 
             for purposes of an examination and an evaluation. Dr. Wilson, in 
 
             his report of January 6, 1989, wrote in relevant portion:
 
        
 
             The injury that was sustained on Oct. 9, 1986 is the 
 
             causative factor with respect to symptoms, pathology and 
 
             impairment found on this examination. There are no 
 
             recommendations for further medical care. Some 
 
             consideration might be give [sic] to a cortisone shot about 
 
             the tendon but not without the approval of the attending 
 
             orthopedist.
 
             
 
             Restrictions to be imposed: The patient is not able to over 
 
             extend the function of this ankle or of this tendon. With 
 
             moderate protection it will eventually subside. Something 
 
             for relief of discomfort and a soft shoe is helpful.
 
        
 
             No further medical or surgical care is contemplated. The 
 

 
        
 
 
 
 
 
             present condition of ill being has reached an optimum period 
 
             of recovery, for that reason the findings must be considered 
 
             essentially permanent.
 
             
 
             The prognosis is favorable except the nerve, sensation in 
 
             the branch of that nerve is lost, this is sensory limited to 
 
             a narrow area and does not serve for motor function, is not 
 
             painful. The greatest problem at the moment is the painful 
 
             tendonitis, myositis in the gastroc [sic] muscle.
 
                       
 
             She has found a job within the limits of her physical 
 
             ability and is restricted only in lifting heavy weights. 
 
             She can handle ordinary weights satisfactory.
 
        
 
             Impairment evaluation:
 
                       
 
             Lower extremity;
 
                       
 
             A. Motion loss                      4%
 
             
 
             B. Pain, continuous                 3
 
             
 
             C. Weakness for weight lifting
 
                walking, dancing, driving
 
                "clutching"                      3
 
             
 
             D. Nerve loss                       5
 
             
 
             E. Deformity, ready swelling.
 
                scar                             3
 
             
 
             Headaches, she needs some reassurance
 
                       and settlement
 
                                 
 
                              Total             18% Extremity
 
        
 
                              Equals             7% Person
 
        
 
             Claimant testified she was off work as a result of her work 
 
             injury from October 24, 1986 to November 3, 1986. She reported 
 
             she returned to work on a light duty basis. Claimant stated she 
 
             continued working light duty until she was laid off on March 27, 
 
             1987. Claimant testified she received weekly benefits through 
 
             May 6, 1987. Claimant, on direct examination, testified she 
 
             commenced employment at Wiedeman's on August 28, 1987.
 
        
 
                                 APPLICABLE LAW
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of October 9, 1986, is causally 
 
             related to the disability on which she now bases her claim. 
 
             Bodish v. Fischer. Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 

 
        
 
 
 
 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             The right of a worker to receive compensation for injuries 
 
             sustained which arose out of and in the course of employment is 
 
             statutory. The statute conferring this right can also fix the 
 
             amount of compensation to be paid for different specific 
 
             injuries, and the employee is not entitled to compensation except 
 
             as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 
 
             268 N.W. 598 (1936).
 
        
 
            Permanent partial disabilities are classified as either 
 
        scheduled or unscheduled. A specific scheduled disability is 
 
        evaluated by the functional method; the industrial method is used 
 
        to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 
 
        252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
        Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
        332 N.W.2d 886, 887 (Iowa 1983).
 
        
 
                                      ANALYSIS
 
        
 
             Claimant has established by a preponderance of the evidence 
 
             that her work injury on October 9, 1986, is causally related to 
 
             the disability on which claimant now bases her claim. There is 
 
             sufficient medical testimony to support the causal connection. 
 
             Dr. Wilson, in his report of January 6, 1989, causally relates 
 
             claimant's disability to her work injury on October 9, 1986. No 
 
             other physician relates claimant's condition to an incident other 
 
             than the work injury of October 9, 1986. The requisite causal 
 
             connection has been established.
 
        
 
             The next issue to address is whether claimant sustained any 
 
             permanent partial disability to her left lower extremity. Three 
 
             physicians provided impairment ratings. One of the impairment 
 
             ratings was provided by the treating physician, Dr. D'Angelo. He 
 
             provided the rating of 10% of the left lower extremity. The 
 
             other two impairment ratings were five percent of the lower 
 
             extremity and 18 percent of the lower extremity. These were 
 
             provided by two physicians who were retained to examine and 
 
             evaluate claimant for purposes of this action. The two 
 
             physicians, Dr. Mirbegian and Dr. Wilson, only saw claimant on 
 
             one occasion each. They did not engage in active treatment of 
 
             claimant's condition.
 
        
 
            Dr. D'Angelo, on the other hand, saw claimant on more than 
 
        one occasion. He at least saw claimant on February 18, 1987, May 
 
        6, 1987, and in March of 1988. Dr. D'Angelo, a specialist in 
 
        orthopedic surgery, was retained to treat claimant. He had more 
 
        than minimum contacts with claimant. Greater weight is accorded 
 
        to the opinion of Dr. D'Angelo. See: Reliant v. Palco Inc., 
 
        Thirty-Second Biennial Report of the Industrial Commissioner 56 
 
        (1975); Dickey v. ITT Continental Baking Company, Thirty-Fourth 
 
        Biennial Report of the Industrial Commissioner 89 (1979). The 
 
        undersigned finds that claimant has a 10 percent permanent 
 
        partial disability to the left lower extremity.
 
        
 
            The third issue to address is whether claimant is entitled 
 
        to healing period benefits. Healing period is defined in section 
 
        85.34(1). The section provides:
 
        
 
             If an employee has suffered a personal injury causing 
 
             permanent partial disability for which compensation is 
 
             payable as provided in subsection 2 of this section, the 
 

 
        
 
 
 
 
 
             employer shall pay to the employee compensation for a 
 
             healing period, as provided in section 85.37, beginning on 
 
             the date of injury, and until the employee has returned to 
 
             work or it is medically indicated that significant 
 
             improvement from the injury is not anticipated or until the 
 
             employee is medically capable of returning to employment 
 
             substantially similar to the employment in which the 
 
             employee was engaged at the time of injury, whichever occurs 
 
             first.
 
             
 
             There is no question claimant was in the healing period from 
 
             October 24, 1986 to November 3, 1986, (1.429 weeks). Claimant 
 
             alleges she was also in the healing period from March 27, 1987, 
 
             the day claimant was laid off from her light duty position at 
 
             defendant's establishment until August 28, 1987, the day claimant 
 
             commenced her employment with Wiedeman's. Defendant contends 
 
             claimant is entitled to healing period benefits from March 27, 
 
             1987 to May 6, 1987.
 
        
 
             The undersigned determines claimant's healing period 
 
             involved the period from October 24, 1986 to November 3, 1986 and 
 
             from March 27, 1987 to May 6, 1987. Claimant was placed in a 
 
             light duty status by Dr. Masonholder. The light duty 
 
             restrictions were in effect until May 6, 1987. On May 6, 1987, 
 
             claimant was again examined. Claimant was informed she could 
 
             work without restrictions. However, during the aforementioned 
 
             time period, claimant had been laid off. Her layoff was due to a 
 
             project completion. It was not due to claimant's medical status. 
 
             As of May 6, 1987, claimant was medically able to return to a 
 
             position substantially similar to the one she held prior to the 
 
             date of her injury. Claimant's healing period ended on the date 
 
             her treating physician advised her she was on unrestricted duty. 
 
             The fact claimant was unable to locate employment until August 
 
             28, 1987, has no bearing upon the healing period determination.
 
        
 
            The next issue is whether defendant is entitled to assert a 
 
        section 85.33(3) claim. At the hearing there was no evidence 
 
        presented which would indicate to the undersigned that the facts 
 
        warranted a section 85.33(3) claim.
 
        
 
            The final issue to address is whether claimant is entitled 
 
        to raise a section 85.39 issue at hearing. Claimant is 
 
        requesting reimbursement for a $175.00 bill which was paid to Dr. 
 
        Wilson for an independent medical examination. It does not 
 
        appear a section 85.39 issue was raised at the prehearing 
 
        conference. The hearing assignment order, which was filed on 
 
        June 23, 1989, does not list a section 85.39 issue on its face. 
 
        The order does provide in paragraph three that:
 
        
 
                       3. Hearing Issues. As a result of the prehearing 
 
                                conference, only the following issues shall be 
 
                                considered at the hearing:
 
              ( ) Whether claimant received an injury which arose out of 
 
                  and in the course of employment;
 
                  (x) Whether there is a causal relationship between the 
 
                       alleged injury and the disability;
 
                  (x) Whether claimant is entitled to temporary 
 
                       disability/healing period benefits or permanent partial 
 
                       or total disability benefits;
 
                  (x)   85.33(3); 85.34(4)
 
                  
 
             Since a section 85.39 issue was not raised at the prehearing 
 
             conference, the issue cannot be initially raised at the hearing. 
 
             Therefore, claimant is not entitled to reimbursement for the 
 
             $175.00 payment to Dr. Wilson.
 
        
 

 
        
 
 
 
 
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
                  
 
             WHEREFORE, based on the evidence presented and the 
 
             principles of law previously stated, the following findings of 
 
             fact and conclusions of law are made:
 
             
 
             Finding 1. Claimant sustained an injury to her left lower 
 
             extremity as a result of a work injury on October 9, 1986.
 
             
 
             Finding 2. Claimant was off work as a result of her work 
 
             injury from October 24, 1986 to November 3, 1986 and from March 
 
             27, 1987 to May 6, 1987.
 
                       
 
             Conclusion A. Claimant is entitled to healing period 
 
             benefits for 7.286 weeks at the rate of one hundred seventy-one 
 
             and 42/100 dollars ($171.42) per week.
 
             
 
             Finding 3. Claimant returned to employment with another 
 
             employer on August 28, 1987.
 
             
 
             Finding 4. Claimant is not under current medical 
 
             restrictions.
 
             
 
             Conclusion B. Claimant has met her burden of proving she 
 
             has a ten percent permanent partial disability to the left lower 
 
             extremity as stated in section 85.34(2)(o).
 
             
 
             Finding 5. Claimant did not raise a section 85. 39 issue at 
 
             the prehearing conference.
 
                       
 
             Conclusion C. Claimant is not entitled to raise a section
 
             85.39 issue at the hearing.
 
             
 
                                      ORDER
 
                       
 
             THEREFORE, defendant is to pay unto claimant twenty-two (22 
 
             weeks of permanent partial disability benefits at the stipulated 
 
             rate of one hundred seventy-one and 42/100 dollars ($171.42) per 
 
             week as a result of the injury on October 9, 1986.
 
             
 
             Defendant is to also pay seven point two-eight-six (7.286) 
 
             weeks of healing period benefits at the stipulated rate of one 
 
             hundred seventy-one and 42/100 dollars (171.42) per week.
 
                       
 
             Payments that have accrued shall be paid in a lump sum 
 
             together with statutory interest thereon pursuant to Iowa Code 
 
             section 85.30.
 
             
 
             Defendant shall be given credit for all benefits previously 
 
             paid to this claimant.
 
        
 
             Costs of the action are assessed against defendant pursuant 
 
             to Division of Industrial Services Rule 343-4.33.
 
             
 
             Defendant shall file a claim activity report upon payment of 
 
             this award.
 
             
 
        
 
            Signed and filed this 7th day of December, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                           MICHELLE A. McGOVERN
 

 
        
 
 
 
 
 
                                           DEPUTY INDUSTRIAL 
 
        COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. David W. Newell
 
        Attorney at Law
 
        323 E 2nd St.
 
        P O Box 175
 
        Muscatine IA 52761
 
        
 
        Mr. Marlon D. Mormann
 
        Attorney at Law
 
        P O Box 515
 
        Dept #41
 
        Dakota City NE, 68731
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                                          5-1803.1
 
                                          Filed December 7, 1989
 
                                          MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LISA AHLF,
 
                                              File No. 832497
 
            Claimant
 
                                           A R B I T R A T I O N
 
        vs.
 
                                              D E C I S I O N
 
        IBP, INC.,
 
        
 
            Employer,                
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
            5-1803.1
 
        
 
             Claimant awarded a 10 percent permanent partial disability 
 
             to the lower extremity as a result of a work injury.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GARRY J. SEAVER,
 
         
 
              Claimant,
 
                                                      File No.  832511
 
                                                      
 
         VS.                                         A R B I T R A T I 0 N 
 
         GRIFFIN WHEEL COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Garry J. 
 
         Seaver against his employer, Griffin Wheel Company.  Seaver seeks 
 
         permanent partial disability compensation based upon an injury to 
 
         his back which occurred on August 29, 1986.. The only issue 
 
         identified for determination is claimant's entitlement to 
 
         compensation for permanent partial disability.
 
         
 
              The hearing was conducted on July 12, 1989 at Burlington, 
 
         Iowa.  The evidence in the case consists of testimony from Twila 
 
         Seaver, Kristina Seaver, Garry J. Seaver and Rose Harmon.  The 
 
         record also contains joint exhibits 1 through 9.
 
         
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Garry J. Seaver is a 42-year-old high school graduate who 
 
         had been a self-employed carpenter prior to commencing employment 
 
         with Griffin Wheel Company in approximately 1982.  Seaver injured 
 
         his back while picking up a 100-pound bag of precast.  Claimant's 
 
         primary treating neurosurgeon was 0. Gerald Orth, M.D. Claimant 
 
         was also treated by other physicians.
 
         
 
              During the course of claimant's treatment following the 
 
         injury, a CT scan was performed which identified bulging, but not 
 
         herniated, lumbar discs (exhibit 1, page 3; exhibit 4, page 24).  
 
         In a progress note dated September 9, 1986, Robert Kemp, M.D., 
 
         had indicated that the bulge was sufficient to cause symptoms.
 
         
 
         
 
         SEAVER V. GRIFFIN WHEEL COMPANY
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              After several weeks of conservative treatment, Dr. Orth 
 
         released claimant to return to work.
 
         
 
              Dr. Orth indicated that, when he examined claimant on 
 
         December 10, 1986, claimant exhibited fairly good motor strength 
 
         with a slight difference in frequency and activity of the 
 
         extensor hallicis on the right.  His heel walking was minimally 
 
         impaired.  His sensation was intact and bending was not 
 
         restricted (exhibit 7, pages 11 and 12; exhibit 3, page 10).  
 
         Claimant did, however, exhibit an abnormal straight leg raising 
 
         test at that time (exhibit 7, page 24).
 
         
 
              Dr. Orth was unable to state whether the bulging disc was 
 
         caused by the 1986 injury (exhibit 7, pages 21 and 22).  Dr. Orth 
 
         also indicated that the 1985 back injury which claimant had 
 
         sustained while cutting wood was not necessarily a factor in the 
 
         1986 injury (exhibit 7, page 21).
 
         
 
              When questioned regarding permanent impairment, Dr. Orth 
 
         stated that he would be hard pressed to give claimant much of a 
 
         permanent disability rating in view of the neurological findings 
 
         and symptomatology, but that he did not address an impairment 
 
         when he last examined claimant (exhibit 7, pages 19, 24 and 25).  
 
         Dr. Orth stated that he had not seen claimant for approximately 
 
         two years and that if claimant does currently exhibit some 
 
         objective symptoms, then a rating might be appropriate (exhibit 
 
         7, pages 19 and 20)..
 
         
 
              Claimant was evaluated in February, 1989, by Rickie C. 
 
         Courtney, D.C. Dr. Courtney rated claimant as having a 15 percent 
 
         permanent impairment under the AMA guidelines (exhibit 8, page 
 
         7).  Dr. Courtney also stated that the 1986 work injury was the 
 
         cause of the impairment (exhibit 8, pages 8, 15, 16 and 17).  Dr. 
 
         Courtney stated that claimant was susceptible to further injury 
 
         as a result of the 1986 injury (exhibit 8, page 26).
 
         
 
              Garry J. Seaver testified that he was in good health and 
 
         physically unrestricted prior to the August 29, 1986 injury.  He 
 
         stated that he had injured his back previously, but always 
 
         recovered from those incidents.  Seaver testified that he has not 
 
         fully recovered from the 1986 injury and has residual pain.  He 
 
         related difficulty with activities such as riding in a car and 
 
         bending at the waist.  He stated that he would be unable to 
 
         perform all the activities normally performed by a carpenter due 
 
         to the condition of his back.
 
         
 
              Claimant has, however, done remodeling on his own home in 
 
         recent years.  He installed a front porch.  He has remained 
 
         employed at Griffin Wheel Company, currently in a position which 
 
         consists primarily of pushing buttons.  He did, however, during 
 
         the summer of 1988, bid to perform the same job as the one in 
 
         which he was injured in 1986.  He apparently performed
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         SEAVER V. GRIFFIN WHEEL COMPANY 
 
         Page 3
 
         
 
         
 
         the job without major difficulties.  Seaver's new job provides a 
 
         higher rate of pay than the job that he held at the time of 
 
         injury in 1986.
 
         
 
              Claimant's spouse and daughter confirmed that claimant was 
 
         physically unrestricted prior to the injury, but since the injury 
 
         in 1986 has restricted his activities and altered the way in 
 
         which he performs some activities.
 
         
 
                           APPLICABLE LAW AND ANALYSIS.
 
                                        
 
              Claimant's testimony regarding his continuing symptoms and 
 
         complaints is accepted as correct.  He does have a bulging disc 
 
         which a medical practitioner has indicated is sufficient to cause 
 
         symptoms.  Whether or not an impairment rating is warranted under 
 
         the terms of the AMA guidelines, it is clear that claimant does 
 
         have a physical abnormality which impairs his ability to engage 
 
         in activities.  While the physical limitations are small, they 
 
         are not nonexistent.  It is therefore determined that claimant 
 
         did sustain permanent injury to his back as a result of the 
 
         August 29, 1986 injury.
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.   Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Functional.impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              The impact of the injury has been almost totally negated by 
 
         the employer's action in retaining claimant in its workforce in a 
 
         position that claimant can perform.  He has suffered no actual 
 
         reduction of earnings.  Earning capacity is not, however, judged 
 
         entirely by a single job or position.  Claimant does have an 
 
         objective basis for his complaints.  His testimony that he was 
 
         symptom free prior to the 1986 injury is relied
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SEAVER V. GRIFFIN WHEEL COMPANY 
 
         Page 4
 
         
 
         
 
         upon to determine that the bulging disc and symptoms it produces 
 
         were caused by that 1986 injury, despite the uncertainty 
 
         expressed by Dr. Orth.  When all the material factors of 
 
         industrial disability are considered, it is determined that Garry 
 
         J. Seaver has a five percent permanent partial disability as a 
 
         result of the August 29, 1986 injury.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. The injury that Garry Seaver sustained on August 29, 1986 
 
         was a substantial factor in producing the bulging discs which 
 
         have been identified in his lumbar spine and also of producing 
 
         the symptoms of back pain and physical limitations which he 
 
         described at hearing.
 
         
 
              2. Claimant has a small permanent impairment, less than five 
 
         percent of the whole person, as a result of the August 29, 1986 
 
         injury.
 
         
 
              3. Claimant's physical limitations restrict him from 
 
         performing some strenuous activities.
 
         
 
              4. Claimant's general earning capacity has been impaired by 
 
         five percent as a result of the August 29, 1986 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Garry J. Seaver has a five percent permanent partial 
 
         disability affecting his back which was proximately caused by the 
 
         August 29, 1986 injury.
 
         
 
              3. Seaver is entitled to recover 25 weeks of compensation 
 
         for permanent partial disability under the provisions of Iowa 
 
         Code section 85.34(2)(u).
 
         
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that defendant Griffin Wheel Company 
 
         pay Garry Seaver twenty-five (25) weeks of compensation for 
 
         permanent partial. disability at the stipulated rate of three 
 
         hundred twenty-three and 13/100 dollars ($323.13) per week 
 
         payable commencing December 11, 1986.  The entire amount thereof 
 
         is past due and owing and shall be paid in a lump sum together 
 
         with interest pursuant to Iowa Code section 85.30.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              IT IS FURTHER ORDERED that the employer pay the costs of 
 
         this proceeding including one hundred twenty-four and 10/100 
 
         dollars ($124.10) for the costs of the transcript of Dr. Orth's 
 
         deposition.
 
         
 
         
 
         
 
         SEAVER V. GRIFFIN WHEEL COMPANY
 
         Page 5
 
         
 
         
 
              IT IS FURTHER ORDERED that the employer file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 24th day of July, 1989.
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa 52632
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 51402.40, 1803
 
                                                 Filed July 24, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARRY J. SEAVER,
 
         
 
              Claimant,
 
                                                      File No. 832511
 
         VS.
 
         
 
         GRIFFIN WHEEL COMPANY,
 
                                                 A R B I T R A T I 0 N 
 
                                                                     
 
                                                   D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51402.40, 1803
 
         
 
              Claimant sustained a back injury.  He had residual 
 
         complaints and a diagnosed bulging disc.  Such was held 
 
         sufficient to award a small amount of permanent partial 
 
         disability.  The treating neurosurgeon had not assigned an 
 
         impairment rating.  A chiropractor had assigned a 15 percent 
 
         impairment rating.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID A. SHINN,
 
         
 
              Claimant,                              File Nos. 832600
 
                                                               852510
 
         vs.
 
                                                  A R B I T R A T I O N
 
         MIDWEST ROOFING COMPANY,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         LIBERTY MUTUAL,                               JUN 25 1990
 
         
 
              Insurance Carrier,                   INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              These are consolidated proceedings in arbitration upon 
 
         claimant's petitions filed October 26, 1987.  Claimant sustained 
 
         two separate burn injuries on September 5, 1986 (832600) and May 
 
         13, 1987 (852510).  He now seeks benefits under the Iowa Workers' 
 
         Compensation Act from defendant employer Midwest Roofing Company 
 
         and defendant insurance carrier Liberty Mutual Insurance Company.
 
         
 
              Hearing on the petition for arbitration was had in Mason 
 
         City, Iowa, on March 27, 1990.  The record consists of claimant's 
 
         exhibits 1 through 22, defendants' exhibits A through E, both 
 
         inclusive, and the testimony of claimant, Cindy Shinn and Steve 
 
         Blickenderfer.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties have 
 
         stipulated:  that an employment relationship existed between 
 
         claimant and employer at all times relevant; that claimant 
 
         sustained injuries on September 5, 1986 and May 13, 1987, arising 
 
         out of and in the course of that employment; that the injuries 
 
         caused temporary disability; that the appropriate rate of 
 
         compensation in case number 832600 is $142.93, and that 
 
         claimant's marital status was married and he was entitled to five 
 
         exemptions with respect to case number 852510; that all requested 
 
         medical benefits have been or will be paid by defendants; that in 
 
         case number 832600 defendants paid benefits at the rate of 
 
         $142.93 from June 6, 1986 through November 10, 1986 and permanent 
 
         partial disability benefits of $1,786.63, while paying temporary 
 
         total disability benefits totalling $109.46 with respect to case 
 
         number 852510.
 
         
 
              Issues presented for resolution include:  whether the work 
 
         injury of September 5, 1986 caused permanent disability (claimant 
 
         seeks no permanent partial disability benefits with respect to 
 
         case number 852510); the extent of claimant's entitlement to 
 
         compensation for temporary total disability or healing period; 
 
         the extent of claimant's entitlement to compensation for 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         permanent disability, the type of disability and the commencement 
 
         date thereof; the appropriate rate of weekly compensation in case 
 
         number 852510; whether claimant is entitled to mileage costs 
 
         under Iowa Code section 85.27; and, whether a penalty should be 
 
         imposed under Iowa Code section 86.13 in case number 832600.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy, having heard the testimony and 
 
         considered all of the evidence, finds:
 
         
 
              Claimant began working for defendant in approximately May or 
 
         June, 1986 as a roofer/truck driver.  The injury of September 5, 
 
         1986 occurred when he tripped while carrying a bucket of hot 
 
         roofing tar.  Claimant suffered burns to the left arm, neck, ear 
 
         and face.  Claimant exhibited his burns in the courtroom.  His 
 
         arm showed scars on the top and side of the forearm to just above 
 
         the elbow.  The lobe and edge of his left ear are deformed and in 
 
         part absent.  Claimant is apparently not unduly self-conscious of 
 
         this deformity, since he wears an earring in the ear.  This 
 
         writer observed that claimant has minor scarring to the face and 
 
         neck, but that it requires close observation and inspection to be 
 
         seen. Claimant sported a full beard at the time of hearing.
 
         
 
              The injury of May 13, 1987 again occurred when hot tar 
 
         splashed, causing burns to both arms, the neck and the side of 
 
         claimant's face.  However, this burn was much less serious, 
 
         consisting of spattered drops rather than what claimant described 
 
         as large "globs" as was the case in 1986.  Claimant returned to 
 
         work for half a day on May 26, 1987.  Thereafter, the employment 
 
         relationship came to an end, although the parties dispute whether 
 
         claimant quit employment or was discharged.  Because this 
 
         decision holds that claimant is not to be compensated 
 
         industrially, it is unnecessary to resolve the disputed issue as 
 
         to the nature of that separation.
 
         
 
              Claimant currently complains of numbness, weakness and 
 
         cramping in his left arm, scarring to the arm, neck, face and 
 
         ear, cramping of the neck, and a hearing loss in the left ear. 
 
         Claimant's burn scars are typical of burn scars in general in 
 
         that he is bothered by temperature extremes, an inability to 
 
         sweat and decreased sensation.  Claimant indicated that he must 
 
         cover his ear and arm in cold weather and that direct sun causes 
 
         blistering.
 
         
 
              Claimant's primary treating physician was John K. MacGregor, 
 
         M.D.  Dr. MacGregor wrote on November 10, 1986 that final 
 
         examination showed complete healing of burns.  On January 19, 
 
         1987, Dr. MacGregor wrote that claimant had been seen for final 
 
         checkup following third degree burns of the left forearm, neck 
 
         and ear.  Claimant was described as having essentially good 
 
         healing following skin grafting, except for keloid formation in 
 
         the burned areas around the grafted sites on the left forearm 
 
         flexor surface. Claimant apparently requested that he write 
 
         regarding "disability."  Dr. MacGregor opined that claimant "can 
 
         be classified as having a 5% disability of use of his left 
 
         forearm but he has been returned to work and in my opinion will 
 
         be able to resume complete function of the arm within the next 
 
         4-6 months." Dr. MacGregor wrote on February 19, 1990, that 
 
         claimant had not been seen since May 21, 1987 (reference the 
 
         second burn).  He emphasized that claimant should protect his 
 
         grafted skin from sun by use of a garment or sunscreen lotion.  
 
         Dr. MacGregor stated that his estimate of disability.still fell 
 
         within the five percent range with regard to the flexor surface 
 
         of the forearm.  Dr. MacGregor made no reference to his earlier 
 
         expectation that claimant would be able to resume complete 
 
         function of the arm and did not indicate what factors caused him 
 
         to change his opinion. However, it should be noted that May 21 is 
 
         within the 4-6 month time frame from January 19, so it may be 
 
         assumed that claimant failed to recover to the extent Dr. 
 
         MacGregor originally anticipated.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. MacGregor's February 19 letter is marked as "Received" 
 
         in claimant's attorney's office on March 5, 1990.  Defendants' 
 
         brief asserts that this letter was not received by defendant 
 
         insurance carrier until the first week of March.  In any event, 
 
         this letter apparently triggered voluntary payment of $1,786.63 
 
         in permanency benefits which claimant testified he received about 
 
         one week prior to the hearing date of March 27, 1990.  This was 
 
         the first payment of any permanent disability benefits.  The 
 
         check was dated March 9, 1990.
 
         
 
              Dr. MacGregor did not impose any restrictions except 
 
         advising claimant to protect his burned areas from weather 
 
         exposure by means of clothing or sunscreen.
 
         
 
              Claimant was also seen by two of Dr. MacGregor's associates. 
 
         R. E. Schurtz, M.D., examined claimant with respect to his left 
 
         ear and tested his hearing.  He wrote on September 30, 1986 that 
 
         he was unable to document any significant hearing loss on the 
 
         left side.  Claimant was also seen by Luis A. Garcia, M.D., of 
 
         the same office with respect to hearing problems.  Dr. Garcia 
 
         wrote on May 21, 1987 that claimant had a very mild hearing loss 
 
         in the left ear and a moderate hearing loss in the right ear.  On 
 
         November 16, 1987, Dr. Garcia wrote to recommend that, because of 
 
         an increase of susceptibility to frostbite of the ear, claimant 
 
         should wear some ear covering when outdoors for longer than five 
 
         minutes in temperatures of less than 32 degrees.
 
         
 
              On June 10, 1988, Dr. Garcia wrote that claimant had 
 
         sustained a mild hearing loss to the left ear which he found to 
 
         be causally related to the 1986 burn.  However, he further 
 
         specified that the "hearing loss is very mild and he would not 
 
         qualify for any disability."
 
         
 
              Claimant was also seen for evaluation at the University of 
 
         Iowa Hospitals and Clinics in 1989.  Lee A. Harker, M.D., wrote 
 
         on December 12 of that year that claimant had no hearing 
 
         impairment due to the 1986 burn, that the loss of hearing 
 
         confined to the 4,000-6,000 Hz. region would not have been caused 
 
         by the hot tar injury and that the total magnitude of impairment 
 
         was insufficient to result in any hearing loss according to 
 
         American Medical Association guidelines.
 
         
 
              G. P. Kealey, M.D., Medical Director of the Burn Treatment 
 
         Center at the University of Iowa Hospitals and Clinics, wrote on 
 
         October 23, 1986 that claimant's wounds were then healing nicely, 
 
         but that the skin was very fragile and would require special 
 
         attention to avoid trauma and exposure to temperature extremes. 
 
         Dr. Kealey subsequently saw claimant for evaluation on August 31, 
 
         1989.  He thereafter wrote,that claimant complained of increased 
 
         sensitivity to environmental factors including extremes of heat, 
 
         cold and ultraviolet light, that:he did not sweat, that he had 
 
         decreased sensation and some problem with tightness of the skin 
 
         in the left upper extremity with weakness in the left arm and 
 
         decreased function of the left hand.  Dr. Kealey on physical 
 
         examination found the burn wounds well healed.  The grafted areas 
 
         showed a pattern of hypo- and hyperpigmentation along with a 
 
         moderate degree of hypertrophic scarring, especially over the 
 
         forearm.  The left ear was thin with a small loss of the superior 
 
         rim with a centimeter square scar on the anterior ear.  There was 
 
         a two by seven centimeter band of decreased coloration of skin 
 
         inferior to the left ear.  Although claimant was able to grow 
 
         facial hair, the underlying skin was hypopigmented and unable to 
 
         tan normally on exposure to sunlight.  Claimant had full range of 
 
         motion of the left arm, head, neck and shoulder with normal 
 
         strength in the left arm.  On sensory examination, claimant had 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         loss of sharp and dull discrimination, decreased sensation to 
 
         light touch at the site of the forearm burn and diminished 
 
         discrimination to touch on the left ear.  Sensation was intact on 
 
         the face and neck.  Dr. Kealey noted that claimant's complaints 
 
         of loss of endurance, strength and numbness to the left hand were 
 
         inconsistent with a burn injury and were perhaps more suggestive 
 
         of a carpal tunnel or nerve compression syndrome.  He specified 
 
         that he did not believe these symptoms to have resulted from the 
 
         burn injury.  "It seems on review of your symptoms that your 
 
         greatest limitation is your increased susceptibility and 
 
         sensitivity to environmental factors over the wound areas such as 
 
         extremes of heat and cold, and ultraviolet sunlight intolerance"
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, Dr. Kealey felt that claimant belonged in a Class 
 
         Two skin disease category pursuant to the American Medical 
 
         Association Guides to the Evaluation of Permanent Impairment in 
 
         that he had signs and symptoms of a skin disorder, the need for 
 
         intermittent treatment and limitation in the performance of some 
 
         of the activities in daily living.  Claimant would require 
 
         applications of skin lotions and emollients to control dryness, 
 
         itching and lack of lubrication, had a definite loss of sensation 
 
         and would have a definite and long-term intolerance to sunlight 
 
         in the grafted areas.  Dr. Kealey assigned claimant a 15 percent 
 
         "disability" to the body as a whole which he deemed permanent.
 
         
 
              Claimant has accumulated 1,184 miles of unreimbursed mileage 
 
         in his pursuit of medical treatment.
 
         
 
              Claimant was paid an hourly wage of $4.50, time and a half 
 
         for overtime.  Time records in evidence reflect that the last 
 
         full pay week prior to the 1987 burn injury ended on May 9, 1987. 
 
         During the 13 weeks prior, claimant worked a total of 262.75 
 
         hours, although some of those hours were paid at the overtime 
 
         rate.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The parties have stipulated that both injuries arose out of 
 
         and in the course of employment and that each caused temporary 
 
         disability.
 
         
 
              Under Iowa Code section 85.34(1), healing period is 
 
         compensable beginning on the date of injury and until the 
 
         employee has returned to work, it is medically indicated that 
 
         significant improvement from the injury is not anticipated, or 
 
         until the employee is medically capable of returning to 
 
         substantially similar employment, whichever first occurs.
 
         
 
              With respect to the 1986 injury, claimant is entitled to 
 
         healing period benefits through November 10, 1986.  On this date, 
 
         the treating physician specified that a final examination showed 
 
         complete healing of claimant's burns.  Even though Dr. Kealey had 
 
         earlier released claimant on a "PRN" (patient return as needed) 
 
         basis, it seems clear that claimant needed continued therapy and 
 
         that this statement was not indicative of claimant having 
 
         attained maximum medical improvement.  Therefore, claimant shall 
 
         be awarded 9 weeks, 3 days of healing period benefits at the 
 
         stipulated rate of $142.93.
 
         
 
              The parties further dispute whether the 1986 work injury 
 
         caused permanent disability and, if so, the nature of the same. 
 
         There is no suggestion of any intervening cause; the issue is 
 
         whether claimant actually sustained any permanent disability at 
 
         all.
 
         
 
              Claimant alleges damage to his left arm, neck, head, ear and 
 
         hearing.  Although claimant may have some mild diminishment of 
 
         his hearing (even this is debatable, as Dr. Harker opined that 
 
         the hearing loss was not related to the work injury), the medical 
 
         evidence is unanimous that claimant did not sustain any ratable 
 
         hearing loss.  This evidence is more persuasive than the 
 
         subjective view of claimant and his wife as to the extent of 
 
         hearing loss.  It is held that claimant has not established 
 
         permanent disability with respect to hearing loss.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has suffered disfigurement of the head and ear.  
 
         This writer observed facial disfigurement to be very minor indeed.  
 
         While claimant has noticeable disfigurement to the ear, he seems 
 
         not unduly self-conscious about the defect, since it is ornamented 
 
         with an earring.  In any event, the writer's observations convince 
 
         him that facial scarring is not such as to impact upon claimant's 
 
         future usefulness and earnings in his occupation at the time of 
 
         receiving the injury, that of roofer/truck driver.  See Iowa Code 
 
         section 85.34(2)(t).  The "employee's occupation" used in the 
 
         statute refers to the job or industry in which claimant was 
 
         working at the time of injury rather than the specific employment 
 
         relationship in which he was engaged at the time.  Byrnes v. 
 
         Donaldson's, Inc., 451 N.W.2d 810 (Iowa 1990).  Of course, 
 
         claimant actually did come back to work for the same employer and 
 
         held employment in the same job up to and even after (if by only 
 
         half a day) the 1987 burn injury.  Claimant has simply failed to 
 
         establish such disfigurement as would impair his future usefulness 
 
         and earnings in the occupation of roofer or truck driver.  
 
         Therefore, even though claimant clearly sustained injury to his 
 
         face and ear, he has not shown compensable permanent disability by 
 
         reason of that disfigurement.
 
         
 
              There is nothing in the record that would indicate claimant 
 
         has sustained permanent impairment with respect to his neck burn, 
 
         except to the extent that his burn should be protected from 
 
         direct sunlight.
 
         
 
              Claimant also sustained a burn injury to the arm.  There is 
 
         a dispute in the medical evidence as to the extent to which 
 
         claimant has sustained permanent impairment or disability to the 
 
         arm.  Dr. Kealey did not rate the arm burn separately, although 
 
         he assigned a (rather generous) 15 percent impairment rating of 
 
         the whole person based on the finding that claimant belonged in a 
 
         Class Two skin disease category.  He specified that claimant's 
 
         complaints of loss of endurance, strength and numbness to the 
 
         hand were inconsistent with a burn injury, but suggestive of 
 
         carpal tunnel or nerve compression syndrome.  The treating 
 
         physician, Dr. MacGregor, was somewhat ambivalent.  On January 
 
         19, 1987, he opined that claimant had a five percent disability 
 
         of use of the left forearm, but anticipated resumption of 
 
         "complete function" of the arm within 4-6 months.  However, Dr. 
 
         MacGregor saw claimant again during that 4-6 months and 
 
         eventually opined on February 19, 1990, that claimant still fell 
 
         within that five percent impairment range.  Given that Dr. 
 
         Kealey's whole body rating included the arm burn as a component 
 
         with respect to environmental factors, it is held that claimant 
 
         has met his burden of proof in establishing a permanent 
 
         impairment to the arm to the extent of five percent.
 
         
 
              Claimant is of the view that he  has sustained industrial 
 
         disability to the body as a whole, while defendants are of the 
 
         view that his impairment, if any, is limited to the arm, a 
 
         scheduled member.  Of course, with respect to permanent 
 
         disability, it is the disability that is compensated, rather than 
 
         the injury.  That is to say, while claimant's injury extends 
 
         beyond the arm, his compensable permanent disability does not. 
 
         This is significant in that disability to the body as a whole is 
 
         compensated industrially, rather than by the schedule.  Although 
 
         this opinion does not discuss the various indices of industrial 
 
         disability since it is not awarded, it should be parenthetically 
 
         noted that claimant would have been found to have.sustained zero 
 
         industrial disability if his injury had been to the body as a 
 
         whole.  Briefly, claimant has no medical restrictions other than 
 
         wearing garments or sunscreen to protect his skin grafts in 
 
         temperature extremes.  It is clear to this observer that claimant 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         would have been able to continue his employment as a roofer/truck 
 
         driver or any number of other occupations with no diminution of 
 
         his earning capacity.  Diederich v. Tri-City R. Co., 219 Iowa 
 
         587, 258 N.W. 899 (1935).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Based on the foregoing, claimant shall be compensated on the 
 
         basis of a five percent loss of use of his arm, a scheduled 
 
         member under Iowa Code section 85.34(2)(m), for a total of 12.5 
 
         weeks. Based on a stipulated rate of $142.93, claimant is 
 
         entitled to an award of $1,786.63.  However, the commencement 
 
         date for payment of permanent disability benefits is November 11, 
 
         1986.  Defendants have actually paid claimant the full amount of 
 
         benefits owing, but not until 1990.  Claimant is entitled to 
 
         interest on this award.
 
         
 
              Claimant further seeks penalty benefits under Iowa Code 
 
         section 86.13, unnumbered paragraph 4.  The statute provides for 
 
         penalty benefits up to 50 percent of the amount of benefits 
 
         unreasonably delayed without reasonable or probable cause or 
 
         excuse.  Claimant was paid the healing period benefits to which 
 
         he was entitled, except for one day (benefits were commenced on 
 
         September 6, 1986 pursuant to the prehearing report).  Defendants 
 
         have offered no evidence showing reasonable or probable cause or 
 
         excuse for the delay in paying one day of healing period 
 
         benefits. Now, three and one-half years later, it appears 
 
         appropriate to impose a full 50 percent penalty even on that 
 
         minimal amount.
 
         
 
              However, a different result obtains with respect to the 
 
         long-delayed payment of permanent partial disability benefits. 
 
         Defendants did have reasonable cause to deny liability based on 
 
         permanent disability because the treating physician, Dr. 
 
         MacGregor, opined on January 19, 1987 that he anticipated 
 
         claimant resuming complete function of his arm within the next 
 
         4-6 months. As has been seen, claimant did not sustain other 
 
         compensable permanent disability.  It was reasonable in this case 
 
         to rely upon the treating physician's opinion that no permanent 
 
         disability would result where that is the only permanent 
 
         disability for which liability is found to exist.
 
         
 
              Temporary total disability is compensable under Iowa Code 
 
         sections 85.32 and 85.33.  Where incapacity does not extend 
 
         beyond the fourteenth day following the date of injury, 
 
         compensation is payable from the fourth day of disability until 
 
         the employee has returned to work or is medically capable of 
 
         returning to substantially similar employment, whichever first 
 
         occurs.  Claimant was temporarily disabled from May 13, 1987 
 
         through May 25, 1987 as a result of his 1987 burn injury.  He 
 
         returned to work on May 26, 1987, although he worked only 
 
         one-half day and the employment relationship thereafter came to 
 
         an end.  As this is less than fourteen days, compensation is 
 
         payable from May 17 through May 25, 1987, a total of one week, 
 
         two days.
 
         
 
              The parties dispute the appropriate rate of compensation 
 
         with respect to the 1987 injury, but stipulated that claimant's 
 
         marital status was married and that he was entitled to five 
 
         exemptions.  Claimant was paid an hourly wage of $4.50 at the 
 
         time of this injury.  His rate must be calculated under Iowa Code 
 
         section 85.36(6), as he was paid on an hourly basis.  Weekly 
 
         earnings under that statute are computed by dividing by 13 the 
 
         earnings, not including overtime or premium pay, earned in the 
 
         last completed period of 13 consecutive calendar weeks 
 
         immediately preceding the injury.  As has been seen, claimant 
 
         worked 262.75 hours during those 13 consecutive weeks, although 
 
         some of those hours were paid at an overtime or premium rate.  
 
         Two hundred sixty-two point seven five multiplied by $4.50 
 
         results in a product of $1,182.38.  Division by 13 yields an 
 
         average weekly wage of $90.95.  The "Guide to Iowa Workers' 
 
         Compensation Claim Handling" published by this office and 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         effective July 1, 1986, was in force and effect at the time of 
 
         this injury on May 13, 1987. The guide shows that a married 
 
         individual with five exemptions and a gross weekly wage of $91.00 
 
         is entitled to a benefit rate of $79.03.  One week, two days of 
 
         benefits (1.286 weeks) is $101.63. The parties have stipulated 
 
         that claimant was paid temporary total disability with respect to 
 
         this injury totalling $109.46, which is in excess of his 
 
         entitlement.  These claims have been consolidated.  Defendants 
 
         shall be allowed to take credit for the excess payment of 
 
         benefits in this claim as against the award in file number 
 
         832600.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant also seeks transportation expenses based on mileage 
 
         of 1,184 miles.  Under Division of Industrial Services Rule 
 
         343-8.1(2), mileage incident to the use of a private automobile 
 
         is reimbursable at the same rate as the state of Iowa reimburses 
 
         its employees for travel, which is $.21 per mile.  Therefore, 
 
         claimant shall be awarded mileage expenses of $248.64.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              In case number 852510, defendants are to pay unto claimant 
 
         one (1) week, two (2) days temporary total disability benefits 
 
         (1.286 weeks) at the rate of seventy-nine and 03/100 dollars 
 
         ($79.03) per week, totalling one hundred one and 63/100 dollars 
 
         ($101.63).
 
         
 
              In case number 832600, claimant shall be awarded healing 
 
         period benefits of nine (9) weeks, three (3) days (9.429 weeks) 
 
         at the stipulated rate of one hundred forty-two and 93/100 
 
         dollars ($142.93) per week, totalling one thousand three hundred 
 
         forty-seven and 69/100 dollars ($1,347.69).
 
         
 
              Also in case number 832600, defendants shall pay twelve 
 
         point five (12.5) weeks of permanent partial disability benefits 
 
         at the stipulated rate of one hundred forty-two and 93/100 
 
         dollars ($142.93) per week, totalling one thousand seven hundred 
 
         eight-six and 63/100 dollars ($1,786.63).
 
         
 
              Defendants shall be entitled to credit for all payments made 
 
         on a voluntary basis prior to hearing, but for purposes of 
 
         calculating interest, said credit shall be allowed only as of the 
 
         dates such benefits were paid.
 
         
 
              As all weekly benefits have accrued, any unpaid benefits 
 
         shall be paid in a lump sum together with statutory interest 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              In case number 832600, defendants shall pay penalty benefits 
 
         of fifty percent (50%) of one (1) day (.143 weeks) at the 
 
         stipulated rate of one hundred forty-two and 93/100 dollars 
 
         ($142.93) per week, totalling ten and 22/100 dollars ($10.22). 
 
         Interest shall accrue on this award from the filing date of this 
 
         decision.
 
         
 
              In case number 832600, defendants shall pay mileage expenses 
 
         of two hundred forty-eight and 64/100 dollars ($248.64).  
 
         Interest shall accrue from the filing date of this decision.
 
         
 
              Costs of both actions are assessed to defendants pursuant.to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports in connection 
 
         with both files as requested by this agency pursuant to Division 
 
         of Industrial Services Rule 343-3.1.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Signed and filed this 25th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Jeffrey J. Greenwood
 
         Mr. Kevin R. Rogers
 
         Attorneys at Law
 
         528 West Fourth Street
 
         P.O. Box 1200
 
         Waterloo, Iowa  50704
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803.1
 
                                            Filed June 25, 1990
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID A. SHINN,
 
         
 
              Claimant,
 
         
 
         vs.                                        File Nos. 832600
 
                                                              852510
 
         MIDWEST ROOFING COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Burn injury to arm, face, neck and ear caused permanent 
 
         disability only to arm and was compensated per the schedule.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CALISTA E. SCHMELL,
 
         
 
              Claimant,                              File No. 832843
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         BRAMMER MANUFACTURING,                      D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAY 11 1990
 
         WAUSAU INSURANCE COMPANIES,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Calista E. 
 
         Schmell Sanderson, claimant, against Brammer Manufacturing, 
 
         employer, and Wausau Insurance Company, insurance carrier, 
 
         defendants.  The case was heard by the undersigned on January 3, 
 
         1990, in Davenport, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of claimant's exhibits 1-13 and defendants' 
 
         exhibits A-F.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on January 3, 1990, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits; and,
 
         
 
              2.  Whether claimant is an "odd-lot" employee.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury.
 
         
 
              2.  That claimant sustained an injury on September 11, 1986, 
 
         which arose out of and in the course of employment with employer;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              3.  That the alleged injury is a cause of temporary 
 
         disability during a period of recovery; that the work injury is a 
 
         cause of permanent disability;
 
              
 
              4.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $201.77 per week;
 
              
 
              5.  All requested benefits have been or will be paid by 
 
         defendants under Iowa Code section 85.27 and/or medical 
 
         evaluation under section 85.39.
 
              
 
              6.  Defendants paid claimant 172.857 weeks of compensation 
 
         at the rate of $201.77 per week prior to hearing; and,
 
              
 
              7.  The parties stipulated to the costs.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 50 years old.  She commenced her employment with 
 
         defendant in September of 1978.  She had held several positions 
 
         in the plant.
 
         
 
              Claimant testified that on September 11, 1986, she was 
 
         picking up pallets and stacking them when she felt something snap 
 
         in her back.  She stated she began to cut a strap and could 
 
         hardly raise her body.  Claimant reported the matter to the 
 
         company nurse and claimant, in turn, drove herself to Mercy 
 
         Hospital.
 
         
 
              Subsequent to the date in question, claimant testified she 
 
         had two back surgeries.  One was on January 6, 1987; the other 
 
         was on January 12, 1988.  Claimant also testified that subsequent 
 
         to her injury, she attempted work in a light duty position.  She 
 
         claimed she could only work less than one hour before her back 
 
         hurt her.  Claimant also maintained her condition was worse and 
 
         she was unable to sit, stand, or travel for long periods of time.
 
         
 
              Medical records were admitted at the hearing.  Richard A. 
 
         Roski, M.D., a neurosurgeon, opined as of November 17, 1989:
 
         
 
              As you know, Calista Schmell is a patient that I first saw 
 
              in November of 1986.  She had injured herself in September 
 
              of that year while lifting a box palette [sic] at work and 
 
              developed pain in the low back and right leg.  She was 
 
              subsequently found to have a herniated lumbar disc at L4-5 
 
              and has undergone continuous treatment for that problem 
 
              ever since.  To date she has had two operative procedures 
 
              done at the L4-5 level.  The first was on 1-6-87 and the 
 
              second was done on 1-12-88.  Despite her surgery and 
 
              extensive physical therapy, she has continued to have 
 
              symptoms of pain in her low back and right leg.  She has 
 
              previously had a disability rating of 25% given by other 
 
              physicians.  This, I assume, is based on the AMA 
 
              Guidelines of Permanent Partial Impairment. As you well 
 
              know, this is an evaluation table based purely on 
 
              objective physical findings and, of course, does not have 
 
              anything to do with evaluating a patient's ability to 
 
              carry out work activity.  Her evaluations in physical 
 
              therapy have shown her to have markedly decreased strength 
 
              in both flexion and extension of her low back with very 
 
              poor flexibility.  To the best of my knowledge her 
 
              condition has not changed since the last evaluation which 
 
              I did on March 10, 1989 and I would consider as of that 
 
              time that her condition is permanent.  Her present 
 
              condition as it relates to work activity would place her 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              in a category where she would be unable to do the 
 
              following activities:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   1.  Repetitive bending and lifting.
 
                   2.  No lifting of any significant weight from the 
 
                   floor.
 
                   3.  No prolonged sitting.
 
                   4.  No riding in vehicles that have a great deal of 
 
                   bounce or poor shock absorbers.
 
                   5.  No working in awkward [sic] locations.
 
                   6.  No repetitive twisting.
 
         
 
              These are restrictions that I think would have a much 
 
              greater bearing on her work potential than was indicated by 
 
              a Permanent Impairment Rating.  The other thing not 
 
              addressed in the Permanent Impairment Rating is the type or 
 
              degree of pain.  Since no subcategories of pain are 
 
              described in the AMA Guidelines, her degree of pain might 
 
              indeed place her at a higher level of disability.  If I can 
 
              be of further help in this matter, please feel free to let 
 
              me know.
 
         
 
         (Claimant's Exhibit G, pages 12 & 13)
 
         
 
              Another evaluation was performed by Byron W. Rovine, M.D., a
 
         neurosurgeon.  He opined in relative portion:
 
         
 
              Mrs. Schmell is alert, rational and cooperative.  She is 64 
 
              inches tall and weighs 149 lbs. and her blood pressure was 
 
              160/100.  Examination of her head and neck, pupils, cranial 
 
              nerves and upper extremities demonstrated nothing abnormal. 
 
              In her lower extremities the Patellar reflexes were +2 and 
 
              symmetrical.  The left Achilles reflex was +/- with increase 
 
              to +1 on reinforcement.  The right was absent with increase 
 
              to trace on reinforcement.  There was some weakness of 
 
              dorsiflexion of the right great toe and very slight weakness 
 
              of dorsiflexion of the right foot.  I could detect no 
 
              weakness of any other muscle groups in either lower 
 
              extremity.  Sensory examination reveals mild hypalgesia and 
 
              hypesthesia in the L5 and S1 segments bilaterally.  Straight 
 
              leg raising was limited to about 75o bilaterally with low 
 
              back and buttock pain bilaterally.  In the prone position 
 
              there was bilateral iliospinal angle tenderness, incisional 
 
              tenderness over her 8 cm. surgical scar and right-sided 
 
              sciatic tenderness in the posterior thigh.  There was marked 
 
              pain on forcible hyperextension.  In the standing position 
 
              she exhibits moderate flattening of the lumbar curvature and 
 
              considerable restriction of back motion.  Maximum flexion 
 
              was measured at 35o, extension at 15o.  Left lateral bending 
 
              was maximal 15o and right 25o.  Rotations were approximately 
 
              20o to either side.  She was not able to stand on her heels 
 
              too well.  She could get the left foot up well, but the 
 
              right one would not stay up too easily.  Her gait was 
 
              somewhat protective of the right lower extremity.
 
         
 
              Based on the measured restriction of lower back motion, Mrs. 
 
              Schmell would be entitled to a partial disability rating of 
 
              15% of the person.  In view of the neurological deficit and 
 
              her continued severe symptomatology, I feel that at least 
 
              another 10% is reasonable and would calculate her partial 
 
              disability at the present time at 25%.  I have suggested to 
 
              Mrs. Schmell that she seek help at a major medical center 
 
              for the further evaluation of her condition and a 
 
              determination of whether any further treatment will be of 
 
              value.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Cl. Ex. H, p. 2)
 
         
 
              Later, Dr. Rovine wrote that as of August 12, 1988:
 
         
 
              What I meant was, that under her present circumstances 
 
              Mrs. Schmell evaluates to a 25% impairment of her total 
 
              person. If you will read the last portion of my report to 
 
              Mr. Goebel you will note that I did not use the word 
 
              "permanent."  I believe that if her condition remains 
 
              untreated, Mrs. Schmell's disability will be permanent.  I 
 
              believe, however, that it is amenable to treatment, hence 
 
              my suggestion that she seek help at a major medical 
 
              center.  I hope that this clears up your confusion.
 
         
 
         (Cl. Ex. H, p. 3)
 
         
 
              Subsequent to the rendering of the above opinion, Dr. Rovine 
 
         expressed the following in a written opinion dated November 1, 
 
         1988:
 
         
 
              I have been informed that a decision has been made to 
 
              consider Calista Schmell's disability due to her back 
 
              problem to be permanent.  I understand that this decision 
 
              has been stated to have been based on the report I sent to 
 
              you of my evaluation of Mrs. Schmell, dated July 27, 1988.  
 
              I wish to assure you that I neither stated, nor implied in 
 
              my evaluation, that it was my opinion that Mrs. Schmell's 
 
              disability is permanent.  At the time of the evaluation, I 
 
              suggested to Mrs. Schmell that she seek further evaluation 
 
              of her condition and a determination of whether any further 
 
              treatment will be of value.  Until such evaluation as I have 
 
              recommended has been carried out, the question of whether 
 
              Mrs. Schmell's present disability is permanent or 
 
              correctable must remain open.
 
         
 
         (Cl. Ex. H, p. 4)
 
         
 
              Medical records also indicate claimant was evaluated by 
 
         Bernard M. Seger, M.D., a specialist in arthroscopy and knee 
 
         surgery joint reconstruction.  He opined:
 
         
 
              Physical examination shows a well-oriented, healthy female 
 
              who appears to be her stated age.  She ambulates with a mild 
 
              antalgic gait complaining of right buttock pain.  Range of 
 
              motion of her low back is significantly limited.  Her pelvis 
 
              is labile.  Leg lengths appear to be equal.  Straight leg 
 
              raising is mildly positive bilaterally causing leg pain 
 
              medially on the right.  With the patient supine, she has a 
 
              mildly positive Patrick's test on the right causing her 
 
              right SI joint symptoms.  Neurologic examination with the 
 
              patient sitting shows brisk and equal deep tendon reflexes 
 
              of the knee and ankle on the left.  She has a slight 
 
              decreased ankle jerk on the right.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Flexion and extension x-ray films from 1988 were reviewed as 
 
              well as plain films taken today in my office.  She has had 
 
              some progressive joint space narrowing at L4/5.  She has 
 
              lost almost 100% of her joint space at this time.  MRI is 
 
              consistent with significant degeneration of the disk at this 
 
              level.
 
         
 
              IMPRESSION:  Is status post lumbar laminectomy X's 2 at 
 
              L4/5, the first in 1987, the second in 1988.
 
         
 
                          Chronic lumbar strain.
 
         
 
              COMMENT:  Because of her injury and subsequent surgery, I 
 
              feel that her permanent partial disability is 25%. 
 
              This is consistent with the  impairment determined 
 
              by Dr. Byron Rovine in Davenport, Iowa.
 
              
 
         (Cl. Ex. I, p. 2)
 
         
 
              Claimant was additionally examined on several occasions by 
 
         Paul E. Wakim, D.O., an orthopedic surgeon.  He opined:
 
         
 
              X-RAYS:
 
         
 
              The x-rays that were reported to us showed severe narrowing 
 
              of the L4-5 area.
 
         
 
              PHYSICAL EXAMINATION:
 
         
 
              Physical examination at the present time showed good heel 
 
              and toe walking functions of L5 and S1 respectively.  The 
 
              range of motion of the lumbar spine is severly [sic] 
 
              restricted to only about 55 to 60 degrees of flexion, 
 
              extension is degrees, side bending to the right and left is 
 
              35 degrees.
 
         
 
         (Cl. Ex. K, p. 3)
 
         
 
              Richard A. Roski, M.D., a neurosurgeon, also examined and 
 
         evaluated claimant.  As of November 11, 1987, Dr. Roski 
 
         determined:
 
         
 
              Calista was back in for follow up recently.  She continues 
 
              to have the same complaints that she has had in the past.  I 
 
              would agree that it appears that she has hit her level of 
 
              maximum medical benefit at this point.  Because of the 
 
              findings on the EMG, we'll continue to re-evaluate her 
 
              problem and I plan at the end of this month to get an MRI 
 
              scan of her lumbar spine.  At this point I would provide her 
 
              with a permanent disability rating of 10%.  I have enclosed 
 
              copies of her recent office visits and EMG and I will keep 
 
              you posted of any subsequent progress.
 
         
 
         (Defendants' Ex. C, p. 5)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                  APPLICABLE LAW
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
              
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
              Under the odd-lot doctrine, which was formally.adopted by 
 
         the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101 (Iowa 1985), a worker becomes an odd-lot employee when an 
 
         injury makes the worker incapable of obtaining employment in any 
 
         well-known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.  Id., citing 
 
         Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 
 
         N.W.2d 433, 436 (1950).  The rule of odd-lot allocates the burden 
 
         of production of evidence.  If the evidence of degree of obvious 
 
         physical impairment, coupled with other facts such as claimant's 
 
         mental capacity, education, training or age, places claimant 
 
         prima facie in the odd-lot category, the burden should be on the 
 
         employer to show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         noncompensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
              The commissioner did not in his analysis address any of the 
 
              other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  See 
 
              McSpadden, 288 N.W.2d 181, 192 (Iowa 1980).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                     ANALYSIS
 
         
 
              Claimant has satisfactorily demonstrated she is permanently 
 
         disabled.  Claimant has received functional impairment ratings of 
 
         10 to 25 percent.  Dr. Rovine has not necessarily agreed the 25 
 
         percent functional impairment rating is permanent.  He has opined 
 
         that with intense treatment from a world recognized clinic, such 
 
         as the Mayo Clinic, claimant may not have a permanent functional 
 
         impairment.  Claimant has not been offered the treatment 
 
         recommended by claimant.  Therefore, it stands to reason, even by 
 
         Dr. Rovine's standards, claimant is permanently impaired.
 
         
 
              Claimant asserts she is permanently and totally disabled, or 
 
         in the alternative, she is an odd-lot employee under Guyton.  The 
 
         undersigned is in agreement with claimant. she is permanently and 
 
         totally disabled under the rationale of Guyton.  Claimant is 
 
         willing but incapable of obtaining employment in any well known 
 
         branch of the labor market.
 
         
 
              There is no competitive employment for which claimant is 
 
         suited.  Claimant has been learning to make tamales in her home 
 
         for resale.  This, however, does not seem to be employment which 
 
         is actually competitive or even full time.
 
         
 
              Claimant is incapable of obtaining employment in any 
 
         well-known branch of the labor market.  Claimant is 50 years old.  
 
         Her age is working against her employment opportunities.  
 
         Claimant only completed the ninth grade.  She has no high school 
 
         diploma. Nor does she even have a GED.  Claimant's former 
 
         positions have involved performing lifting, bending or twisting.  
 
         Other positions claimant has held involve waitressing and 
 
         housekeeping.  These are physically demanding jobs.  They also 
 
         require lifting, bending and twisting.  According to Karen Dahens 
 
         OTR/L at the Franciscan Work Fitness Center, claimant is 
 
         restricted from the above.
 
         
 
              Claimant has searched for work in Texas, her present 
 
         residence.  She has only been able to engage in the 
 
         non-competitive cottage industry type jobs.  She has requested 
 
         vocational rehabilitation.  She has been refused the same. 
 
         Defendants have been unable to produce any well known branch of 
 
         the labor market for which claimant is capable of obtaining 
 
         employment.
 
         
 
              It is the opinion of the undersigned that claimant is 
 
         totally disabled under Guyton, supra.  The only services claimant 
 
         can perform are so limited in quality, dependability, or quantity 
 
         that a reasonable stable labor market for her is nonexistent.
 
         
 
              Also in dispute is claimant's entitlement to healing period 
 
         benefits.  Section 85.34(1) of the Iowa Code defines healing 
 
         period as follows:
 
         
 
                   1.  Healing period.  If an employee has suffered a 
 
              personal injury causing permanent partial disability for 
 
              which compensation is payable as provided in subsection 2 of 
 
              this section, the employer shall pay to the employee 
 
              compensation for a healing period, as provided in section 
 
              85.37, beginning on the date of injury, and until the 
 
              employee has returned to work or it is medically indicated 
 
              that significant improvement from the injury is not 
 
              anticipated or until the employee is medically capable of 
 
              returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the time of 
 
              injury, whichever occurs first.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Because this case involves permanent total disability 
 
         benefits, the undersigned does not need to address the issue of 
 
         healing period benefits.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              Finding 1.  As a result of her work injury on September 11, 
 
         1986, claimant has functional impairment ratings of up to 25 
 
         percent.
 
         
 
              Finding 2.  Claimant is 50 years old and she completed only 
 
         the ninth grade.
 
         
 
              Finding 3.  Claimant has spent most of her working career in 
 
         labor positions, or else waitressing and performing housekeeping.
 
         
 
              Finding 4.  Claimant is currently training to make and sell 
 
         tamales in her home.
 
         
 
              Conclusion A.  As a result of her injury on September 11, 
 
         1986, claimant is unable to obtain full time employment in the 
 
         competitive labor market, and as a consequence, claimant is an 
 
         odd-lot employee.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant weekly 
 
         benefits for the duration of claimant's period of permanent total 
 
         disability with said benefits commencing on September 11, 1986 
 
         and running continuously at the stipulated rate of two hundred 
 
         one and 77/100 dollars ($201.77) per week.
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report.
 
         
 
         
 
              Signed and filed this 11th day of May, 1990.
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. George A. Goebel
 
         Attorney at Law
 
         102 Professional Arts Bldg.
 
         121 West Locust St,
 
         Davenport, IA  52803
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Executive Square, Suite 102
 
         400 Main St
 
         Davenport, IA  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            4100
 
                                            Filed May 11, 1990
 
                                            MICHELLE A McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CALISTA E. SCHMELL,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 832843
 
         BRAMMER MANUFACTURING,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         4100
 
         
 
              Claimant sustained an injury to her back.  She had two 
 
         subsequent surgeries.  She was 50 years old at the time of the 
 
         hearing.  Claimant dropped out of high school after the ninth 
 
         grade.  Claimant had worked as a laborer, a waitress and a 
 
         housekeeper.  At the time of the hearing, claimant was learning 
 
         to make tamales in her home for resale to restaurants.  This was 
 
         only part-time work.  Claimant had no transferable skills.  
 
         Claimant was an odd-lot employee under Guyton.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARRY STONER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  832932
 
            MIDWEST MANUFACTURING,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Garry 
 
            Stoner as a result of injuries to his back which occurred on 
 
            September 6, 1986.  Defendants admitted compensability for 
 
            the injury, paid weekly benefits and paid medical expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on June 26, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1, 2 and 4 through 10; 
 
            defendants' exhibits A, B, C, and D; and the testimony from 
 
            claimant, Bill King and Janice Rumbley.
 
            
 
                                      issues
 
            
 
                 The sole issue for determination is the extent of 
 
            entitlement to permanent disability benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Garry Stoner, has worked for employer since 
 
            May of 1977.  On September 6, 1986, he was performing 
 
            factory production work for employer as a hob operator when 
 
            he bent down to pick up a scrap pan and injured his back.  
 
            Claimant was diagnosed as having a herniated disc and was 
 
            treated conservatively with medication, rest and physical 
 
            therapy.  After an intermittent healing period, claimant 
 
            returned to work for employer at an easier job which also 
 
            paid slightly less than the position he occupied on 
 
            September 6, 1986.
 
            
 
                 The treating doctor imposed work guidelines of no 
 
            repetitive nor prolonged reaching activity, and no bending 
 
            at the waist.  His weight guidelines are 20 pounds or up to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            40 pounds if at bench height and close to the waist.  The 
 
            treating doctor rated claimant's impairment at 5 percent to 
 
            the body as a whole as a result of the September 6, 1986, 
 
            injury.  
 
            
 
                 Jerome G. Bashara, M.D., examined claimant on July 13, 
 
            1990, as an independent medical examination made at 
 
            claimant's request.  Dr. Bashara found 5 percent permanent 
 
            partial impairment and imposed permanent work restrictions 
 
            of limited bending, stooping or twisting.
 
            
 
                 At the time of hearing, claimant is still employed with 
 
            employer.  He testified that he still experiences occasional 
 
            pain into his low back and legs.  Claimant stated that he 
 
            bid for a higher paying job with employer, but it was denied 
 
            due to his work restrictions according to the explanation he 
 
            received from a union representative.  Claimant also stated 
 
            that due to his back injury he cannot physically perform 
 
            most of the jobs at employers factory.
 
            
 
                 Bill King testified that he is the human resources 
 
            manager for employer.  He was of the opinion that claimant 
 
            may be able to perform jobs with higher pay with appropriate 
 
            modification.  He also stated that many of the machines in 
 
            the factory have recently been automated, thereby, lessening 
 
            the physical requirements of operation.  However, King did 
 
            not state that such other jobs were offered to claimant or 
 
            that such was suggested as an option for claimant to bid 
 
            into.
 
            
 
                 Janice Rumbley testified that she is a rehabilitation 
 
            consultant retained by employer.  She testified that her 
 
            coworker assisted claimant with reemployment with employer 
 
            in February 1987.  Rumbley testified that the work 
 
            restrictions set by the doctors were ambiguous.
 
            
 
                 The issue to be resolved concerns the extent of 
 
            claimant's industrial disability.  Factors to be considered 
 
            include, but are not limited to, claimant's age, education, 
 
            experience, impairment, work restrictions, motivation and 
 
            employer's offer of work.
 
            
 
                 Claimant, at the time of injury, was age 27 with a 
 
            twelfth grade education and no formal education beyond high 
 
            school.  His experience consists primarily of factory 
 
            production work which is best described as medium to heavy 
 
            manual labor.  Permanent partial impairment resulting from 
 
            the September 6, 1986, herniated disc is 5 percent to the 
 
            body as a whole.  Work guidelines are 20 to 40 pounds 
 
            lifting and no repetitive bending.  It is found that it is 
 
            unlikely that claimant is able to perform work more 
 
            strenuous than what he is presently doing based upon his 
 
            continuing complaints of pain.  Testimony that claimant is 
 
            able to perform more strenuous work was speculative in the 
 
            absence of expert medical opinion supporting the 
 
            contentions.  Claimant's motivation to work is good as 
 
            demonstrated by his willingness to work through the pain and 
 
            his low absenteeism.  Employer also made a good faith effort 
 
            to reemploy subsequent to claimant's discharge from medical 
 
            care.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Having considered all the evidence and the material 
 
            factors, it is found that claimant sustained 12 percent 
 
            industrial disability as a result of the September 6, 1986, 
 
            low back injury.  Claimant has proven that he sustained a 
 
            loss of actual earnings and a loss of access to available 
 
            jobs due to the low back injury.  It is also apparent that 
 
            as a result of the injury, he will be less competitive in 
 
            the open job market when competing against younger and 
 
            healthier workers.  On the other hand, employer's good faith 
 
            offer of work strongly mitigates against a higher assessment 
 
            of industrial disability.
 
            
 
                                conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 12 
 
            percent permanent partial disability which entitles claimant 
 
            to recover 60 weeks of benefits under Iowa Code section 
 
            85.34(2)(u).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant sixty (60) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred seventy and 68/100 dollars ($270.68) per week 
 
            commencing February 2, 1987.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Arthur Hedberg
 
            Attorney at Law
 
            840 5th Ave
 
            Des Moines, Iowa  50309-1398
 
            
 
            Mr. Harry W. Dahl, Jr.
 
            Attorney at Law
 
            974 - 73rd St. STE 16
 
            Des Moines, Iowa  50312
 

 
            
 
            Page   5