Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            THOMAS E. LAME,                :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 833778
 
            JACK DELEON CONSTRUCTION,      :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            UNITED FIRE & CASUALTY COMPANY,:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Thomas E. Lame, against his employer, Jack 
 
            Deleon Construction, and his insurance carrier, United Fire 
 
            & Casualty, defendants.  The case was heard on July 17, 
 
            1990, in Des Moines, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant, the testimony of Jack J. Deleon, Senior, and the 
 
            testimony of Marcia Lame, spouse of claimant.  Additionally, 
 
            the record consists of joint exhibits B-O.
 
            
 
                                      issues
 
            
 
                 The sole issue to be determined is:  1) the nature and 
 
            extent of claimant's permanent partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 On September 15, 1986, claimant, an employee of 
 
            defendant-employer, was working on a room addition in West 
 
            Des Moines.  He was engaged in pouring footings.  Claimant 
 
            was pushing a wheelbarrow down a muddy slope when he fell 
 
            forward and jammed his left shoulder into the wheelbarrow.  
 
            He was taken to Mercy Hospital for medical treatment where 
 
            he was examined by Marvin Dubansky, M.D.  Initially, Dr. 
 
            Dubansky diagnosed claimant as having a posterior 
 
            dislocation of the left shoulder.  As a result, Dr. Dubansky 
 
            treated claimant for a two year period.  During the two year 
 
            period, Dr. Dubansky referred claimant to Randy Winston, 
 
            M.D.  Dr. Winston provided a second opinion relative to a 
 
            nerve injury to claimant's left shoulder and arm.  As of 
 
            October of 1988, Dr. Dubansky had modified claimant's 
 
            diagnosis to a partial brachial plexus palsy.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Dubansky released claimant to light duty work in 
 
            January of 1987.  Claimant returned to work with 
 
            defendant-employer.  The company was owned by claimant's 
 
            father-in-law.  He made special accommodations for claimant 
 
            and claimant continued in his employment until June 1989.  
 
            Then claimant and his wife moved to Las Vegas, Nevada where 
 
            they accepted employment as apartment managers.  At the time 
 
            of the hearing, claimant and his wife jointly earned $1,800 
 
            in salary and received a $600 per month apartment as a 
 
            portion of their wages.
 
            
 
                                conclusions of law
 
            
 
                 This agency has jurisdiction of the subject matter of 
 
            this proceeding and its parties.
 
            
 
                 The sole issue to address is the nature and extent of 
 
            claimant's permanent disability.  Claimant alleges he is 
 
            industrially disabled and that he has had a loss of earning 
 
            capacity.
 
            
 
                 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, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 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, 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.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 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 
 
            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).
 
            
 
                 In the case before the undersigned, Dr. Dubansky opined 
 
            claimant was functionally impaired.  He rated claimant on 
 
            three separate occasions.  In May of 1987, Dr. Dubansky 
 
            rated claimant as having a 25 percent impairment of the left 
 
            upper extremity.  Later, the same physician rated claimant 
 
            as having an 18 percent impairment of the left upper 
 
            extremity.  In October of 1988, Dr. Dubansky assessed a 45 
 
            percent functional impairment rating to the left upper 
 
            extremity (27 percent body as a whole).  The latter rating 
 
            was based on the involvement of the branchial plexus in 
 
            claimant's left shoulder.
 
            
 
                 Tom Bower, L.P.T., also evaluated claimant for a 
 
            functional impairment.  He rated claimant as having a 13 
 
            percent impairment to claimant's left upper extremity and a 
 
            4 percent impairment to the upper trunk due to the injury to 
 
            the branchial plexus.  Mr. Bower opined there was a combined 
 
            impairment rating of 17 percent to the upper extremity or 10 
 
            percent to the body as a whole.
 
            
 
                 Dr. Dubansky and Mr. Bower used different tables of the 
 
            AMA Guidelines, in order to reach their respective ratings.  
 
            It is the determination of the undersigned that claimant is 
 
            functionally impaired in an amount from 10 percent to 27 
 
            percent.  However, the precise amount is not crucial to this 
 
            case since a functional impairment rating is only one factor 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            in evaluating industrial disability.  The parties must look 
 
            to see whether there has been a loss of earning capacity.
 
            
 
                 Claimant's treating physician released claimant to 
 
            light duty work in January of 1987.  Claimant, with the help 
 
            and understanding of his employer, was able to return to his 
 
            former position and to successfully maintain his position 
 
            for over two years.  Defendant-employer made special 
 
            accommodations for claimant and claimant was able to 
 
            satisfactorily perform his job duties.  Jack Deleon, Sr., 
 
            president of the company, hoped to move claimant into a 
 
            management position in order to ease the physical workload 
 
            for claimant.  There was no threat of termination.  Claimant 
 
            performed adequately.
 
            
 
                 At the time of his injury, claimant worked 40-45 hours 
 
            per week at $7.00 per hour.  When claimant returned to work 
 
            for defendant-employer, he was paid the same rate of pay and 
 
            worked the same hours.  Claimant's job appeared secure.
 
            
 
                 Claimant, however, voluntarily terminated his position 
 
            with defendant-employer.  No physician advised claimant to 
 
            quit.  Claimant's decision was motivated by his 12 year 
 
            dream to live in Las Vegas near his sister.  The decision to 
 
            relocate and to become an apartment manager was not the 
 
            result of claimant's work injury on September 15, 1986.  
 
            Claimant's current position pays wages comparable to the 
 
            ones he earned from defendant-employer.
 
            
 
                 After reviewing the evidence and considering the 
 
            principles of law previously cited, it is the determination 
 
            of the undersigned that claimant has a permanent partial 
 
            disability of 15 percent.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay seventy-five (75) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred eight-five and 70/l00 dollars ($185.70) per week 
 
            commencing on January 19, 1987.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Interest shall be paid pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Ronald R. Ricker
 
            Attorney at Law
 
            620 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. Philip H. Dorff, Jr.
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                        1803
 
                        Filed March 15, 1991
 
                        MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                        :
 
         THOMAS E. LAME,                :
 
                                        :
 
              Claimant,                 :
 
                                        :
 
         vs.                            :
 
                                        :         File No. 833778
 
         JACK DELEON CONSTRUCTION,      :
 
                                        :      A R B I T R A T I O N
 
              Employer,                 :
 
                                        :         D E C I S I O N
 
         and                            :
 
                                        :
 
         UNITED FIRE & CASUALTY COMPANY,:
 
                                        :
 
              Insurance Carrier,        :
 
              Defendants.               :
 
         ___________________________________________________________
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant was functionally impaired in an amount from 10 
 
         percent to 27 percent.  Claimant's treating physician released 
 
         claimant to light duty work in January of 1987.  Claimant, with 
 
         the help and understanding of his employer, was able to return to 
 
         his former position and to successfully maintain his position for 
 
         over two years.  Defendant-employer made special accommodations 
 
         for claimant and claimant was able to satisfactorily perform his 
 
         job duties.  Jack Deleon, Sr., president of the company, hoped to 
 
         move claimant into a management position in order to ease the 
 
         physical workload for claimant.  There was no threat of termina
 
         tion.  Claimant performed adequately.
 
         
 
              At the time of his injury, claimant worked 40-45 hours per 
 
         week at $7.00 per hour.  When claimant returned to work for 
 
         defendant-employer, he was paid the same rate of pay and worked 
 
         the same hours.  Claimant's job appeared secure.
 
         
 
              Claimant, however, voluntarily terminated his position with 
 
         defendant-employer.  No physician advised claimant to quit.  
 
         Claimant's decision was motivated by his 12 year dream to live in 
 
         Las Vegas near his sister.  The decision to relocate and to 
 
         become an apartment manager was not the result of claimant's work 
 
         injury on September 15, 1986.  Claimant's current position pays 
 
         wages comparable to the ones he earned from defendant-employer.
 
         Held:  Claimant sustained a 15 percent permanent partial 
 
         disability.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARTIN KOLLASCH,                            File No. 833797
 
         
 
              Claimant,                           A R B I T R A T I O N
 
         
 
         vs.                                         D E C I S I O N
 
         
 
         KOLLASCH LAND AND LIVESTOCK,                   F I L E D
 
         INC.,
 
                                                       MAY 31 1989
 
               Employer,
 
               Defendant.                          INDUSTRIAL SERVICES
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Martin 
 
         Kollasch against Kollasch Land and Livestock, Inc., his uninsured 
 
         former employer.
 
         
 
              The case was heard at Storm Lake, Iowa, on May 24, 1989.  
 
         The record in the proceeding consists of testimony from Martin 
 
         Kollasch and claimant's exhibit 1.
 
         
 
                                    ISSUES
 
         
 
              Claimant seeks compensation for healing period, permanent 
 
         partial disability and section 85.27 benefits.  During the course 
 
         of the hearing, the parties stipulated that claimant was entitled 
 
         to receive four weeks of compensation payable commencing with the 
 
         date of injury at the stipulated rate of $142.95 per week and 
 
         that claimant was also entitled to receive six and one-half weeks 
 
         representing permanent partial disability compensation.
 
         
 
                             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.  The 
 
         only evidence received at hearing was claimant's testimony.  
 
         Claimant was struck on the left side of the face by the end of a 
 
         railroad tie which was flipped toward him by a tractor operated 
 
         by his uncle, Charlie Kollasch, one of the owners of the 
 
         defendant corporation.
 
         
 
              Claimant was taken to a local hospital and then referred to 
 
         the Mayo Clinic where he underwent open reduction and wire 
 
         fixation of a tripod fracture involving the left zygoma (the 
 
         prominent bone located below the eye and above the left cheek) 
 
         (exhibit 1, page 7).  Two incisions were made, one beneath the 
 
                                                
 
                                                         
 
         lower eyelid and the other above the eyebrow.  Claimant testified 
 
         that he had residual symptoms of recurrent severe headaches which 
 
         caused him to cease activity and an area of numbness on his face 
 
         commencing at the top of the nose, running to the top of the lip, 
 
         running laterally to the left corner of his mouth, running upward 
 
         toward the bottom eyelid and then running back to the top of his 
 
         nose.  H. Bryan Neel, III, M.D., a specialist in 
 
         otorhinolaryngology at the Mayo Clinic in Rochester, Minnesota, 
 
         explained that the loss of sensation and numbness resulted from 
 
         damage to a nerve which frequently occurs with the type of 
 
         fracture that claimant had sustained and that the numbness would 
 
         likely be permanent (exhibit 1, pages 10-14).  Dr. Neel indicated 
 
         that claimant had no disability in the legal sense, but that 
 
         claimant did need to exercise caution to guard against frostbite 
 
         when working outdoors in cold weather.  Dr. Neel felt that 
 
         claimant had obtained a superb recovery from the injury (exhibit 
 
         1, pages 15-18).
 
         
 
              Claimant also testified that he has a fear of performing 
 
         work as a farmhand, as he had done for this employer, as a result 
 
         of the injury.  He has not, however, sought treatment for any 
 
         emotional problem.
 
         
 
              Claimant's medical bills were not received into evidence by 
 
         virtue of the provisions of paragraph 6 of the hearing assignment 
 
         order.  The bills were served on defense counsel on May 15, 1989, 
 
         nine days prior to the date of hearing (instead of the required 
 
         fifteen days) and had not been previously served.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              It was stipulated that claimant sustained an injury which 
 
         arose out of and in the course of his employment with Kollasch 
 
         Land and Livestock, Inc.  The stipulation is supported by 
 
         claimant's testimony.
 
         
 
              Claimant is entitled to healing period compensation 
 
         commencing on the date of injury and running until the employee 
 
         has returned to work, until the employee has reached the point of 
 
         recovery that further significant improvement from the injury is 
 
         not anticipated, or until the employee is medically capable of 
 
         returning to employment substantially similar to that in which he 
 
         was engaged at the time of injury, whichever occurs first.  Iowa 
 
         Code section 85.34.  Claimant's return to full-time employment 
 
         managing the movie theater effectively terminates his 
 
         compensation for healing period.  The parties stipulated that 
 
         this span of time was four weeks.  The evidence introduced did 
 
         not show a precise date for claimant's resumption of employment, 
 
         but the stipulation is consistent with the testimony from 
 
         claimant and is accepted as being correct.
 
         
 
              An issue existed with regard to whether any permanent 
 
         partial disability should be compensated industrially or as a 
 
         scheduled permanent disfigurement under Code section 85.34(2)(t).  
 
         Claimant exhibited a small scar above his left eyebrow.  The scar 
 
                                                
 
                                                         
 
         below the left eye was not discernable through normal 
 
         observation.  There is no notable disfigurement.  Claimant's 
 
         primary residual complaints were numbness and headaches which 
 
         interfere with activity and a fear of farm-type work.  Claimant's 
 
         testimony regarding the fear, headaches and numbness is accepted 
 
         as being correct.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              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).
 
         
 
              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.
 
         
 
              Claimant has remained gainfully employed since returning to 
 
         work following the injury and now earns approximately twice what 
 
         he was earning at the time of the injury.  Claimant's industrial 
 
         disability is minimal.  The amount stipulated by the parties is 
 
         equivalent to a 1.3 percent permanent partial disability under 
 
         Code section 85.34(2)(u).  The stipulation made by the parties 
 
         regarding permanent partial disability is accepted as being 
 
         correct.
 
         
 
              Claimant seeks to recover section 85.27 benefits.  Since the 
 
         amount of the bills was not received into evidence, it is not 
 
         possible to award a recovery for those expenses, despite the fact 
 
         that one would normally expect the providers of medical care to 
 
         charge for the services which they provide.  Claimant's claim for 
 
                                                
 
                                                         
 
         section 85.27 benefits must therefore be denied.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Martin Kollasch was a resident of the state of Iowa 
 
         employed by Kollasch Land and Livestock, Inc., in the state of 
 
         Iowa when he was struck by a railroad tie causing a fracture on 
 
         the left side of his face.
 
         
 
              2.  Claimant was performing the duties of his employment at 
 
         the time the incident occurred.
 
         
 
              3.  Claimant has no notable residual facial disfigurement as 
 
         a result of the injury and corrective surgery employed in its 
 
         treatment.
 
         
 
              4.  Claimant is afflicted with severe headaches, an area of 
 
         numbness affecting the left side of his face and apprehension 
 
         about working with farm equipment or livestock.
 
         
 
              5.  Claimant was disabled following the injury for a period 
 
         of four weeks until he returned to gainful employment.
 
         
 
              6.  Claimant has a 1.3 percent permanent impairment of his 
 
         earning capacity as a result of the symptoms which have remained 
 
 
 
                               
 
                                                         
 
         following recovery from the injury.
 
         
 
                                  CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant is entitled to recover four weeks of 
 
         compensation for healing period disability at the stipulated rate 
 
         of $142.95 per week payable commencing June 7, 1986 under the 
 
         provisions of Code section 85.34(1).
 
         
 
              3.  Claimant is entitled to recover 6.5 weeks of 
 
         compensation for permanent partial disability representing a 1.3 
 
         percent permanent partial disability under the provisions of Code 
 
         section 85.34(2)(u).
 
         
 
              4.  Claimant failed to introduce sufficient evidence to 
 
         establish the amount of any medical expenses which he is entitled 
 
         to recover under the provisions of Code section 85.27.
 
         
 
                                  ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant four (4) 
 
         weeks of compensation for healing period at the stipulated rate 
 
         of one hundred forty-two and 95/100 dollars ($142.95) per week 
 
         payable commencing June 7, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendant pay claimant six point 
 
         five (6.5) weeks of compensation for permanent partial disability 
 
         at the stipulated rate of one hundred forty-two and 95/100 
 
         dollars ($142.95) per week payable commencing July 4, 1986.
 
         
 
              IT IS FURTHER ORDERED that claimant's claim for section 
 
         85.27 benefits is denied.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendant file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 31st day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
                                                
 
                                                         
 
         Copies To:
 
         
 
         Mr. Eldon J. Winkel
 
         Attorney at Law
 
         111 North Hall Street
 
         P.O. Box 503
 
         Algona, Iowa  50511
 
         
 
         Mr. Neven J. Mulholland
 
         Attorney at Law
 
         600 Boston Centre
 
         P.O. Box 1396
 
         Fort Dodge, Iowa  50501
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803.1, 2601.20, 2903
 
                                            3700
 
                                            Filed May 31, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARTIN KOLLASCH,
 
         
 
              Claimant,                                 File No. 833797
 
         
 
         vs.                                         A R B I T R A T I 0 N
 
         
 
         KOLLASCH LAND AND LIVESTOCK,                   D E C I S I 0 N
 
         INC.,
 
          
 
              Employer,
 
              Defendant.
 
         
 
         
 
         1803.1
 
         
 
              Claimant, who suffered trauma to the left side of his face 
 
         was left with residual numbness and severe headaches, but no 
 
         appreciable disfigurement.  The disability was compensated 
 
         industrially.
 
         
 
         2601.20, 2903, 3700
 
         
 
              Where claimant failed to introduce evidence to establish the 
 
         amount of his medical expenses, his claim for section 85.27 
 
         benefits was denied.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KELY D. LAWLER,
 
         
 
              Claimant,
 
                                                    File No. 833831
 
         vs.
 
                                                 A R B I T R A T I 0  N
 
         FORT DODGE ASPHALT,
 
                                                    D E C I S I 0 N
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        NOV 7 1989
 
         GENERAL CASUALTY COMPANIES,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Kely D. 
 
         Lawler, claimant, against Fort Dodge Asphalt, employer, and 
 
         General Casualty Companies, insurance carrier, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         September 10, 1986.  On May 12, 1989, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On September 10, 1986, claimant received an injury which 
 
         arose out of and in the course of her employment;
 
         
 
              2.  Claimant's entitlement to healing period benefits 
 
         extends from September 11, 1986 through November 4, 1987;
 
         
 
              3.  Claimant's rate of weekly compensation shall be $153.30 
 
         per week;
 
         
 
              4.  All requested medical benefits have been or will be paid 
 
         by defendants; and,
 
         
 
              5.  Prior to hearing, defendants paid claimant 82 weeks of 
 
         disability benefits at the rate of $153.30 per week.
 
                                                
 
                                                         
 
         
 
                                  ISSUE
 
         
 
              The only issue submitted by the parties is the extent of 
 
         claimant's entitlement to weekly benefits for permanent 
 
         disability.
 
         
 
                            STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant was 27 years of age at the time of hearing. 
 
         Claimant was a flag person for a road construction firm at the 
 
         time of injury.  On November 10, 1986, claimant twisted her left 
 
         knee after a flag pole she was holding was struck by a passing 
 
         motorist.  Since that time claimant has complained of chronic 
 
         pain with catching and "giving out" of her left knee. 
 
         Arthroscopic surgery on claimant's left knee was performed 
 
         relatively soon after the injury by C. J. Crosby, D.O.  Dr. 
 
         Crosby referred to the procedure as a partial synovectomy.  
 
         After claimant failed to recover fully from this treatment, she 
 
         was eventually referred to John Grant, M.D., another orthopedic 
 
         surgeon, who performed a second arthroscopic surgery in which he 
 
         shaved what the doctor refers to as "post traumatic roughening 
 
         of the medial condyle" and also performed what the doctor calls 
 
         another partial synovectomy.
 
         
 
              Claimant testified that she continues to have knee problems 
 
         today.  These problems consist of chronic pain and the knee 
 
         "giving out" on a periodic bases.  Claimant complains that she 
 
         can no longer work as a flag person or as a nurse's aide because 
 
         of this knee problem.  Claimant has worked as a nurse's aide for 
 
         three years in prior employment.  Claimant's last attending 
 
         physician, Dr. Grant, opines that after reaching maximum healing, 
 
         claimant suffers from a 10 percent permanent partial impairment 
 
         to the leg due to her chronic knee problems and "chondromalacia 
 
         of the patella."
 
         
 
              Claimant also complained of back pain at the time of injury 
 
         and at the time of hearing.  Claimant, however, testified that 
 
         she is functionally incapacitated only with reference to her knee 
 
         condition.  Claimant stated that at least one medical 
 
         practitioner has stated to her that she has "pelvic tilt" due to 
 
         one leg being longer than the other.  She also testified that Dr. 
 
         Grant does not agree with this diagnoses.  No physician report 
 
         was submitted into the evidence with reference to back problems, 
 
         pelvic tilt or other chronic difficulties giving rise to 
 
         functional impairment due to back problems.
 
         
 
                                                
 
                                                         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant first argues in a brief that the knee injury is an 
 
         injury to the body as a whole and therefore her disability should 
 
         be measured industrially as a loss of earning capacity rather 
 
         than as a scheduled member disability or loss of function.  It 
 
         has long been the law of this state that compensation for knee 
 
         injuries is limited to a percentage of the maximum weekly 
 
         benefits for an injury under the schedules contained in Iowa Code 
 
         section 85.34. Wichers v. McKee Co., 223 Iowa 853, 273 N.W. 892 
 
         (1937).
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  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, 997 (Iowa 1983). 
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              From the evidence submitted, the rating of Dr. Grant is 
 
         uncontroverted.  He also used a rating standard published by the 
 
         American Medical Association in providing the rating.  Therefore, 
 
         it is found as a matter of fact that the work injury is a cause 
 
         of a 10 percent loss of use of the leg.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 22 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(o) which is 10 percent of 220 weeks, the maximum 
 
         allowable number of weeks for an injury to the leg in that 
 
         subsection.
 
         
 
              Claimant stipulated that she is only entitled to 60 weeks of 
 
         healing period benefits and that she has been paid 82 weeks of 
 
         weekly disability benefits prior to hearing.  Therefore, claimant 
 
         is entitled to nothing further from defendants.
 
         
 
              Costs will be assessed against claimant as there was little 
 
         evidence offered into the record to support her contentions.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  The work injury of September 10, 1986, is a cause of a 
 
                                                
 
                                                         
 
         10 percent permanent partial impairment to the leg and of 
 
         permanent, limitations upon claimant's physical activity 
 
         consisting of limited ability to lift, walk, stand or stoop.  
 
         Claimant continues to experienced chronic pain in the left knee.  
 
         Claimant has chondromalacia of the patella.
 
         
 
              2.  Claimant had no ascertainable functional impairments 
 
         prior to the work injury herein.
 
         
 
              3.  Claimant failed to show that the injury extended beyond 
 
         the leg.
 
         
 
                              CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to 82 weeks of 
 
         healing period and permanent partial disability benefits.  
 
         Claimant has been paid this entitlement.
 
         
 
                                  ORDER
 
         
 
              1.  Claimant shall take nothing from defendants in this 
 
         proceeding.
 
         
 
              2.  Claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
 
 
              
 
                                                         
 
         
 
         
 
              Signed and filed this 7th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. M. Gene Blackburn
 
         Attorney at Law
 
         142 N. 9th St.
 
         P 0 Box 817
 
         Fort Dodge, IA  50501
 
         
 
         Mr. Robert C. Landess
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, IA  50312
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed November 7, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KELY D. LAWLER,
 
         
 
              Claimant,
 
                                                     File No. 833831
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         FORT DODGE ASPHALT,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         GENERAL CASUALTY COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803 - Nonprecedential - extent of permanent partial disability 
 
         benefits.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        THOMAS B. CROWLEY,
 
        
 
             Claimant,
 
             
 
        vs.                                                File No. 
 
        833837
 
        
 
        LOUIS RICH COMPANY,                                A R B I T R A 
 
        T I O N
 
        
 
            Employer,                                     D E C I 5 I O 
 
        N
 
        
 
        and                          .                    F I L E D
 
        
 
        LIBERTY MUTUAL INSURANCE                       FEB 20 1989
 
        COMPANY,
 
            Insurance Carrier,              IOWA INDUSTRIAL 
 
        COMMISSIONER
 
            Defendants.
 
                                                
 
                                                
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Thomas B. 
 
             Crowley, claimant, against Louis Rich Company, employer, and 
 
             Liberty Mutual Insurance Company, insurance carrier, defendants. 
 
             The case was heard by the undersigned in Davenport, Iowa on 
 
             February 7, 1989.
 
        
 
            The record consists of the testimony of claimant and the 
 
        testimony of his brother, John Crowley. The record also consists 
 
        of joint exhibits A through F.
 
        
 
                                 ISSUES PRESENTED
 
        
 
             Pursuant to the prehearing report submitted and approved, 
 
             the issues presented are:
 
        
 
            l) Whether claimant is entitled to permanent partial 
 
        disability benefits to the leg;
 
        
 
            2) What date, if any, is the commencement date for the 
 
        awarding of weekly benefits; and,
 
        
 
            3) Which party is responsible for the taxation of costs.
 
        
 
                                 FACTS PRESENTED
 
        
 
             The parties stipulated claimant was injured on September 8, 
 
             1986, and that the injury arose out of and in the course of 
 
             claimant's employment. According to claimant's testimony, his 
 
             right leg was caught between two crates. Men operating forklift 
 
             trucks kept pushing on the crates. Finally, the men stopped 
 
             pushing with the truck. The men then assisted claimant with 
 
             removing the crates from his ankle.
 

 
        
 
 
 
 
 
        
 
             After the injury, claimant was taken to the company nurse 
 
             where his foot and ankle were wrapped. Claimant was later seen 
 
             by Dr. Palmer.
 
        
 
            Approximately two and one half weeks after the work injury, 
 
        claimant was seen by Earl Y. Bickel, M.D. Dr. Bickel diagnosed 
 
        claimant as having a sprained foot. Dr. Bickel placed a cast on 
 
        claimant's foot. The cast was removed on October 14, 1986.
 
        
 
            Claimant returned to work on a light duty assignment. Later 
 
        claimant testified he was placed back on the assembly line. He 
 
        testified he could not continue working as his foot pained him 
 
        and it continued to swell. Because of the pain and the swelling, 
 
        claimant stated he terminated his employment on January 14, 1987.
 
        
 
                                 APPLICABLE LAW
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            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 satisfactorily demonstrated by a preponderance 
 
             of the evidence that he has sustained a permanent partial 
 
             disability. The parties stipulated that any permanent disability 
 
             was a scheduled member disability to the leg. Both physicians 
 
             involved in this case gave permanency ratings of five percent.
 
        
 
             Dr. Bickel, in his letter of December 28, 1987, writes to 
 
             claimant's then attorney:
 
        
 
             ...Occasionally he has referral of the pain up the anterior 
 
             aspect of the leg as far as the knee with tenderness and 
 
             pain over the great toe and over the plantar surface of the 
 
             foot.
 
        
 
             Examination demonstrates that there are callosities over the 
 
             dorsal aspect of the great toe and over the sesamoid area of 
 
             the toe. He has mild tenderness along the plantar arch and 
 
             some tenderness over the peroneal muscles.
 
             
 
             I feel that he has sustained some permanent partial 
 
             disability to his foot as a result of the crush injury to 
 
             the soft tissue.
 
             
 
             Although the x-rays were negative, he did have a soft tissue 
 
             injury, which affects him on periods of standing, walking 
 
             and rough ground. I feel that he has sustained permanent 
 

 
        
 
 
 
 
 
             partial impairment to the lower extremity equivalent to 5%.
 
             
 
             Claimant's evaluating physician, J. E. Crouse, M.D., agrees 
 
             with the evaluation provided by Dr. Bickel. Dr. Crouse relates 
 
             the following in his progress notes:
 
        
 
             4-21-88------------THOMAS CROWLEY-----------On exam his foot 
 
             really appears normal except for some callous formation over 
 
             the proximal phalanx of the great toes. There seems to be 
 
             some slight swelling through the metatarsal head, proximal 
 
             phalanx area of the great toe, compared with the left, but 
 
             in general the right foot isn't swollen. The movement is 
 
             good. He is able to stand on his toes and the lateral border 
 
             of his foot and up on his heels. There is good heel motion 
 
             and good ankle motion. The pulses are intact. Color is 
 
             normal.
 
             
 
             X-ray of the foot was taken today to see if there have been 
 
             any changes. These appear normal with no evidence of 
 
             sympathetic dystrophy, old fracture or other deformity.
 
             
 
             I: Soft tissue injury from the accident September 8, 1986.
 
             
 
             No surgical treatment is indicated. Mr. Crowley does have a 
 
             problem with callous formation and discomfort in his foot 
 
             with driving and walking. He may benefit by depth inlaid 
 
             shoes and was given a prescription for the shop in Iowa City 
 
             where these can be obtained. In addition, he was given a 
 
             sample of Feldene and a prescription for Feldene analgesic, 
 
             anti-inflammatory medication to see if this will be helpful 
 
             for him. I agree with Dr. Bickel's assessment that he will 
 
             have a permanent impairment of 5% of the lower extremity. 
 
             He may require long term medication for his foot, in 
 
             addition to special shoes.
 
             
 
             Since a specific scheduled disability is evaluated by the 
 
             functional method under Martin, and since both physicians 
 
             involved have assessed a five percent functional impairment 
 
             rating to the lower extremity, the undersigned determines that 
 
             claimant has a five percent permanent partial disability to the 
 
             lower extremity. Claimant is entitled to receive 11 weeks of 
 
             compensation for his permanent partial disability. The 
 
             commencement date for the permanent partial disability benefits 
 
             would have commenced on October 16, 1986, the date claimant 
 
             returned to work. See Bousfield v. Sisters of Mercy, 249 Iowa 
 
             64, 86 N.W.2d 109, 114 (1957). Claimant is also entitled to 
 
             recover interest on the unpaid compensation at the rate of 10 
 
             percent per annum computed from the date each payment came due 
 
             until the date of actual payment. Teel v. McCord, 394 N.W.2d 405 
 
             (Iowa 1986).
 
        
 
                       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. On September 8, 1986, claimant was injured while 
 
        working for defendant employer.
 
        
 
            CONCLUSION A. On September 8, 1986, claimant received an 
 
        injury arising out of and in the course of his employment with 
 
        defendant.
 
        
 
            FINDING 2. As a result of the injury, claimant sustained 
 
        injuries to his foot.
 

 
        
 
 
 
 
 
        
 
            FINDING 3. Claimant has a five percent permanent partial 
 
        disability to the lower extremity.
 
        
 
            FINDING 4. The commencement date for the payment of 
 
        permanent partial disability benefits is October 16, 1986.
 
        
 
            CONCLUSION B. Claimant has met his burden of proving he is 
 
        entitled to 11 weeks of permanent partial disability benefits 
 
        because of the September 8, 1986 injury.
 
        
 
            CONCLUSION C. Interest runs from October 16, 1986.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, defendants are to pay unto claimant eleven (11) 
 
             weeks of permanent partial disability benefits at the stipulated 
 
             rate of one hundred sixty-four and 18/100 dollars ($164.18) per 
 
             week.
 
        
 
            Defendants are to also pay unto claimant three point 
 
        two-eight-six (3.286) weeks of healing period benefits at the 
 
        stipulated rate of one hundred sixty-four and 18/100 dollars 
 
        ($164.18).
 
        
 
            Defendants shall receive credit for benefits previously 
 
        paid.
 
        
 
            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.
 
        
 
            Costs are taxed to claimant pursuant to Division of 
 
        Industrial Services Rule 343-4.33.
 
        
 
            Defendants shall file a claim activity report upon payment 
 
        of this award.
 
        
 
        
 
            Signed and filed this 20th day of February, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Leslie E. Stokke
 
        Attorney at Law
 
        432 Higley Bldg.
 
        Cedar Rapids, Iowa 52402
 
        
 
        Mr. Greg A. Egbers
 
        Attorney at Law
 
        600 Union Arcade Bldg.
 
        Davenport, Iowa 52801
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                            1803.1; 3800
 
                                            Filed February 20, 1989
 
                                            MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        THOMAS B. CROWLEY,
 
        
 
             Claimant,
 
             
 
        vs.                                            File No. 833837
 
        
 
        LOUIS RICH COMPANY,                            A R B I T R A T I 
 
        O N
 
        
 
            Employer,                                 D E C I S I O N
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE
 
        COMPANY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        1803.1
 
                            
 
             Claimant awarded a five percent permanent partial disability 
 
             to the lower extremity as a result of a work related injury.
 
        
 
        3800
 
        
 
             Interest awarded on permanent partial disability to claimant 
 
             from first day claimant returned to work.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORIS J. RUIZ,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 833883 
 
         LOUIS RICH FOODS,
 
                                               A R B I T R A T I 0 N 
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Doris J. McAtee, formerly known as Ruiz, against defendant 
 
         employer Louis Rich Foods and defendant insurance carrier Liberty 
 
         Mutual Insurance Carrier to recover benefits under the Iowa 
 
         Workers' Compensation Act as the result of injuries allegedly 
 
         sustained on July 23, 1986.  This matter came on for hearing in 
 
         Davenport, Iowa, on May 31, 1989.  The cause was considered fully 
 
         submitted at the close of hearing.
 
         
 
              The record in the proceeding consists of joint exhibits 1 
 
         through 19 and the testimony of the following witnesses: 
 
         claimant, Jan Waldren, Phil Ramsay and Linda Riley.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         at hearing, the following issues have been stipulated: that an 
 
         employment relationship existed between claimant and employer at 
 
         the time of the alleged injury; that claimant seeks healing 
 
         period or temporary total disability benefits from July 24, 1986 
 
         through January 18, 1987; that if claimant is found to have 
 
         sustained a work injury with permanent disability, she has 
 
         sustained an industrial disability to the body as a whole; that 
 
         the appropriate rate of weekly compensation is $174.54; that 
 
         affirmative defenses are not applicable; that the fees
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS 
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         charged for medical services and supplies are fair and 
 
         reasonable; that the provider of medical services or supplies 
 
         would testify that the treatment was reasonable and necessary and 
 
         defendants offer no contrary evidence; that defendants are 
 
         entitled to credit under Iowa Code section 85.38(2) for sick 
 
         pay/disability benefits in the sum of $3,459.92 and 
 
         medical/hospitalization benefits in the sum of $7,235.09.
 
         
 
              Issues presented for resolution include: whether claimant 
 
         sustained an injury on July 23, 1986, arising out of and in the 
 
         course of her employment; whether the alleged injury caused 
 
         temporary or permanent disability and the extent thereof; the 
 
         extent of claimant's entitlement to medical benefits and whether 
 
         the same are casually connected to the work injury; taxation of 
 
         costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she is 61 years of age, having been 
 
         born on May 17, 1928.  Her educational background includes 
 
         completing tenth grade.  Her work history includes beginning 
 
         employment with defendant for approximately two years in about 
 
         1967, then taking off work for one year before returning to 
 
         employment with defendant where she continued for 19 years.
 
         
 
              Claimant indicated that she has held a number of positions 
 
         with defendant, a meat packer.  Prior to the onset of back pain 
 
         in 1985 or 1986 she pulled backs, worked in packaging, molding, 
 
         and in eviscerating.  For about 3-4 years before the alleged 
 
         injury, claimant sharpened and washed electrical knives, a job 
 
         similar to what she currently performs.  Lifting included 
 
         carrying pans of electrical knives to the area where the same are 
 
         used and lifting motors.  Claimant normally worked an 8-hour day, 
 
         which for the last several years entailed standing on concrete 
 
         surfaces.
 
         
 
              Claimant testified to first noticing back pain in 
 
         approximately January, 1986, which thereafter worsened.  The 
 
         first physician she visited was a chiropractic practitioner, 
 
         Forrest Edkin, D.C.  Dr. Edkin submitted billings for treatments 
 
         and foot supports in February and April, 1986.  Thereafter, 
 
         claimant visited Curtis Frier, D.O., who eventually referred her 
 
         to William Pontarelli, M.D.  After several steroid injections, 
 
         claimant underwent back surgery performed by Dr. Pontarelli.
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS
 
         Page 3
 
         
 
         
 
              Claimant was hospitalized from December 2 through December 
 
         10, 1986 for her surgery, returning to work on January 19, 1987.
 
         
 
              When claimant returned to work it was to her previous 
 
         position.  She at that time suffered no back pain, but testified 
 
         that about 16 months later began suffering further radicular pain 
 
         to the leg when she put on a pair of boots.  Her current 
 
         complaint is similar to that of pain that existed prior to 
 
         surgery.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although claimant has seen physicians for back pain in the 
 
         past, she testified that her pain was not "serious" until the 
 
         time of this claimed injury.
 
         
 
              Claimant is now earning $7.34 per hour, which exceeds her 
 
         wage prior to the claimed injury.  Asked on direct examination 
 
         what other work she was capable of doing, claimant did not answer 
 
         responsively.
 
         
 
              On cross-examination, claimant conceded that she began her 
 
         current job in March, 1985 when her former job was eliminated.  
 
         She agreed that her jobs between 1972 and 1985 did not involve 
 
         lifting.
 
         
 
              Claimant also agreed that she intended to retire at age 62 
 
         prior to her surgery and still does.
 
         
 
              On redirect examination, claimant indicated that the reason 
 
         she was forced to leave work on July 23, 1986, was because pain 
 
         had developed in her right leg from the ankle to the knee, not 
 
         limited to the back.
 
         
 
              Jan Waldren testified that she is claimant's current 
 
         supervisor.  She indicated that claimant does a good job and 
 
         works a regular 40-hour week with some Saturdays, some mandatory 
 
         but some as a volunteer.
 
         
 
              Phil Ramsay testified to being plant training manager.  He 
 
         noted that claimant had complained of back pain prior to the 
 
         claimed injury.  Claimant did not complain of a traumatic event 
 
         or claim the back pain was work related.  He further specified 
 
         that claimant had no heavy lifting responsibilities from 1972 to 
 
         1985.  In addition, from 1985 to 1986, claimant had no lifting 
 
         over 10-15 pounds.  Those would be pans of knives.  He believed 
 
         Whizard knives to weigh about 17 ounces, cables 16 ounces, and 
 
         straight knives 1-2 ounces.  He further testified that a stool 
 
         was available for claimant's use beginning at least in September, 
 
         1985.
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS
 
         Page 4
 
         
 
         
 
              On cross-examination, Mr. Ramsay conceded that claimant 
 
         occasionally might carry motors to the production line.  Such 
 
         motors might weigh up to 23 pounds.
 
         
 
              Linda Riley testified to currently being defendant's safety 
 
         and security supervisor.  She agreed that claimant did no 
 
         significant lifting prior to 1985.
 
         
 
              As to weights, Ms. Riley testified that model 520 motors 
 
         weigh 19 pounds, model 850 motors weigh 22 1/2 to 23 pounds, 
 
         cables weigh 1 to 2.3 pounds, and Whizard knives weigh 17 ounces.  
 
         She believed that prior to surgery claimant lifted at most 9-14 
 
         pounds, being pans of knives.  She also testified that floors are 
 
         of a non-slip material like blacktop, but agreed on 
 
         cross-examination that the knife room may feature a concrete 
 
         floor.  She noted that a stool was in the knife room by 1984 and 
 
         believed that no job required claimant to stand in one spot for 
 
         eight hours from 1972 to 1986.  However, on cross-examination, 
 
         she agreed that she could not dispute that prior to 1986 claimant 
 
         might have stood "virtually all the time."
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Records of Dr. Edkin show that claimant was seen for back 
 
         treatment on August 9, 1984 in addition to five visits in 
 
         February and April, 1986.  On an insurance form he prepared 
 
         February 21, 1986, he expressed the opinion that claimant's 
 
         condition (misalignment of fifth lumbar vertebra) was not related 
 
         to claimant's employment.
 
         
 
              Records of Curtis J. Frier, D.O., show that he wrote on a 
 
         prescription slip dated June 25, 1986 that claimant should be 
 
         excused for the next four days due to sciatic back pain and 
 
         needed bed rest.
 
         
 
              Dr. Pontarelli's notes of July 24, 1986 reflect that 
 
         claimant presented with right leg pain and burning radiating to 
 
         her foot and believed that her pain was aggravated by standing on 
 
         cement.  Symptoms began about three months before and had 
 
         increased.  Claimant gave a history of one episode of pain 
 
         several years ago after lifting two five-gallon buckets of water.  
 
         He found sensation diminished along the L5 and Sl nerve roots on 
 
         the right and x-rays revealed degenerative arthritis of the 
 
         lumbar spine.  Claimant was to be referred to R. F. Beckman, 
 
         M.D., for epidural steroid injection.
 
         
 
              Dr. Pontarelli reported on August 19 that claimant was 
 
         better, but that he recommended a repeat injection.  On September 
 
         9, Dr. Pontarelli reported that claimant had only one week of 
 
         relief following her last epidural injection, but did not plan 
 
         surgery at present.  He reported further on
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS 
 
         Page 5
 
         
 
         
 
         October 23, 1986 that claimant continued worsening and was to be 
 
         sent for EMG's nerve conductions and consideration of myelography 
 
         in anticipating planned surgery for decompression of stenosis.
 
         
 
              Dr. Pontarelli performed a lateral recessed decompression 
 
         of L4-L5 and L5-Sl on December 3, 1986.  Discharge diagnosis was 
 
         L5 radiculopathy secondary to spinal stenosis of L4-L5, L5-Sl.  
 
         Dr. Pontarelli then reported on January 22, 1987 that claimant 
 
         was virtually asymptomatic.  Physical examination showed no 
 
         sensory deficits.  Motor was normal, sitting test was normal.  
 
         Claimant had been allowed to return to work on January 19, 1987 
 
         "with restrictions of no lifting more than 5 lbs. and no frequent 
 
         lifting of such and if needed she was given a 6 week return 
 
         appointment."
 
         
 
              Dr. Pontarelli wrote on August 24, 1987:
 
         
 
              Doris Ruiz's problem was related to the work in that if she 
 
              would go to work and have to stand in one spot for eight 
 
              hours a day, this would substantially cause the pain that 
 
              she was having by creating a situation where the spurs in 
 
              her spine were pressing on the nerves to her leg.  So 
 
              therefore, I feel that the work conditions were such to 
 
              cause the pinched nerve in her leg which eventually 
 
              necessitated her surgery.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              As early as July 24, 1986, Dr. Pontarelli prepared a 
 
         billing showing the view that claimant's disability was work 
 
         related and continuing.
 
         
 
              J. B. Worrell, M.D., performed a myelogram on November 14, 
 
         1986.  His diagnosis was of herniated lumbar disc at L4-5 on the 
 
         right.
 
         
 
              Dr. Worrell was also seen for consultation on March 30, 
 
         1989.  He reported that claimant did quite well following her 
 
         surgery, but that she had begun having problems again about a 
 
         year before with discomfort around the right leg at the knee.  
 
         Claimant reported no numbness or tingling.  Straight leg raising 
 
         was "a bit uneasy" on the right.  Claimant had loss of pin 
 
         perception over the right lower extremity below the knee and 
 
         vibratory perception was a bit diminished as well.  There was no 
 
         pain:with flexion or twisting.  Gait was not painful.  Dr. 
 
         Worrell reported that "[C]learly, this woman has had problems 
 
         related to her standing at work over the years and now has 
 
         recurrent problem with the right knee and leg.  Whether this 
 
         represents recurrent disc or actual pathology of the knee is not 
 
         clear."
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS 
 
         Page 6
 
         
 
         
 
              Dr. Worrell wrote claimant's attorney on May 8, 1989, in 
 
         pertinent part:
 
         
 
              I would be able to state with a reasonable degree of medical 
 
              certainty that Mrs. McAtee's condition was caused by and 
 
              more recently aggravated by her prolonged standing at her 
 
              work.  Up until her back operation in 1986 she had worked 17 
 
              years standing and lifting quite heavily.  I am sure this 
 
              precipitated her chronic degenerative condition of the 
 
              lumbar spine.  On the basis of my more recent examination, 
 
              she again has developed symptoms referable to lumbar disc 
 
              disease and nerve root irritation.  Even though she has been 
 
              back at light work, the condition was precipitated from her 
 
              previous 17 years of heavy work.  I would also be able to 
 
              state that she does have a permanent partial impairment 
 
              rating of approximately 12% of the body as a whole.  This 
 
              estimate is taken from the AMA Guidelines.  In addition, she 
 
              potentially has a right knee problem and also has varicose 
 
              veins which I am sure are precipitated by the same factors.
 
         
 
              With respect to this opinion, it should be noted that 
 
         claimant agreed on cross-examination that Dr. Worrell's history 
 
         of 17 years of lifting quite heavily was inaccurate.
 
         
 
              A surgeon's report prepared by Brian Masonholder, M.D., on 
 
         October 16, 1986, reflects his view that claimant's sacroiliac 
 
         strain and sciatica were related to a work accident of unknown 
 
         date.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Exhibit 11 contains medical bills of Dr. Worrell, Steindler 
 
         Clinic, Dr. Myron Brown, Mercy Hospital, and anesthesia service 
 
         totalling $6,962.45.
 
         
 
              Exhibit 3 is an employee's sickness and accident report 
 
         form reflecting that claimant was off work from July 24, 1986 
 
         through January 18, 1987.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of 
 
         the evidence that she received an injury on July 23, 1986 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976) Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS
 
         Page 7
 
         
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place 
 
         and circumstances of the injury.  McClure v. Union et al. 
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. 
 
         Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers, compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.   [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS
 
         Page 8
 
         
 
         
 
              body, or otherwise damages or injures a part or all of the 
 
         body.
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of July 23, 1986 is casually 
 
         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 casual 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 casual 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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Edkin opined that claimant's condition, the 
 
         misalignment of vertebrae, was not related to employment.  Dr. 
 
         Pontarelli, the treating surgeon, believed that claimant's 
 
         history of standing in one spot for substantial times at work 
 
         created a situation where the spurs in her spine were pressing on 
 
         the nerves to the leg and that therefore, the work conditions 
 
         caused the pinched nerve which eventually necessitated surgery.  
 
         As early as July 24, 1986, Dr. Pontarelli was of the belief that 
 
         claimant's disability was work related and continuing.  Dr. 
 
         Worrell stated with a reasonable degree of medical certainty that
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS 
 
         Page 9
 
         
 
         
 
         claimant's condition "was caused by and more recently aggravated 
 
         by her prolonged standing at her work."  However, he also 
 
         understood that claimant had a 17-year history of lifting quite 
 
         heavily, which has been shown to be an inaccurate perception.
 
         
 
              Clearly, there are some inconsistencies in the medical 
 
         evidence.  While claimant had a number of back problems prior to 
 
         July, 1986, she testified that her pain was not "serious" until 
 
         that time.  This appears to be borne out by the undisputed facts 
 
         that claimant was not forced to leave work until this time and 
 
         was not forced to undergo surgery.  It is held that claimant has 
 
         met her burden of proof in establishing a cumulative injury to 
 
         her spine arising out of and in the course of her employment.  
 
         This injury took the form of aggravating or lighting up her 
 
         preexisting condition of stenosis.
 
         
 
              Similarly, even though Dr. Worrell's opinion was in part 
 
         based upon a faulty history, the bulk of the medical evidence 
 
         does establish that claimant's injury was causative of her 
 
         surgery and subsequent disability.
 
         
 
              Pursuant to Iowa Code section 85.34(l), healing period 
 
         benefits are allowed from the date of injury 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.  In cases of cumulative injury, the injury 
 
         date is the date when the individual is required to finally leave 
 
         work.     McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985).  Claimant left work by reason of her disability on July 
 
         24, 1986.  She returned to substantially similar employment on 
 
         January 19, 1987.  Therefore, it is held that her healing period 
 
         extends from July 24, 1986 through January 18, 1987, a total of 
 
         25 weeks, 4 days.
 
         
 
              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
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS 
 
         Page 10
 
         
 
         
 
         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).
 
         
 
              When claimant was released to return to work by Dr. 
 
         Pontarelli, it was with a restriction against lifting more than 
 
         five pounds and no frequent lifting.even of that weight.  This is 
 
         clearly a major restriction, but it is unclear from the record 
 
         whether it was intended to be permanent or temporary.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When claimant did return to work, she was asymptomatic and 
 
         remained so for some 16 months.  She began suffering further 
 
         radicular pain when pulling on a pair of boots at
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS 
 
         Page 11
 
         
 
         
 
         that remote time.  The only physician to have expressed an 
 
         opinion as to the casual relationship between claimant's 
 
         condition subsequent to this incident and the original work 
 
         injury is Dr. Worrell, and, as has been seen, his opinion was 
 
         based on a faulty history.  It is held that claimant has failed 
 
         to meet her burden of proof in establishing that her current 
 
         condition is casually related to the work injury, as opposed to 
 
         her condition prior to the boot incident some 16 months after 
 
         surgery.
 
         
 
              Claimant's education is only at the tenth grade level.  Her 
 
         work history appears to be exclusively with defendant, for two 
 
         years, and then 19 additional years.  Claimant was 61 years of 
 
         age at the time of hearing and intended, even before her injury, 
 
         to retire at age 62.  Of course, she would not have needed to 
 
         retire, and, on the other hand, was back to work at the time of 
 
         hearing and would not need to retire now.  She is currently 
 
         earning wages in excess of her earnings prior to the injury.
 
         
 
              Nonetheless, it appears that claimant's earning potential 
 
         has suffered a diminution by reason of the work injury, even 
 
         though there is a probability that she would have retired at age 
 
         62 with or without the injury.  On the basis of the foregoing 
 
         facts in particular and the record in general, it is held that 
 
         claimant has sustained an industrial disability of 10 percent or 
 
         50 weeks.
 
         
 
              The medical bills set forth in exhibit 11 and totalling 
 
         $6,962.45 appear to be casually related to the work injury.  It 
 
         is held that claimant has met her burden of proof in establishing 
 
         entitlement to those medical benefits under Iowa Code section 
 
         85.27.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. As stipulated, claimant was employed by defendant Louis 
 
         Rich Foods on July 24, 1986.
 
         
 
              2. Claimant suffered a condition of spinal stenosis with 
 
         radiculopathy which was aggravated and lighted up by her 
 
         employment, being forced to leave work due to pain and physical 
 
         inability on July 24, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. Claimant returned to substantially similar employment on 
 
         January 19, 1987, the disability being caused by the work injury.
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS
 
         Page 12
 
         
 
         
 
              4. When claimant returned to work following surgery, she 
 
         was asymptomatic and remained so for some 16 months following 
 
         surgery.  Thereafter, she suffered new symptoms after pulling on 
 
         her boots.
 
         
 
              5. Claimant was limited to five pounds lifting, and no 
 
         repetitive lifting of even that amount when she returned to work; 
 
         it is unclear whether these restrictions were intended to be 
 
         permanent or temporary.
 
         
 
              6. Claimant, age 61 at hearing, intended to retire at age 
 
         62 even before her work injury.
 
         
 
              7. When claimant returned to work, it was at a rate of pay 
 
         higher than was the case prior to the work injury.
 
         
 
              8. By reason of the subject work injury, claimant has 
 
         sustained a reduction in her earning capacity of 10 percent.
 
         
 
              9. As stipulated, claimant is entitled to weekly benefits 
 
         in the sum of $174.54.
 
         
 
              10. Medical expenses of $6,962.45, as set forth in joint 
 
         exhibit 11, are casually related to the work injury and were 
 
         accrued as reasonable and necessary expenses.
 
         
 
              11. As stipulated, defendants are entitled to credit under 
 
         Iowa Code section 85.38(2) in the sum of $10,692.01.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1. Claimant suffered an injury arising out of and in the 
 
         course of her employment on July 24, 1986.
 
         
 
              2. Claimant's work injury directly caused a healing period 
 
         from July 24, 1986 through January 18, 1987 (25 weeks, 4 days).
 
         
 
              3. Claimant's' work injury has caused an industrial 
 
         disability of 10 percent of the body as a whole (50 weeks).
 
         
 
              4. Claimant's rate of compensation is $174.54.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5.Claimant is entitled to medical expenses under Iowa Code 
 
         section 85.27 in the sum of $6,962.45.
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS
 
         Page 13
 
         
 
         
 
              6. Defendants are entitled to credit under Iowa Code 
 
         section 85.38(2) for sick pay/disability and 
 
         medical/hospitalization benefits totalling $10,692.01.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant twenty-five point five 
 
         seven one (25.571) weeks of healing period benefits at the rate 
 
         of one hundred seventy-four and 54/100 dollars ($174.54) per 
 
         week, totalling four thousand four hundred sixty-three and 16/100 
 
         dollars ($4,463.16).
 
         
 
              Defendants are to pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         seventy-four and 54/100 dollars ($174.54) per week, totalling 
 
         eight thousand seven hundred twenty-seven and 00/100 dollars 
 
         ($8,727.00).
 
         
 
              Defendants are entitled to credit under Iowa Code section 
 
         85.38(2) in the sum of ten thousand six hundred ninety-two and 
 
         01/100 dollars ($10,692.01).
 
         
 
              As all disability benefits ordered herein have accrued, 
 
         they shall be paid to claimant as a lump sum together with 
 
         statutory interest pursuant to Iowa Code section 85.30.
 
         
 
              Defendants shall pay medical suppliers as set forth in 
 
         joint exhibit 11 in the sum of six thousand nine hundred 
 
         sixty-two and 45/100 dollars ($6,962.45).
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall 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 APRIL, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID RASEY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         RUIZ v. LOUIS RICH FOODS 
 
         Page 14
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James R. Keele 
 
         Attorney at Law 
 
         104.East Third Street 
 
         P.O. Box 156
 
         West Liberty, Iowa  52776
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed April 24, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DORIS J. RUIZ,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 833883
 
            LOUIS RICH FOODS,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 10 percent permanent partial disability 
 
            following cumulative back injury.