BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS L. SMITH,
 
         
 
              Claimant,                         File No. 837604
 
         
 
         vs.
 
                                             A R B I T R A T I O N
 
         
 
         CITY OF MUSCATINE, IOWA,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INS. CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Dennis Smith, 
 
         claimant, against City of Muscatine, employer, and Northwestern 
 
         National Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on September 25, 1985.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         July 14, 1988.  The record was considered oily submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of the claimant, Sheila Smith, his wife, and Roger 
 
         Kromphardt; claimant's exhibits 1 through 10, inclusive, and 
 
         defendants' exhibit A.
 
         
 
                                      ISSUE
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved July 14, 1988, the sole issue presented for resolution 
 
         is the extent of claimant's permanent partial disability 
 
         stipulated to be an industrial disability to the body as a 
 
         whole.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on September 25, 1985, when, while 
 
         lifting garbage onto a one man refuse truck, he felt something 
 
         pop" in his left shoulder.  Claimant testified he underwent, as a 
 
         result of the injury, two surgical procedures and was released to 
 
         return to work but only on a two man garbage truck.
 
         
 
              Claimant explained that after working approximately one 
 
         month, he reinjured his shoulder and underwent another operation.  
 
         Claimant testified that following this last operation he was 
 
         unable to return to work as a garbage collector due to his 
 
         medical restrictions and that although he tried to secure other 
 
         employment with the city, none was made available to him.  
 
         Claimant explained he was notified of his discharge from 
 
         employment with defendant City of Muscatine in November 1986, at 
 

 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   3
 
         
 
         
 
         
 
         
 
         an unemployment insurance hearing.  Claimant testified that with 
 
         the exception of part-time employment delivering newspapers for 
 
         which he is paid $.11 per mile and $.11 per paper, he has not 
 
         worked at all.  Claimant stated he conducted vast and various job 
 
         searches but was told each place he sought work that the company 
 
         was either not hiring or could not hire him because of his injury 
 
         and resulting restrictions.
 
         
 
              Claimant testified that he is under medical restrictions to 
 
         not lift more than 25 pounds and then only to table height and 
 
         that his physician recommended that he not return to a garbage 
 
         truck but seek work at a desk job.  Claimant explained he 
 
         experiences pain in his neck, back, and the front top and back 
 
         sides of his shoulder.  Claimant described his pain as constant 
 
         and that he has learned to live with it.  Claimant testified that 
 
         he has found the pain to be more intense when he is lying down.
 
         
 
              Claimant testified he is desirous of returning to work as 
 
         his lack of work has placed "a lot of financial strain" on his 
 
         family.  However, he expressed his belief there is "no way" he 
 
         can return to work with his physical impairment and that he has, 
 
         with the assistance of community college counselors and 
 
         rehabilitation consultants, begun looking towards retraining in 
 
         the field of industrial engineering which would qualify him to do 
 
         surveying and blueprint reading.  Claimant testified he cannot 
 
         pursue such an endeavor without assistance.  Defendants have, at 
 
         this time, expressed a willingness to provide the assistance 
 
         needed to see claimant through the two year program.
 
         
 
              Sheila Smith testified to claimant's current ability or 
 
         inability to work and that since claimant's injury she is "doing 
 
         most of the man's work around the house."  She stated claimant is 
 
         in constant pain, is nervous and worries over the family's 
 
         financial situation.
 
         
 
              Roger Kromphardt, vocational rehabilitation consultant, 
 
         testified he first interviewed claimant on the request of 
 
         defendants on June 15, 1988, and discussed claimant's work 
 
         history, motivation to return to work, retraining, and found 
 
         claimant's testimony at the hearing to be consistent with their 
 
         earlier discussions.  He described claimant's efforts to secure 
 
         employment as "hit and miss" with no clear goal most probably 
 
         because of a lack of knowledge, experience and sophistication of 
 
         how to go about looking for work.  Kromphardt opined claimant is 
 
         educable for any type of retraining but advised he should stay 
 
         within a one to two year program and felt claimant was capable of 
 
         completing the two year industrial engineer program at Muscatine 
 
         Community College which is of interest to claimant.  Kromphardt 
 
         acknowledged that without retraining claimant's transferable 
 
         skills were very limited and particularly limited to the clerical 
 
         area, an area in which claimant has not worked since he was in 
 
         the army in approximately 1972 and that claimant, without 
 
         retraining, cannot meet the same standard of living as when he 
 
         was employed with defendant City of Muscatine.  Kromphardt stated 
 
         there was no question claimant has sustained a loss of earning 
 
         capacity and that it would take approximately three years 
 
         (including two years of schooling) for claimant to reach the wage 
 
         level he was at with the City of Muscatine at the time of his 
 
         injury.  Kromphardt admitted knowledge of claimant's part-time 
 
         employment delivering newspapers but stated he did not consider 
 
         this job to be gainful employment as it had no future, no 
 
         benefits and was an unskilled position.
 
         
 
              William Catalona, M.D., orthopedic surgeon, testified he 
 
         took over claimant's follow-up care beginning July 7, 1986, when 
 
         claimant's treating physician, Patrick Kessler, M.D., left the 
 
         Muscatine area.  Dr. Catalona explained claimant was first seen 
 
         by Dr. Kessler on October 1, 1985, and on examination was found 
 

 
         
 
         
 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   3
 
         
 
         
 
         to have full passive motion and near full active motion with 
 
         reasonable cuff strength but significant pain when supraspinous 
 
         was stressed with reference to the left shoulder.  Dr. Catalona 
 
         stated that at that time neurovascular was intact with no neck 
 
         pain and full range of motion of the neck.  Dr. Kessler 
 
         recommended conservative treatment and steroid injections which 
 
         failed to provide claimant with any relief.  Dr. Catalona relayed 
 
         that Dr. Kessler suspected there might be a tear of the rotator 
 
         cuff and obtained an arthrogram but the arthrogram was normal.  
 
         An arthroscopy was done February 28, 1986, which found "fraying," 
 
         meaning a bit of irregularity and tearing of the edges of the 
 
         glenoid labrum and multiple small.tears, which were treated with 
 
         debridement and shaving.  Dr. Catalona stated that claimant 
 
         continued to have pain and that Dr. Kessler eventually diagnosed 
 
         impingement syndrome.  When no improvement with conservative 
 
         treatment was noted, claimant underwent anterior acromioplasty at 
 
         which time moderate erosions over the infraspinous tendon were 
 
         found and a suture at the site of the erosions was put in place 
 
         for purposes of reinforcement.  On June 23, 1986, Dr. Kessler 
 
         reported he anticipated another nine weeks before claimant could 
 
         return to work and that prior to doing so, claimant would need 
 
         physical therapy.
 
         
 
              On July 7, 1986, when claimant was seen by Dr. Catalona, 
 
         claimant was advised to discontinue his sling and was sent to 
 
         physical therapy.  On July 29, 1986, Dr. Catalona wrote:
 
         
 
                 Mr. Smith complains his shoulder still hurts to 
 
              raise overhead.  He has been doing strengthing 
 
              exercises at the rehabilitation center and is gradually 
 
              regaining his strength.
 
         
 
                 Mr. Smith states he would be willing to return to 
 
              work which would not aggravate his shoulder.  This 
 
              means that Mr. Smith could do work at table height 
 
              level but would be restricted in ability to elevate his 
 
              shoulder or lift more than 25 pounds even to table 
 
              height level.  He should avoid using his shoulder for 
 
              overhead lifting since this would certainly aggravate 
 
              his torn and repaired tendon.
 
         
 
                 A desk type job would be ideal .... You should know 
 
              that Mr. Smith is not suited for working on the trucks 
 
              collecting rubbish.
 
         
 
         (Claimant's Exhibit 2)
 
         
 
              Dr. Catalona concluded:  "I used the AMA Guide to determine 
 
         Mr. Smith's impairment.  20% impairment of the upper extremity is 
 
         related to 12% impairment of the whole person." (Cl. Ex. 4)
 
         
 
              G. Brian Paprocki, who described himself as a vocational 
 
         consultant in private practice, testified he interviewed claimant 
 
         on February 9, 1987.with a follow-up on June 27, 1987, on the 
 
         request of claimant's counsel to "gain information relative to 
 
         the primary vocational factors which are determined of industrial 
 
         disability, primarily a person's age, his education, his 
 
         background." (Cl. Ex. 10, pp. 6-7)  After reviewing claimant's 
 
         employment history and medical records, Paprocki opined that 
 
         claimant had sustained an industrial disability, that claimant 
 
         does not have skills which would be adaptable to other jobs that 
 
         would be significantly less physical in nature, that it would not 
 
         be effective for claimant to seek re-employment because he would 
 

 
         
 
         
 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   4
 
         
 
         
 
         be limited to jobs which are entry level and unskilled in nature 
 
         and that the more productive approach would be first to seek some 
 
         training or find a job that provided some training so that he 
 
         could acquire some new skills.
 
         
 
              In October 1986, claimant was referred to Julian M. Burn, 
 
         Ph.D., clinical psychologist, for a basic screening examination 
 
         relevant to vocational rehabilitation.  Dr. Burn concluded:
 
         
 
                 Mr. Smith is a 31 year old, white, married male who 
 
              indicates that he does desire some vocational 
 
              rehabilitation in regard to an injury that he did 
 
              sustain at his work.  He is very concerned that a third 
 
              injury to the shoulder would incapacitate him to a 
 
              point where he would be unable to use it, and he is not 
 
              going to risk doing that again.  The particular job 
 
              does not allow for a reduced schedule or light work, 
 
              and he does feel he is forced to look for other work 
 
              that he would be able to do with his injured shoulder.
 
         
 
                 In terms of overall intellectual and achievement 
 
              skills, Mr. Smith would seem to be able to achieve and 
 
              be successful at such a program.  His verbal and 
 
              nonverbal IQ equivalent scores are well in the average 
 
              range and this data is confirmed by the Wide Range 
 
              Achievement testing which places him at the standard 
 
              score level of 93 in both reading and arithmetic.  The 
 
              California Life Goals Evaluation Schedule does place 
 
              some interest in terms of Self-Expression where he does 
 
              indicate a desire to satisfy needs and to pursue goals 
 
              in a very unique and individualistic way.  He is very 
 
              expressive and open in his communication, and does 
 
              desire to direct and lead to some extent if the 
 
              opportunity were available.  He also does have some 
 
              interest in becoming economically free and is concerned 
 
              about social survival.  He is interested in new things 
 
              and would appear to be open to change and willing to 
 
              try new things.  In general, it is felt that Mr. Smith 
 
              would be an excellent candidate for rehabilitation in 
 
              terms of overall ability, as well as motivation.
 
         
 
         (Cl. Ex. 1)
 
         
 
                                  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(l).
 
         
 
              As a 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,      (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."
 
         
 
              Iowa Code section 85.34(2)(u) provides:
 
         
 
                 Compensation for permanent partial disability shall 
 
              begin at the termination of the healing period .... For 
 

 
         
 
         
 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   5
 
         
 
         
 
              all cases of permanent partial disability compensation 
 
              shall be paid as follows:
 
         
 
                 u.  In all cases of permanent partial disability 
 
              other than those hereinabove described or referred to 
 
              in paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
                               ANALYSIS
 
         
 
              It is not disputed that claimant sustained an injury on 
 
         September 25, 1985 which arose out of and in the course of his 
 
         employment nor that the work injury is the cause of both 
 
         temporary and permanent disability.  The parties have agreed 
 
         claimant's permanent disability is an industrial disability to 
 
         the body as a whole.  What is left to be determined is the extent 
 
         of this industrial disability.
 
         
 
              The only medical expert to present testimony with regard to 
 
         claimant's functional impairment was Dr. William Catalona who 
 
         opined claimant has a permanent impairment of 12 percent to the 
 
         body as a whole with medical restrictions not to do work over 
 
         head that would involve elevating his shoulder, to work at table 
 
         height and not to lift more than 25 pounds even to table height 
 
         level.
 
         
 
              Functional disability 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 by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  The 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 later 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 arid 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.
 

 
         
 
         
 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   6
 
         
 
         
 
         
 
              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 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).
 
         
 
              Claimant is 32 years old with a tenth grade formal education 
 
         who secured a GED in approximately 1975.  Claimant does have some 
 
         additional formal training as a truck driver at a community 
 
         college.  However, his previous work experience is primarily that 
 
         of a laborer.  Claimant, Dr. Catalona, and the vocational 
 
         rehabilitation experts who testified all agree claimant could not 
 
         perform this type or classification of work as a result of his 
 
         work injury.  Dr. Catalona recommended a clerical-type desk 
 
         position and claimant does have some experience as a clerk/typist 
 
         from his army enlistment in the early 1970s.  While it is 
 
         recognized claimant was able, at the time of his discharge from 
 
         the army, to type 80 words per minute, it must be noted these 
 
         skills have not been utilized for many years.  Claimant testified 
 
         he purchased a used typewriter after his injury in order to 
 
         attempt to hone his typing skills but was only able to manage 20 
 
         words per minute at best.  Claimant's medical history prior to 
 
         the injury is scant.  There appears to have been little he feared 
 
         tackling before while his wife now describes her responsibility 
 
         to do those things around the house that are the "man's jobs."  
 
         Clearly, there has been a substantial change in claimant's 
 
         physical capabilities.  Just as clearly, this has hampered 
 
         claimant's ability to earn.
 
         
 
              Claimant, at the time of his injury, was earning in excess 
 
         of $8.00 per hour plus benefits with the City of Muscatine.  
 
         Evidence establishes that without retraining (which will be 
 
         discussed below) claimant has little hope of securing employment 
 
         at anything more than entry level wages which is variously 
 
         described as minimum wage to no more than $5.00 per hour.  
 
         Claimant has not worked at anything more than part-time 
 
         employment delivering newspapers since the time of his injury.  
 
         Defendants, although continually acknowledging the compensability 
 
         and its liability for the injury, make no attempt to make any 
 
         other work available to claimant.  Claimant's testimony is 
 
         unrefuted that he attempted to secure alternate employment with 
 
         the city and that his attempts were answered with either 
 
         inappropriate or no responses.  A defendant employer's refusal to 
 
         give any sort of work to a claimant after he suffers his 
 
         affliction may justify an award of disability.  McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  The industrial 
 
         commissioner recently stated in Galardo v. Firestone Tire 
 
         Company (Appeal Decision filed October 21, 1987) that the 
 
         employer's repeated efforts to retain claimant as an employee 
 
         after his injury and to accommodate his medical restrictions 
 
         resulting therefrom reduces the amount of claimant's industrial 
 
         disability.  If so, the opposite must also be true.
 

 
         
 
         
 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   7
 
         
 
         
 
         
 
              There is no question claimant's best chance to re-enter the 
 
         labor market is through retraining.  All the experts agree 
 
         claimant has the intellectual, achievement and motivational 
 
         skills necessary to successfully complete a two year training 
 
         course.  It is clear claimant is desirous of once again attaining 
 
         the employment status he once held.  Claimant's motivation to 
 
         either return to work and particularly to return to school to 
 
         acquire new skills is obviously sincere.  Yet, claimant, because 
 
         of what would appear to be indifference on the part of the 
 
         employer in this case for a considerable period of time, has been 
 
         left totally on his own to try to rebuild what was broken as a 
 
         result of the work injury.  It was not until just prior to 
 
         hearing, over two years after claimant's injury, that defendants 
 
         took any steps to provide claimant with some structured, 
 
         continuing assistance.  Although there has been no formal 
 
         agreement reached, defendants have now indicated a willingness to 
 
         assist claimant to complete the industrial engineering course at 
 
         the local community college.  It is strongly encouraged 
 
         defendants fulfill its representations for without this 
 
         retraining, there is little likelihood claimant could regain the 
 
         earning capacity lost as a result of the injury.  Considering 
 
         then all the elements of industrial disability, it is found 
 
         claimant, as a result of the work injury of September 25, 1985, 
 
         has sustained a permanent partial disability of 45 percent for 
 
         industrial purposes.
 
         
 
                                 
 

 
         
 
         
 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   8
 
         
 
                                 
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on September 25, 1985.
 
         
 
              2.  Claimant is 32 years old with a formal education to the 
 
         tenth grade and a GED.
 
         
 
              3.  claimant underwent a number of operative procedures as a 
 
         result of his work injury and, when he was finally released to 
 
         return to work, had medical restrictions imposed on him which 
 
         prevented his returning to work as a refuse collector.
 
         
 
              4.  Defendant City of Muscatine made no effort to make 
 
         alternate employment available to claimant and subsequently 
 
         discharged claimant from his employment.
 
         
 
              5.  Claimant, who has primary work experience as a laborer, 
 
         has few transferable skills which would enable him to secure work 
 
         and, because of restrictions, is unable to engage in employment 
 
         for which he is currently fitted.
 
         
 
              6.  Claimant's only job since his injury has been part time 
 
         delivering newspapers at a rate of pay of $.11 per mile and $.11 
 
         per paper.
 
         
 
              7.  At the time of claimant's injury, he was earning in 
 
         excess of $8.00 per hour plus benefits.
 
         
 
              8.  Claimant has the necessary intellectual, motivational 
 
         and achievement skills to complete vocational rehabilitation 
 
         training.
 
         
 
              9.  Claimant, as a result of the work injury of September 
 
         25, 1985, has sustained an industrial disability of 45 percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established an industrial disability of 45 
 
         percent as a result of his work injury of September 25,
 
         1985.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant two hundred twenty-five 
 
         (225) weeks of permanent partial disability benefits at the 
 
         stipulated rate of two hundred three and 47/100 dollars ($203.47) 
 
         per week commencing October 19, 1986.
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              Benefits that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 

 
         
 
         
 
         
 
         SMITH V. CITY OF MUSCATINE, IOWA
 
         PAGE   9
 
         
 
         
 
              A claim activity report shall be paid upon payment of the 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 25th day of July, 1988.
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. William J. Bribiesco
 
         Attorney at Law
 
         2407 18th St, Ste 202
 
         Bettendorf, IA 52722
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         Davenport, IA 52801
 
         
 
         Mr. Fred A. Berger
 
         Attorney at Law
 
         905 Kahl Bldg
 
         Davenport, IA 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed July 25, 1988
 
                                                 DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS L. SMITH,
 
         
 
              Claimant,
 
                                                   File No. 837604
 
         vs.
 
                                               A R B I T R A T I O N
 
         CITY OF MUSCATINE, IOWA,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INS. CO.
 
         
 
              Insurance Carrier
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant, who worked as a refuse collector for the City of 
 
         Muscatine, injured his shoulder two different times and was 
 
         unable to return to work in his regular job.  The City made no 
 
         other work available and discharged claimant from employment.  
 
         Claimant has a 10th grade education with a GED, primary work 
 
         experience as a laborer and a good potential for rehabilitation 
 
         without which it is unlikely claimant will reenter the work force 
 
         in anything but minimum wage jobs.  Claimant found to have a 45 
 
         percent permanent partial disability for industrial purposes.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD DEHEER,
 
         
 
              Claimant,                                  File No. 837605
 
         
 
         vs.                                          A R B I T R A T I O 
 
         N
 
                                                 
 
         BACKMAN SHEET METAL,                            D E C I S I O N
 
                                          
 
              Employer,
 
                                                            F I L E D
 
         and
 
                                                           JUN 29 1990
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,                           INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Donald 
 
         DeHeer, claimant, against Backman Sheet Metal, employer, and Iowa 
 
         Contractors Workers' Compensation Group, insurance carrier, for 
 
         benefits as the result of an alleged injury which occurred on 
 
         December 27, 1984.  A hearing was held in Des Moines, Iowa, on 
 
         August 29, 1989, and the case was fully submitted at the close of 
 
         the hearing.  Claimant was represented by Richard L. Ambelang. 
 
         Defendants were represented by Ann Ver Heul.  The record consists 
 
         of the testimony of Gayland McDole, coemployee; Donald DeHeer, 
 
         claimant; Virginia DeHeer, claimant's wife and joint exhibits A 
 
         through L.  The deputy ordered a transcript of the hearing.  Both 
 
         attorneys submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That no time was lost from work and no claim is made for 
 
         temporary disability benefits.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date of permanent disability benefits, 
 
         in the event such benefits are awarded, is July 11, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $378.77 per week.
 
         
 
              That the providers of medical services and supplies would 
 
         testify that their charges are reasonable and that they were for 
 
         reasonable and necessary medical services.
 
         
 
              That defendants make no claim for benefits paid to claimant 
 
         prior to hearing either as nonoccupational group health plan 
 
         benefits or as workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on December 27, 1984, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury is the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
              Whether claimant is entitled to medical benefits.
 
                                 FINDINGS OF FACT
 
                                      INJURY
 
              It is determined that claimant did sustain an injury on 
 
         December 27, 1984 which arose out of and in the course of 
 
         employment with employer.
 
         
 
              On that date, claimant, who is a sheet metal worker, "got 
 
         feet tangled up in an extension cord, fell, and lit on my right 
 
         side."  (transcript page 38).  Claimant's testimony is 
 
         corroborated by Gayland McDole, a coworker, who testified, "It 
 
         was kind of close quarters, and like I say, we were working on 
 
         stepladders, and he come down the stepladder and got tangled up 
 
         in a drop cord and tripped."  (tr. p. 34).  Claimant went to 
 
         Rahim M. Bassiri, M.D., that afternoon because of pain in his 
 
         back (tr. p. 38).  Dr. Bassiri recorded:
 
         
 
              12/27/84:  Emergency Visit - Don was working this morning 
 
              and apparently while walking at work his feet got tangled in 
 
              an extension cord and he fell on his right side.  After 
 
              falling he felt back pain in his low back, mid back and 
 
              upper back as well as his neck.
 
         
 
         (joint exhibit A)
 
         
 
              The doctor diagnosed, "Back sprain as a result of fall." 
 
         (ex. A).  Claimant only saw Dr. Bassiri this one time for this 
 
         injury. Claimant lost no time from work except an occasional 
 
         half-day or maybe a day depending on the kind of work he was 
 
         doing (tr. pp. 70-73).  Claimant denied any back problems prior 
 
         to December 27, 1984 (tr. p. 39).  After the injury working 
 
         overhead for a long period of time or lifting heavy objects 
 
         caused claimant to have catches in his back and to have muscle 
 
         spasms (tr. p. 40). Claimant also testified that when he bends 
 
         over he can't straighten up without using his hands to push 
 
         himself back up and that is why he works on his knees sometimes 
 
         in order to be close to the ground (ex. J, pp. 32 & 40; tr. p. 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         94).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant next sought medical care from B. D. Lange, D.C., on 
 
         August 19, 1985.  Dr. Lange wrote:
 
         
 
                   Opinion:  An assesment [sic] of the patient's 
 
              condition, based on examination findings, radiographs, and 
 
              complaints, exhibits reasonable medical probability 
 
              consistent with the injury that would have been evident from 
 
              the type of injury this patient has described.  Therefore, 
 
              it is my personal opinion that the patient did receive an 
 
              injury as a result of an accident in December 1984.
 
         
 
         (ex. B)
 
         
 
              Claimant saw Dr. Lange on several occasions and continued to 
 
         see him at the time of the hearing.  Claimant saw William R. 
 
         Boulden, M.D., an orthopedic surgeon, at the request of 
 
         defendants on April 22, 1986 and gave the December 27, 1984 
 
         injury as the history for his low back pain (ex. E, p. 1).  
 
         Later, on August 18, 1988, Dr. Boulden said, "At this time I feel 
 
         his symptoms are still coming from his work related injury, but I 
 
         think further studies need to be carried out."  (ex. E, p. 2).  
 
         He then wanted a CT scan (tr. p. 81; ex. E, p. 2).
 
         
 
              On November 11, 1986, Dr. Lange referred claimant to Joe F. 
 
         Fellows, M.D., an orthopedic surgeon.  Claimant only saw Dr. 
 
         Fellows on this one occasion.  Dr. Fellows did not comment on 
 
         whether claimant's back pain was or was not caused by work or 
 
         whether it was a work-related injury (ex. C; tr. p. 48; ex. T, p. 
 
         34).
 
         
 
              Dr. Lange referred claimant to Ronald C. Evans, D.C., for an 
 
         evaluation on August 26, 1987 (ex. B, p. 5).  Dr. Evans saw 
 
         claimant on September 16, 1987 and stated:
 
         
 
              On this date I did elicit a history from the patient, in 
 
              which he described that in 12/84 he fell while at work.  He 
 
              states that his feet became tangled in a drop cord that was 
 
              laying on the floor.  He landed on his right hip and 
 
              shoulder.  He had immediate low back discomfort.
 
         
 
         (ex. D)
 
         
 
              Dr. Evans concluded, "It it [sic] further my conclusion that 
 
         this sprain aggravation to the pre-existing spinal problems is as 
 
         a result of a work related slip/fall occurring in 1984.  This is 
 
         based on the patient's history and in the absence of significant 
 
         subsequent trauma."  (ex. D, p. 3).  There is no medical evidence 
 
         of prior back problems or treatment.  Claimant denied prior 
 
         problems several times in his testimony and in his deposition 
 
         (ex. J, p. 44; tr. pp. 39 & 41).
 
         
 
              Therefore, based on claimant's testimony, the testimony of 
 
         eye witness McDole, and the testimony of Dr. Bassiri, Dr. 
 
         Boulden, Dr. Lange and Dr. Evans, it is determined that claimant 
 
         sustained an injury on December 27, 1984, which arose out of and 
 
         in the course of employment with employer.  Defendants, who 
 
         called no witnesses nor introduced any separate exhibits, offered 
 
         no opposing evidence of any kind.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                      CAUSAL CONNECTION PERMANENT DISABILITY
 
         
 
              Even though claimant had not experienced any pain or 
 
         difficulties with his back prior to this injury, nevertheless, 
 
         Dr. Bassiri's x-rays demonstrated some degenerative changes at 
 
         the cervical, dorsal and lumbar areas (ex. A, p. 2).  On November 
 
         11, 1986, Dr. Fellows stated, "Comparison x-rays taken at the 
 
         Internal Medicine Clinic on 12/27/84 show there has been slight 
 
         progression of the anterior spurring between L3 and L4 in that 
 
         two year period."  (ex. C, p. 1).
 
         
 
              Dr. Lange compared his x-rays taken on August 19, 1985, with 
 
         those taken by Dr. Bassiri on December 27, 1984, and they showed 
 
         that claimant's preexisting pathologies were contributing factors 
 
         to the patient's condition (ex. B, p. 2).  On August 26, 1987, 
 
         Dr. Lange said:
 
         
 
              It is also my opinion that the patient is subject to future 
 
              pain and suffering as a result of his low back injury due to 
 
              the initiation of symptomatology, stemming from past 
 
              traumatic osteoarthritis.
 
         
 
              Therefore, as a result of his injuries, the patient may be 
 
              subject to future exacerbations of low back pain, especially 
 
              with regard to his occupational duties.
 
         
 
              His need for future care for his chronic condition will be 
 
              somewhat dictated by occupational stresses, and should the 
 
              patient remain in his current occupation, he will require 
 
              frequent treatment not only to relieve symptoms, but to 
 
              avoid progressive debilitation.  It is possible that at some 
 
              time in the future, lumbar spinal fusion may need to be 
 
              considered.
 
         
 
              It is the recommendation of this office that the patient 
 
              referred to Dr. Ronald C. Evans, Board Certified Orthopedist 
 
              in West Des Moines, Iowa, for the purpose of examination and 
 
              permanent impairment rating.
 
         
 
         (ex. B, pp. 4 & 5)
 
         
 
              On October 6. 1987, Dr. Evans stated:
 
         
 
              It is my conclusion that the patient presents with a chronic 
 
              sprain of the lumbar spine.  The sprain has had most effect 
 
              at the L3-L4 intervertebral disc space, providing a 
 
              permanent deterioration or aggravation to a pre-existing 
 
              spondylitic disc space.  Serial radiographs demonstrate a 
 
              marked increase in the spondylosis manifestation from the 
 
              1984 films through the 1985 films.
 
         
 
              It it [sic] further my conclusion that this sprain 
 
              aggravation to the pre-existing spinal problems is as a 
 
              result of a work related slip/fall occurring in 1984.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (ex. D, 3)
 
         
 
              As previously shown, Dr. Boulden saw claimant on April 22, 
 
         1986 and again on August 18, 1988 and at the time of the later 
 
         visit he stated, "At this time I feel his symptoms are still 
 
         coming from his work related injury..."  (ex. E, p. 2).  On July 
 
         10, 1989, Dr. Boulden assessed a permanent impairment rating (ex. 
 
         E, pp. 7 & 10).
 
         
 
              Therefore, in summary, Dr. Bassiri and Dr. Fellows did not 
 
         comment on whether the injury was or was not the cause of 
 
         permanent impairment.  Dr. Lange, Dr. Evans and Dr. Boulden found 
 
         that the injury was the cause of permanent impairment.
 
         
 
              Defendants called no witnesses nor introduced any separate 
 
         exhibits which controvert the evidence of causal connection 
 
         provided by Dr. Lange, Dr. Evans and Dr. Boulden.  Rather, Dr. 
 
         Boulden was retained by defendants and Dr. Boulden found that the 
 
         injury was the cause of permanent impairment.
 
         
 
              The fact that Dr. Boulden unfortunately used the term 
 
         "disability" instead of impairment is of no consequence.  It has 
 
         been pointed that even though there is a distinction, Guides to 
 
         the Evaluation of Permanent Impairment, third edition, chapter 1, 
 
         the terms are often used interchangeably.  Lawyer and Higgs, Iowa 
 
         Workers' Compensation--Law and Practice, section 13-5, page 116. 
 
         Both doctors and lawyers inadvertently use the terms 
 
         interchangeably as well as others in the workers' compensation 
 
         area.  The supreme court did the same thing in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  The court 
 
         used the term disability all though it was obvious that the court 
 
         was discussing impairment ratings.  See also Beyer v. Iowa Beef 
 
         Processors, Inc., file number 759698, filed December 3, 1987. 
 
         Thus, Dr. Boulden's use of the term "disability" in making his 
 
         impairment rating is interpreted to mean impairment.
 
         
 
                         ENTITLEMENT-PERMANENT DISABILITY
 
         
 
              The parties stipulated that the type of permanent 
 
         disability, if the injury is found to be a cause of permanent 
 
         disability, is industrial disability to the body as a whole.
 
         
 
              Dr. Bassiri and Dr. Fellows do not comment on causal 
 
         connection or impairment, apparently because they were not asked 
 
         to do so and because these were not appropriate questions at the 
 
         time of their treatment.
 
         
 
              Dr. Lange apparently did not feel qualified to make an 
 
         impairment rating because he referred claimant to Dr. Evans, who 
 
         he referred to as a Board Certified Orthopedist (ex. B).
 
         
 
              On February 24, 1988, Dr. Evans stated:
 
         
 
              It continues my conclusion that the patient presents with a 
 
              chronic lumbar sprain and that.this sprain has had its 
 
              greatest effect in the L3-L4 intervertebral disc space 
 
              providing a permanent deterioration or aggravation to the 
 
              pre-existing spondylitic disc space.  This spondylosis is 
 
              now manifestated with intermittent left leg radiculopathy, 
 
              however its greatest manifestation is the deficit in the 
 
              patient's overall dorsolumbar range of motion and low back 
 
              pain.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (ex. D, p. 5)
 
         
 
              Dr. Evans said that his rating was based upon range of 
 
         motion deficit rather than nebulous muscle or nerve involvements 
 
         at that time.  He stated that he used the Guides to the 
 
         Evaluation of Permanent Impairment, AMA, 1984.  Dr. Evans 
 
         concluded, "Therefore, this rating is for permanent residua and 
 
         the final impairment rating for this patient is 15% wp."  (ex. D, 
 
         p. 5).
 
         
 
              Dr. Boulden prescribed a work hardening program for claimant 
 
         with which claimant cooperated fully (ex. F; tr. pp. 83 & 84).  
 
         On July 10, 1989, Dr. Boulden stated:
 
         
 
              The patient has made great strides in his work hardening 
 
              program and has ended that officially tomorrow.  However, in 
 
              the testing, it does not look like he can return back to his 
 
              exact job.  Therefore, we've sent a letter to the company 
 
              for modification in his work.  If that cannot be carried 
 
              out, then he needs to be placed in vocational 
 
              rehabilitation.
 
         
 
              At this point, I will end his healing period effective July 
 
              11, 1989.  At this point, he has a 10% disability of his 
 
              back based on the segmental instability of L3/L4.
 
         
 
         (ex. E, pp. 7 & 10)
 
         
 
              In summary, Dr. Evans assessed a 15 percent permanent 
 
         impairment to the body as a whole and Dr. Boulden determined that 
 
         claimant sustained a 10 percent impairment, but due to the 
 
         limitations determined after the second and final phase of the 
 
         work hardening program, he did not feel that claimant could 
 
         return to his former employment without job modifications.
 
         
 
              Thomas W. Bower, L.P.T., reported on July 10, 1989, the same 
 
         day as Dr. Boulden's final report, "Presently, he would be 
 
         classified into a medium category of work as defined as 
 
         infrequently lifting 50 pounds and frequently lifting 25 pounds. 
 
         There would also be frequent carrying of objects weighing 25 
 
         pounds.  In addition, we certainly would not advocate any 
 
         repetitious bending, twisting or stooping as well."  (ex. F, p. 
 
         6; tr. p. 60).  Dr. Boulden stated that if these job 
 
         modifications cannot be met, then claimant needs to be placed in 
 
         vocational rehabilitation (ex. E, pp. 7 & 10).  The hearing was 
 
         held only approximately one month after Dr. Boulden's final 
 
         rating and, no efforts at vocational rehabilitation had been made 
 
         at that time by either party.
 
         
 
              Claimant testified at his deposition that the job of a sheet 
 
         metal worker required quite a bit of heavy lifting (ex. J, p. 4). 
 
         He stated his tool box would weigh approximately 70 pounds (tr. 
 
         p. 40).  McDole testified that a sheet metal workers' tool box 
 
         would weigh between 75 or 80 pounds and 100 pounds.  The typical 
 
         weight of the.sheet metal itself that you most frequently lift 
 
         would be between 50 or 60 pounds and 100 pounds (tr. pp. 33 & 
 
         34).  Claimant testified that his tool box would weigh 
 
         approximately 70 pounds (tr. p. 40).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Boulden told claimant on April 22, 1986 to stop abusing 
 
         his back (ex. E, p. 1).  Claimant testified that it was not 
 
         possible to work in the trades and not abuse your back (ex. J, p. 
 
         36).  Claimant testified that sheet metal employers did not 
 
         provide light duty jobs.  He would be required to perform 100 
 
         pound jobs as well as 25 pound jobs.  "They hire a complete 
 
         person."  (tr. pp. 94 & 95).  Claimant interpreted Dr. Boulden's 
 
         remark to mean that he was to exercise caution when lifting.  The 
 
         doctor never told him about changing trades.  This is the first 
 
         time that a doctor has ever imposed a weight lifting restriction 
 
         on claimant (tr. p. 97).  Claimant had worked his entire adult 
 
         life as a sheet metal worker for 29 years.  The earliest 
 
         retirement age is age 55.  Claimant testified that if he took a 
 
         nonunion job he would lose his retirement benefits (tr. pp. 100 & 
 
         101).
 
         
 
              Claimant testified that after the injury he continued to 
 
         work until the employer closed his business in June of 1985.  
 
         Claimant acknowledged that in the past he has performed office 
 
         work and supervisory work in the sheet metal trade.  After the 
 
         injury he continued working for employer as a superintendent in 
 
         the field until the company went out of business in June 1985 
 
         (ex. J, pp. 13 & 14; t. p. 72).  Claimant tried to return to 
 
         sheet metal work after Dr. Boulden imposed his rating.  One 
 
         employer told him, "...he said that I knew as well as he knew 
 
         there was no such thing as a modified work program in the sheet 
 
         metal trade.  You either do it all or you don't work."  Claimant 
 
         was told that there was no job for him at the time of this 
 
         application (tr. pp. 61, 62, 68, 69, 94, 95 & 97).  When claimant 
 
         was asked if he was willing to go through vocational 
 
         rehabilitation he replied, "I would.  I can't sit on my rear., 
 
         I'm not used to that."  (tr. p. 61).
 
         
 
              Claimant acknowledged that he twisted his back at work while 
 
         working for another employer in October of 1987.  He was treated 
 
         by Dr. Lange and was off work for six days, four week days and 
 
         two weekend days.  Claimant testified and there is no medical 
 
         evidence that this episode caused claimant any further 
 
         difficulties (tr. pp. 45, 54, 71, 74 & 75; ex. B; ex. J, pp. 
 
         45-48).
 
         
 
              Claimant was also involved in a very serious automobile 
 
         accident in June 1988, was hospitalized from Friday night until 
 
         the following Tuesday morning.  His wife had two cracked 
 
         vertebrae.  Claimant's right arm was fractured in four places, he 
 
         received 21 stitches to his eye, eight stitches in his chin, 
 
         additional stitches in his knee.  He suffered three broken ribs 
 
         and lost considerable time from work (ex. J, p. 42; tr. pp. 62, 
 
         65 & 75-81).  Claimant attempted to return to sheet metal work 
 
         again, but there was no work for anyone in the sheet metal trade 
 
         at that time (tr. p. 80).
 
         
 
              Claimant believed that he could do supervisory work, but he 
 
         testified several times that employers do not hire 
 
         superintendents off the street, but rather you have to take a job 
 
         and start at the bottom and work up (tr. pp. 86-88).  He said 
 
         this would be difficult to do because of his weight lifting 
 
         restrictions and his restriction against no bending, stooping and 
 
         twisting (tr. pp. 89 & 90).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that his business agent knows about his 
 
         restrictions, but stated there would be no jobs referred to him 
 
         within his restrictions because there are no sheet metal jobs 
 
         within those restrictions (tr. pp. 91 & 92).  He testified that 
 
         if he wanted to work as a sheet metal worker, "I have to 
 
         perform." (tr. p. 94).  You are expected to do 100 pound jobs as 
 
         well as 25 pound jobs.  They hire a complete person.  Claimant 
 
         testified that the only employer where he had worked after 
 
         employer closed down had refused to take him back (tr. p. 97).
 
         
 
              Claimant stated that he intended to go to Area XI and 
 
         investigate getting into computers or something like this (tr. p. 
 
         99).
 
         
 
              Even though claimant was able to work after the injury, 
 
         except for layoffs, the four days off after he twisted his back 
 
         in October 1987 and the time off for the automobile accident from 
 
         June 1988 to March 1989, nevertheless, he felt that his condition 
 
         grew progressively worse (ex. J, pp. 39 & 41; tr. p. 91).  This 
 
         testimony is verified by Dr. Lange, Dr. Evans and Dr. Boulden 
 
         (exs. B, D, and E).  Claimant denied and there was no evidence 
 
         that the automobile accident affected his low back in any way.
 
         
 
              Claimant was 45 years old at the time of the injury and 50 
 
         years old at the time of the hearing.  His disability is worse 
 
         than it is for a younger or older worker because claimant was at 
 
         the peak of his earnings career.  Claimant.was earning $35,000 a 
 
         year at the time of the injury.  His workers' compensation rate 
 
         was agreed to be $378.77 per week.  McCoy v. Donaldson Company, 
 
         Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 
 
         1989); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 426 (1981); Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34 
 
         (Appeal Decision 1979).
 
         
 
              Claimant has a limited formal education.  He only completed 
 
         the eleventh grade in high school, but did obtain a G.E.D. in the 
 
         navy.  He also completed class A engineman school in the navy 
 
         (ex. K, pp. 10 & 11).  He also completed apprentice sheet metal 
 
         school by attending classes on Saturday and on-the-job training 
 
         five days a week for four years from 1960 to 1964 (tr. p. 38).  
 
         Based on Mr. Bower's and Dr. Boulden's final report, claimant is 
 
         foreclosed from most jobs in the sheet metal trade because of his 
 
         weight limitations and stooping, bending and twisting limitations 
 
         (ex. F, p. 6).  Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
         Industrial Commissioner Report 282 (1984); Michael v. Harrison 
 
         County, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 218, 220 (Appeal Decision January 30, 1979).  This 
 
         is strongly corroborated by claimant's testimony and his 
 
         experience trying to get a job as a sheet metal worker in 1989.  
 
         Claimant's chances of being hired off the street as a 
 
         superintendent or for office work are extremely limited.  
 
         Defendants introduced no opposing evidence professional or 
 
         otherwise.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Boulden recommended vocational rehabilitation (ex. E, 
 
         pp. 7 & 10).  Claimant expressed a willingness to study and train 
 
         for a different type of employment.  His adaptability to various 
 
         jobs over his entire employment career makes his chances of 
 
         success quite reasonable.  However, vocational rehabilitation 
 
         will be quite expensive for claimant at this time and the 
 
         possibility of success is only speculative at this time.  
 
         Claimant's ability for retraining is a consideration in the 
 
         determination of industrial disability.  Conrad v. Marquette 
 
         School, Inc., IV Iowa Industrial Commissioner Report 74, 78 
 
         (1984).  Therefore, based on the foregoing discussion, all of the 
 
         evidence in the case and all of the factors used to determined 
 
         industrial disability, it is determined that claimant's loss of 
 
         earning capacity is substantial.
 
         
 
              Wherefore, it is determined that based upon claimant's age, 
 
         education, the fact he is practically foreclosed from continuing 
 
         sheet metal work, that he is 50 years old and his earliest 
 
         retirement age is at age 55, and that vocational rehabilitation 
 
         will be an expensive matter, it is determined that claimant has 
 
         sustained an industrial disability of 25 percent to the body as a 
 
         whole and that claimant is entitled to 125 weeks of permanent 
 
         partial disability benefits.
 
         
 
                                 MEDICAL BENEFITS
 
         
 
              At the time of his deposition, claimant testified that the 
 
         only thing he had claimed at that time was the payment of his 
 
         medical bills.  Claimant proved that defendants authorized him 
 
         to see Dr. Lange.  A letter dated May 9, 1986, from the 
 
         representative from the insurance carrier stated, "We will 
 
         authorized payment for periodic visits for Chiropractic 
 
         treatment from Dr. Lange as you see fit for your pain.  However, 
 
         please be advised that we are unable to approve payment for 
 
         these treatments on an unlimited basis, and will be obtaining 
 
         periodic reports from Dr. Lange." (ex. L).  There is no evidence 
 
         that this authority was ever withdrawn by defendants nor why it 
 
         was withdrawn by defendants, but claimant testified that 
 
         defendants did not pay any of the charges of Dr. Lange which 
 
         total $985.94 (ex. B, p. 6), nor did defendants reimburse 
 
         claimant for $31.06 which he paid to Dr. Lange nor did 
 
         defendants reimburse claimant for the $50 which he paid to Dr. 
 
         Fellows.  Claimant was sent to Dr. Fellows by Dr. Lange. 
 
         Defendants did not reimburse claimant $335.50 which he paid to 
 
         Dr. Evans.  Claimant was referred to Dr. Evans by Dr. Lange. 
 
         Defendants gave absolutely no explanation for not paying these 
 
         bills even though defendants' counsel stated that the main issue 
 
         in this case was industrial disability.(tr. p. 31).  Claimant 
 
         also submitted an itemized and detailed statement for mileage 
 
         which was not opposed by defendants (ex.  H).  Wherefore, it is 
 
         determined that claimant is entitled to be reimbursed $50 for 
 
         the treatment by Dr. Fellows, $335.50 for the treatment rendered 
 
         by Dr. Evans, $31.06 which he paid to Dr. Lange and $1040.85 for 
 
         medical mileage.  Claimant is further entitled to have 
 
         defendants pay the balance due to Dr. Lange in the amount of 
 
         $985.94.  It is determined that all of these expenses were for 
 
         reasonable medical treatment and medical mileage for this 
 
         injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the evidence presented and the 
 
         foregoing and following principles of law, the following 
 
         conclusions of law are made:
 
         
 
              That claimant sustained an injury on December 27, 1984, 
 
         which arose out of and in the course of employment with employer.  
 
         Iowa Code section 85.3(1).  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).
 
         
 
              That the injury was the cause of permanent impairment and 
 
         disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 
 
         (1945); Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
         73 N.W.2d 732 (1955); Bradshaw v. Iowa Methodist Hospital, 251 
 
         Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              That claimant sustained an industrial disability of 25 
 
         percent to the body as a whole and is entitled to 125 weeks of 
 
         permanent partial disability benefits.  Olson v. Goodyear Service 
 
         Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada 
 
         Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Peterson v. 
 
         Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial 
 
         Commissioner Decisions 654, 658 (Appeal Decision February 28, 
 
         1985); Christensen v. Hagen, Inc., vol 1, no. 3, State of Iowa 
 
         Industrial Commissioner Decisions 529 (Appeal Decision March 26, 
 
         1985); Iowa Administrative Procedure Act 17A.14(5).
 
         
 
              That claimant is entitled to medical benefits of $50 for Dr. 
 
         Fellows, $335.50 for Dr. Evans, $31.06 and $985 for Dr. Lange and 
 
         $1,050.85 for medical mileage.  Iowa Code section 85.27.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of three hundred seventy-eight and 77/100 dollars ($378.77) per 
 
         week in the total amount of forty-seven thousand three hundred 
 
         forty-six and 25/100 dollars ($47,346.25) commencing on July 11, 
 
         1989 as stipulated to by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants claim no credit for any payments of any kind 
 
         paid to claimant prior to hearing.
 
         
 
              That defendants pay to claimant one thousand four hundred 
 
         sixty-seven and 41/100 dollars ($1,467.41) as reimbursement for 
 
         the medical expenses claimant paid to Dr. Fellows, Dr. Evans and 
 
         Dr. Lange and for medical mileage.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants pay to claimant or Dr. Lange nine hundred 
 
         eighty-five and 94/100 dollars ($985.94).
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         3433.1.
 
         
 
              Signed and filed this 29th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Richard L. Ambelang
 
         Attorney at Law
 
         1920 Court Ave.
 
         Route 5, Box 3
 
         Chariton, Iowa  50049
 
         
 
         Ms. Ann M. Ver Heul
 
         Mr. John A. Templer, Jr.
 
         Attorneys at Law
 
         3737 Woodland Ste 437
 
         West Des Moines, Iowa  50265
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51106; 51401; 51402.10; 51402.30; 
 
                                       51402.40; 51402.60; 51801; 51803; 
 
                                       52501; 52700
 
                                       Filed June 29, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD DEHEER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 837605
 
         BACKMAN SHEET METAL,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51401; 51402.10; 51402.30; 51402.40; 51402.60
 
         
 
              Claimant proved injury arising out of and in the course of 
 
         employment when he got his feet tangled up in a cord and fell to 
 
         the ground and strained his back which got progressively worse 
 
         rather than better.  Two doctors established causal connection. 
 
         Defendants offered no opposing evidence.
 
         
 
         51801
 
         
 
              No temporary disability was claimed because claimant 
 
         asserted he never lost more than half a day or a day sporadically 
 
         from work after the fall.
 
         
 
         51803
 
         
 
              Claimant awarded 25 percent industrial disability. 
 
         Chiropractor awarded 15 percent permanent impairment.  Orthopedic 
 
         surgeon awarded 10 percent permanent impairment.  Claimant is 
 
         foreclosed from sheet metal work that he had done for the last 29 
 
         years unless modifications and accommodations were made and none 
 
         were expected to be made.  He did have some office experience and 
 
         some supervisory experience.  Claimant restricted from lifting 50 
 
         pounds frequently and repetitive bending, twisting and stooping. 
 
         Claimant age 45, eleventh grade education with a G.E.D.  Claimant 
 
         was adaptable and willing to be retrained and had an excellent 
 
         employment record.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         52501; 52700
 
         
 
              Claimant awarded medical benefits.  Employer had refused to 
 
         pay any benefits, even the doctor they had authorized in writing.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CICELY BROWN,
 
        
 
            Claimant,
 
                                                 File No. 837608
 
        
 
        NISSEN CORPORATION,                        A P P E A L
 
        
 
            Employer,                           D E C I S I O N
 
        
 
        and
 
                                                    F I L E D
 
        NATIONAL UNION FIRE INSURANCE
 
        COMPANY,                                   NOV 30 1989
 
        
 
            Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
            Defendants.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Defendants appeal from an arbitration decision awarding 
 
             claimant permanent total disability benefits.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing and exhibits 1 through 18. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
             Defendants state the issues on appeal are:
 
        
 
             I. Did the deputy err in finding an injury in July 1985 
 
                 based on cumulative trauma when the medical evidence showed 
 
                 at most a preexisting disc disease and August 1984 disc 
 
                 protrusion, but not a series of minor traumas?
 
             
 
             II. Did the deputy err in failing to apportion any 
 
             disability caused by degenerative disc disease or any August 
 
             1984 disc protrusion for which no claim was made in this 
 
             proceeding?
 
             
 
             III. Did the deputy err in considering claimant's emotional 
 
             problems when there was no evidence causally relating 
 
             emotional problems to any work injury or setting forth their 
 
             nature, extent or permanency?
 
        
 
             IV. Did the deputy err in finding the odd lot doctrine 
 
                 applicable when claimant had not made a bona fide effort to 
 
                 find work and defendants' vocational expert found her 
 
                 competitively employable?
 
             
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision dated June 29, 1988, adequately and 
 
             accurately reflects the pertinent evidence and it will not be 
 
             reiterated herein.
 
        
 
                                 APPLICABLE LAW
 

 
        
 
 
 
 
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that she received an injury on July 11, 1985, 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).
 
        
 
            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 body, or otherwise damages or injures a part or all of 
 
             the body.
 
             
 
             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, 760-761 
 
             (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).
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of July 16, 1985, is causally 
 
        related to the disability on which she now bases her claim. 
 
        Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
        Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
        possibility is insufficient; a probability is necessary. Burt v. 
 
        John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
        (1955). The question of causal connection is essentially within 
 
        the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 

 
        
 
 
 
 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact . Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            If 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, 125 N.W.2d 251 (1963). 
 
        Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
             A finding of impairment to the body as a whole found by a 
 
             medical evaluator does not equate to industrial disability. This 
 
             is so as impairment and disability are not synonymous. Degree of 
 
             industrial disability can in fact be much different than the 
 
             degree of impairment because in the first instance reference is 
 
             to loss of earning capacity and in the latter to anatomical or 
 
             functional abnormality or loss. Although loss of function is to 
 
             be considered and disability can rarely be found without it, it 
 
             is not so that a degree of industrial disability is 
 
             proportionally related to a degree of impairment of bodily 
 
             function.
 
        
 
            Factors to be considered in determining industrial 
 
        disability include the employee's medical condition prior to the 
 
        injury, immediately after the injury, and presently; the situs of 
 
        the injury, its severity and the length of healing period; the 
 
        work experience of the employee prior to the injury, after the 
 
        injury and potential for rehabilitation; the employee's 
 
        qualifications intellectually, emotionally and physically; 
 
        earnings prior and subsequent to the injury; age; education; 
 
        motivation; functional impairment as a result of the injury; and 
 
        inability because of the injury to engage in employment for which 
 
        the employee is fitted. Loss of earnings caused by a job transfer 
 
        for reasons related to the injury is also relevant. These are 
 
        matters which the finder of fact considers collectively in 
 
        arriving at the determination of the degree of industrial 
 
        disability.
 
        
 
            There are no weighting guidelines that indicate how each of 
 
        the factors are to be considered. There are no guidelines which 
 
        give, for example, age a weighted value of ten percent of the 
 
        total value, education a value of fifteen percent of total, 
 
        motivation - five percent; work experience - thirty ; percent, 
 
        etc. Neither does a rating of functional impairment directly 
 
        correlate to a degree of industrial disability to the body as a 
 
        whole. In other words, there are no formulae which can be 
 
        applied and then added up to determine the degree of industrial 
 
        disability. It therefore becomes necessary for the deputy or 
 

 
        
 
 
 
 
 
        commissioner to draw upon prior experience, general and 
 
        specialized knowledge to make the finding with regard to degree 
 
        of industrial disability. See Peterson v. Truck Haven Cafe, 
 
        Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, 
 
        Inc., (Appeal Decision, March 26, 1985).
 
        
 
            A worker is totally disabled if the only services the worker 
 
        can perform are so limited in quality, dependability, or 
 
        quantity, that a reasonable, stable market for them does not 
 
        exist. When a combination of industrial disability factors 
 
        precludes a worker from obtaining regular employment to earn a 
 
        living, a worker with only a partial functional disability has a 
 
        total industrial disability. Guyton v. Irving Jensen Company, 
 
        373 N.W.2d 101 (Iowa 1985).
 
        
 
             Apportionment is limited to those situations where a prior 
 
             injury or illness independently produces some ascertainable 
 
             portion of the ultimate industrial disability which exists 
 
             following the employment-related aggravation. Varied 
 
             Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
        
 
                                      ANALYSIS
 
        
 
             The first matter to be resolved is whether claimant suffered 
 
             a cumulative or a traumatic injury. Claimant had a degenerative 
 
             condition which progressed while she was employed by defendant 
 
             employer. She developed a herniated disc during the course of 
 
             her employment. The opinions of John Robb, M.D., who was the 
 
             treating physician, will be given the most weight. The opinion 
 
             of Martin F. Roach, M.D., is not persuasive and is given little 
 
             weight. Dr. Roach was merely an evaluating physician who saw 
 
             claimant more than a year after her alleged work injury. There 
 
             was also an apparent inconsistency between recommending activity 
 
             restrictions and a finding of no permanent impairment by Dr. 
 
             Roach. Claimant testified on the day the injury occurred, July 
 
             11, 1985 (hereinafter the July 1985 injury), she was performing a 
 
             task that involved lifting. She sought medical care. Her 
 
             activity restrictions were greater after the July 1985 injury 
 
             than before. She has been in pain and has not returned to work 
 
             since shortly after the July 1985 injury. While claimant's 
 
             condition may have deteriorated through the course of her 
 
             employment, her current disability did not manifest itself until 
 
             the July 1985 episode. Claimant had an impairment from the injury 
 
             in August 1984 and that impairment may not have significantly 
 
             increased after that but her disability did not occur until she 
 
             suffered the exacerbation of the condition in the July 1985 
 
             injury. Defendants' reliance upon the decision in Babe v. 
 
             Greyhound Lines, Inc. Nos. 706132 and 790714 (Appeal Decision 
 
             February 29, 1988) is misplaced. In Babe, claimant's condition 
 
             was virtually the same from the first of a series of traumatic 
 
             injuries until the hearing. In the instant case, claimant's 
 
             condition changed significantly enough after the July 1985 injury 
 
             that she was no longer able to perform her job. Claimant suffered 
 
             a traumatic injury on July 11, 1985, while working for defendant 
 
             employer that caused her disability.
 
        
 
            The second matter to be resolved is whether claimant's 
 
        disability should be apportioned between a prior injury (August 
 
        1984) or degenerative disc disease and her July 1985 injury. It 
 
        is well established that an employer takes an employee as is. 
 
        The facts in this case are quite clear. Prior to the work injury 
 
        in July 1985 claimant had suffered little if any loss of earning 
 
        capacity. It should be remembered that the injury in August 1984 
 
        was also with defendant employer. Prior to the injury in July 
 
        1985 claimant was working full time and was in fact working 
 
        overtime. Testimony by defendants' witness, claimant's foreman, 
 

 
        
 
 
 
 
 
        indicates that claimant's work performance was always consistent 
 
        and was above the standards set by the employer. There was no 
 
        need to modify the job in order for claimant to perform it. 
 
        Subsequent to the July 1985 injury claimant has had pain which 
 
        has prevented her from working. The pain is in part responsible 
 
        for her inability to complete vocational retraining. Dr. Robb 
 
        has placed activity restrictions on claimant that are much more 
 
        severe than they were before the injury. Dr. Robb has limited 
 
        claimant to working four to six hours per day. All of claimant's 
 
        loss of earning capacity is a result of the July 1985 injury.
 
        
 
             The next matter to be resolved is whether claimant's 
 
             emotional problems are related to her work injury in July 1985. 
 
             There is evidence that claimant suffered from emotional problems 
 
             prior to July 1985. Claimant began seeing a psychiatrist only 
 
             one week before the hearing. Claimant concedes in her appeal 
 
             brief that because the referral took place shortly before the 
 
             hearing "the full extent of these matters could not be 
 
             developed." The relationship between the emotional problems and 
 
             the work injury must be a probability and not merely a 
 
             possibility. Most importantly the record in this matter is 
 
             devoid of any medical evidence that claimant's emotional problems 
 
             are causually connected to the July 1985 work injury. Claimant 
 
             has not proved that her emotional problems are causally connected 
 
             to the July 1985 work injury.
 
        
 
            The last matter to be resolved is the extent of claimant's 
 
        disability. Defendants assert that the deputy erred in 
 
        determining that the claimant was permanently totally disabled 
 
        and finding that she was an odd-lot employee. The first question 
 
        that must be decided is if claimant has made a prima facie 
 
        showing that she is unemployable. The test under Guyton v. 
 
        Irving Jensen Co., 373 N.W.2d 101, (Iowa 1985) is whether 
 
        claimant is unemployable not whether claimant can earn enough 
 
        income to be self supporting. The court at 373 N.W.2d 106 held: 
 
        "We therefore hold that when a worker makes a prima facie case of 
 
        total disability by producing substantial evidence that the 
 
        worker is not employable in the competitive labor market the 
 
        burden to produce evidence of suitable employment shifts to the 
 
        employer." The test used by the deputy, namely whether claimant 
 
        has the ability to earn sufficient income to be self-supporting, 
 
        is not consistent with the facts or the holding of Guyton. Use 
 
        of the test used by the deputy could lead to absurd results. For 
 
        example, a part-time employee who worked four hours per day at 
 
        minimum wage and was injured and could after the injury be 
 
        employed for the same four hours per day at the same minimum wage 
 
        would be permanently totally disabled under the test used by the 
 
        deputy. Under this hypothetical the injured worker would be 
 
        permanently and totally disabled even though there might not be 
 
        any loss of earnings nor earning capacity. The correct test is 
 
        whether claimant is employable in a competitive labor market.
 
        
 
             Claimant has attempted only one job, that of a dish washer, 
 
             which presumably involved standing for an extended period of 
 
             time. Admirably, she has attempted retraining and vocational 
 
             rehabilitation. She discontinued the attempt at retraining 
 
             because she was unable to concentrate, function or sleep due to 
 
             pain in her lower back and down her leg. Her second attempt at 
 
             vocational rehabilitation initially involved fewer hours per day 
 
             and fewer days per week. When she increased her attendance time, 
 
             she discontinued attendance approximately one week before the 
 
             hearing. Her reason for discontinuing this attempt appears to be 
 
             due in part, to emotional problems. In prior agency decisions 
 
             where the claimants have demonstrated a bona fide search for work 
 
             by seeking retraining, the claimants have clearly established a 
 
             bona fide effort at retraining. Claimant has not clearly shown 
 

 
        
 
 
 
 
 
             that she has made a bona fide effort at retraining. Under the 
 
             facts presented in this case, claimant has not made a bona fide 
 
             attempt to seek vocational rehabilitation. Claimant has not made 
 
             a prima facie showing that she is unemployable.
 
        
 
            Claimant was born June 12, 1937 and was 48 years old at the 
 
        time of the July 1985 injury. She was paid $8.80 per hour prior 
 
        to her injury. She has a fifteen percent impairment rating due 
 
        to an injury of the lower back. Dr. Robb has limited claimant to 
 
        four to eight hours of work per day. She has activity 
 
        restrictions which prohibit extended periods of standing, 
 
        sitting, or driving. She has a high school education and 
 
        aptitudes for numerical and clerical skills and has good manual 
 
        dexterity. When all factors are considered claimant has suffered 
 
        a 70 percent loss of earning capacity.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant was born June 12, 1937 and was forty-eight 
 
             years old in July 1985.
 
        
 
            2. Claimant was injured at work August 17, 1984 at 
 
        defendant employer.
 
        
 
            3. After medical treatment claimant returned to work 
 
        following the August 17, 1984, injury and did the same job she 
 
        was doing prior to the work injury.
 
        
 
            4. Claimant was able to work overtime following the August 
 
        17, 1984 incident.
 
        
 
            5. On or about July 11, 1985, claimant was working for 
 
        defendant employer when she lifted a volleyball upright and felt 
 
        pain in her lower back.
 
        
 
             6. Following the July 11, 1985, incident claimant attempted 
 
             to continue doing her job and worked for two days. Eventually 
 
             she was unable to continue doing her job and has not worked after 
 
             July 15, 1985.
 
        
 
            7. The July 11, 1985 incident was a material aggravation of 
 
        claimant's preexisting condition.
 
        
 
            8. At the time of the July 1985 injury claimant was earning 
 
        $8.80 per hour.
 
        
 
            9. Claimant has a high school education and an aptitude for 
 
        clerical work.
 
        
 
            10. Claimant's one attempt at employment was unsuccessful, 
 
        the job attempted involved prolonged standing.
 
        
 
            11. Claimant has activity restrictions which prohibit 
 
        prolonged sitting, standing, driving or lifting of weights over 
 
        40 pounds on an occasional basis and 20 pounds on a repetitive 
 
        basis.
 
        
 
            12. Claimant has sought vocational rehabilitation but has 
 
        been unsuccessful due to her physical and mental condition.
 
        
 
            13. Claimant has an impairment of fifteen percent of the 
 
        whole person.
 
        
 
            14. Claimant is not unemployable.
 
        
 
            15. Claimant has a work history of department store sales 
 

 
        
 
 
 
 
 
        clerk, order clerk, messenger, youth group program advisor, 
 
        production line assembler, fast food restaurant manager, dance 
 
        instructor and aerobics instructor.
 
        
 
            16. Claimant has suffered a loss of earning capacity of 70 
 
        percent as a result of the work injury on July 11, 1985.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Claimant has established she sustained an injury on July 11, 
 
             1985.
 
        
 
            Claimant has establish that the work injury sustained on 
 
        July 11, 1984, is the cause of an industrial disability of 70 
 
        percent.
 
        
 
            Claimant has not established that she is unemployable.
 
        
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
        modified.
 
        
 
                                      ORDER
 
             
 
             THEREFORE, it is ordered:
 
             
 
             That defendants pay claimant healing period benefits from 
 
             July 16, 1985 through April 23, 1986 at a rate of two hundred 
 
             sixty-nine and 03/100 dollars ($269.03).
 
             
 
             That defendants pay claimant three hundred fifty (350) weeks 
 
             of permanent partial disability benefits at the rate of two 
 
             hundred sixty-nine and 03/100 dollars ($269.03) per week 
 
             commencing April 24, 1986.
 
             
 
             That defendants receive credit for payments previously made 
 
             and for the excess payment based upon use of an incorrect rate.
 
        
 
            That all past due accrued amounts be paid in a lump sum 
 
        together with interest pursuant to Iowa Code section 85.30.
 
        
 
            That defendants pay the costs of this proceeding including 
 
        the costs of transcription of the arbitration hearing and 
 
        including the following:
 
        
 
                       Dr. Robb report                $100.00
 
                       Dr. Robb deposition transcript  173.00
 
                       Dr. Robb expert witness fee
 
                           for deposition             150.00
 
                       Certified mailing fees            3.34
 
                       Total                          $426.34
 
                       
 
             That defendants pay claimant's mileage expenses under Iowa 
 
             Code section 85.27 in the total amount of four hundred twenty-six 
 
             and 00/100 ($426.00).
 
        
 
            That defendants file claim activity reports pursuant to 
 
        Division of Industrial Services Rule 343-3.1(2).
 
        
 
            Signed and filed this 30th day of November, 1989.
 
        
 
        
 
        
 
        
 
                                           DAVID E. LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
        
 

 
        
 
 
 
 
 
        Copies To:
 
        
 
        Mr. Thomas M. Wertz
 
        Attorney at Law
 
        4089 21ST Ave. SW
 
        Suite 114
 
        Cedar Rapids, Iowa 52404
 
        
 
        Mr. James E. Shipman
 
        Mr. James M. Peters
 
        Attorneys at Law
 
        1200 MNB Bldg.
 
        Cedar Rapids, Iowa 52401
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CICELY BROWN,
 
         
 
              Claimant,                              File No. 837608
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         NISSEN CORPORATION,                         D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                       JUN 29 1988
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,                              IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Cicely Brown 
 
         against Nissen Corporation, employer, and National Union Fire 
 
         Insurance Company, insurance carrier.
 
         
 
              The case was heard and fully submitted on November 5, 1987 
 
         at Cedar Rapids, Iowa.  The record in this proceeding consists of 
 
         exhibits 1 through 18 and testimony from Cicely Brown, Dennis 
 
         Mahan, Scott Puryear and Allen Vikdal.
 
         
 
                                    ISSUES
 
         
 
              Claimant alleges that she sustained injury which arose out 
 
         of and in the course of her employment on July 11, 1985 through 
 
         July 15, 1985.  Claimant seeks compensation for permanent total 
 
         disability.  The issues presented by the parties for 
 
         determination include whether claimant sustained an injury which 
 
         arose out of and in the course of employment; whether the alleged 
 
         injury is a cause of temporary or permanent disability; and, 
 
         determination of the nature and extent of any permanent 
 
         disability which exists. Defendants raise an apportionment issue 
 
         asserting that any disability resulting from an injury that 
 
         occurred on August 17, 1984 or from a preexisting degenerative 
 
         disc condition should not be included in any disability award.  
 
         The parties stipulated that, in the event of an award, claimant's 
 
         healing period commences on July 17, 1985 and runs through April 
 
         23, 1986.  It was further stipulated that the correct rate of 
 
         compensation is $269.03.  It was noted that defendants have paid 
 
         120 2/7 weeks of compensation at the incorrect rate of $354.76.
 
         
 
                                                
 
                                                         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  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.
 
         
 
              Cicely Brown is a 50-year-old lady who lives at Center 
 
         Point, Iowa with her husband and two children.  Claimant is a 
 
         high school graduate who attended one-half of a semester at the 
 
         University of Iowa following high school.  Recently, on two 
 
         occasions, she has enrolled at the Kirkwood Community College 
 
         Skill Center, but she dropped out of the programs after a few 
 
         weeks on each occasion.
 
         
 
              In the past, claimant has held a number of different 
 
         employments.  She has been a department store sales clerk, order 
 
         clerk, messenger, youth group program advisor, production line 
 
         assembler, fast food restaurant manager, dance instructor and 
 
         aerobics instructor.
 
         
 
              Claimant commenced employment with Nissen Corporation in 
 
         September, 1978 as an assembler.  Within one year, she became a 
 
         polisher, the position she held until July 16, 1985, her last day 
 
         of work (exhibit 9).
 
         
 
              Claimant has a history of back complaints for which she has 
 
         sought medical care.  On December 1, 1978, she complained of a 
 
         backache (exhibit 1C, page 5).  On May 24, 1979, she was 
 
         diagnosed as having a lumbosacral strain (exhibit 1C, page 7).  
 
         She was hospitalized and taken off work for two weeks commencing 
 
         on June 24, 1980 due to a back strain (exhibit 1I; exhibits 3G, 
 
         H, I and J).  On April 18, 1981, she was seen at St. Lukes 
 
         Emergency Room with back complaints.  Radiographic studies showed 
 
         mild degenerative disc disease in her lower lumbar spine 
 
         (exhibits 3L and M).  Claimant had further back problems on 
 
         September 25, 1981 (exhibit 1C, pages 13 and 14; exhibit 3N).
 
         
 
              On November 7, 1983, claimant was hospitalized for back pain 
 
         and other complaints (exhibits 3Q, R and S).  Radiographic 
 
         studies taken November 15, 1983 showed mild degenerative changes 
 
         in her lumbar spine which had progressed slightly since April 18, 
 
         1981 (exhibit 1C, pages 18 and 19; exhibit 3U).
 
         
 
              On August 17, 1984, claimant presented herself at the Mercy 
 
         Hospital Emergency Room with complaints of pain in her right upper 
 
         lumbar area and pain in her left leg and buttock.  The history 
 
         recorded is that she had lifted a heavy pan at work that morning 
 
         and had experienced increasing discomfort (exhibit 2E, page;38).  
 
         A CT scan performed on August 20, 1984 revealed a minimally 
 
         bulging disc at L4-5 and a similar bulging disc at L5-S1 (exhibit 
 
         2F, page 39).
 
                                                
 
                                                         
 
         
 
              Claimant was subsequently hospitalized from September 22, 
 
         1984 to September 29, 1984.  She improved with conservative 
 
         treatment, traction, physical therapy and medication.  The final 
 
         diagnosis was herniation of the fifth lumbar disc, right (exhibit 
 
         2J, page 43).
 
         
 
              Claimant remained off work under the care of William John 
 
         Robb, M.D., an orthopaedic surgeon, until released to return to 
 
         work on a trial basis on January 7, 1985.  Initially, she did 
 
         well, but experienced a recurrence of symptoms in early March 
 
         (exhibit 4A, pages 98 and 99).  She was again taken off work from 
 
         April 2 until April 9, 1985 (exhibits 4P, Q and R).
 
         
 
              Claimant resumed working.  On May 24, 1985, Dr. Robb 
 
         indicated to the insurance carrier that overtime work could 
 
         compromise claimant's recovery (exhibits 4T and U).
 
         
 
              On July 9, 1985, claimant presented herself at Dr. Robb's 
 
         office with complaints of severe pain which had started while 
 
         picking up a piece of steel on July 8, 1985 (exhibit 4W).  
 
         Claimant continued to work until she was taken off work by Dr. 
 
         Robb on July 17, 1985 (exhibit 4X; exhibit 9).  Claimant has not 
 
         since resumed regular, full-time employment of any type (exhibits 
 
         9 and 14).
 
         
 
              Claimant was hospitalized from August 2, 1985 until August 
 
         7, 1985.  She improved with traction, bedrest, physical therapy 
 
         and medication.  A CT scan revealed no appreciable change from 
 
         the results of the scan which had been performed on August 20, 
 
         1984 (exhibits 2Q, R, S, T and U).
 
         
 
              A myelogram was performed on January 27, 1986 which showed 
 
         moderate bulging of the L2-3, L3-4 and L4-5 intervertebral discs 
 
         and protrusion of the L5-S1 disc on the right, displacing the L5 
 
         nerve root.  A TENS Unit was provided (exhibits 2W, X, Y, Z and 
 
         AA).
 
         
 
              Claimant remained under the treatment of Dr. Robb on a 
 
         regular basis until July 29, 1986 when he determined that she had 
 
         reached maximum recovery and that she would carry a 15% permanent 
 
         impairment of the body as a whole as a result of the herniates 
 
         disc.  Dr. Robb had recommended surgery (exhibit 4A, page 102).
 
         
 
              On July 31, 1986, claimant was evaluated by Martin F. Roach, 
 
         M.D., an orthopaedic surgeon.  Dr. Roach found claimant to have 
 
         degenerative disc disease.  He concluded that claimant was 
 
         affected by the residuals from a lumbosacral sprain and that a 
 
         lot of her symptoms were functional.  He did not feel that the 
 
         region of her fifth lumbar disc was a significant factor in her 
 
         condition.  Dr. Roach recommended pain clinic treatment.  Dr. 
 
         Roach felt that claimant did not have any permanent impairment, 
 
         but that, because she had been out of work for a long time, her 
 
         prognosis for a return to work was very good.  He also indicated 
 
         that he felt she was capable of light work, lifting up to 15 or 
 
                                                
 
                                                         
 
         25 pounds and that a sedentary type of job would be beneficial 
 
         (exhibit 5A).  Dr. Roach did not explain the apparent 
 
         inconsistency between recommending activity restrictions and 
 
         finding no permanent impairment.
 
         
 
              Claimant described her job as a polisher as smoothing metal 
 
         edges to prepare them for chrome plating.  She stated that pieces 
 
         ranged from quite small to as large as 17 feet long and as having 
 
         various shapes.  She stated that she generally handled the pieces 
 
         by herself, one at a time.  She related that the job involved 
 
         lifting, bending and stooping and that most of the time was spent 
 
         in a standing position or moving around.  She was unable to 
 
         estimate the weights that she handled, but she stated that she 
 
         had been capable of easily lifting 100 pounds or more.  Claimant 
 
         stated that she was paid $8.80 per hour and that she enjoyed her 
 
         work and the good working relationship that she had with other 
 
         employees.
 
         
 
              Claimant testified that, on July 11, 1985, a Thursday, she 
 
         was working with volleyball uprights.  She stated that, when she 
 
         picked up the third one of the day, her back made a loud "crack." 
 
         Claimant stated that the upright poles were heavier than normal. 
 
         She stated that, following the incident, her pain began to 
 
         increase, but that she was able to work through the remainder of 
 
         the day.  Claimant stated that she worked the following Friday, 
 
 
 
                             
 
                                                         
 
         but that it had been a short day due to an employee meeting. 
 
         Claimant testified that she rested at home over the weekend and 
 
         tried to work on the following Monday, but that, by noon, she was 
 
         unable to handle the pain, reported it and went home.
 
         
 
              Claimant testified that, prior to July, 1985, her prior 
 
         significant back problem had occurred in August, 1984 when she was 
 
         lifting a pan of heavy parts from the table to the floor.  
 
         Claimant testified that it was while receiving treatment for that 
 
         injury that she began receiving treatment with Dr. Robb.  Claimant 
 
         testified that, following a period of recuperation, she returned 
 
         to work in January, 1985.  She stated that her back was sore, but 
 
         that she worked in spite of it.
 
         
 
              Claimant testified that she entered the Kirkwood Skills 
 
         Center with a plan to enter office work.  She stated that, for 
 
         three weeks, she attended five days per week from 8:00 a.m. until 
 
         2:30 p.m.  She indicated that she had missed some days due to her 
 
         back.  Claimant stated that she discontinued the program because 
 
         she was unable to concentrate, function or sleep due to pain in 
 
         her lower back and down her leg.
 
         
 
              Claimant testified that she subsequently resumed vocational 
 
         rehabilitation in a different capacity.  She had completed the 
 
         20-day evaluation period and had started into the program on a 
 
         four hours per day, three days per week basis and found that she 
 
         was able to cope with it better.  She increased her attendance to 
 
         five days per week and found that she had trouble retaining 
 
         information.  She cut her attendance back to four days per week 
 
         and then discontinued the program approximately one week prior to 
 
         hearing.  Claimant testified that she was crying a lot and unable 
 
         to handle things.  She stated that she has entered into treatment 
 
         with a psychiatrist and is in deep depression.  She stated that 
 
         she has been treated with anti-depressant medication which she 
 
         stated makes her head feel like it is in ether, but that it makes 
 
         her sleep better and relieves the pain in her back.
 
         
 
              Claimant testified that vocational rehabilitation was her 
 
         hope, but that she was having difficulty with it due to her pain 
 
         interfering with her mind.  She stated that, at her home, she is 
 
         unable to function to do laundry, cook or perform other household 
 
         chores.
 
         
 
              Claimant testified that she is never free from pain and 
 
         that, at night, it extends into her legs.  She stated that her 
 
         pain increases with activity and that she obtains relief by 
 
         concentrating on other things or by lying down.  Claimant 
 
         testified that she is able to operate a car for short distances. 
 
         She stated that she cannot bend or lift and is unable to perform 
 
         the polishing job at Nissen or to perform assembly work.  She 
 
         felt that she was unable to be on her feet long enough to manage 
 
         a fast food restaurant and that her inability to lift prohibited 
 
         her from babysitting with a small child.  Claimant related that 
 
         she had performed some volunteer work for nearly a year answering 
 
         a hotline crisis phone for three- to five-hour shifts.  She 
 
                                                
 
                                                         
 
         stated that the line was never busy.  Claimant related that, on 
 
         one occasion, she washed dishes at a restaurant for two and 
 
         one-half hours, but had to go home because her back hurt.  She 
 
         related that she applied at a Casey's convenience store, but was 
 
         not hired and that the job would have required her to unload a 
 
         truck one day each week.  Claimant felt that she was able to 
 
         drive from her home to Cedar Rapids regularly.
 
         
 
              Claimant testified that, in 1984, she had pain in her back 
 
         and buttock and that her right leg was numb.  She related that 
 
         she had experienced pain in her right leg prior to August, 1984, 
 
         but that it had not previously been numb.
 
         
 
              Claimant related that her back was essentially the same from 
 
         January through July of 1985, but that there may have been some 
 
         days that were worse than others.  She stated that she would have 
 
         done the work until she dropped, even if she were in pain.
 
         
 
              Dennis Mahan, claimant's former supervisor at Nissen, 
 
         testified that she had been an above-average employee and would 
 
         have handled weights that range from 1-85 pounds.  Mahan seemed 
 
         to recall claimant speaking of injuring her back outside the 
 
         plant in 1985, but could be no more specific.  He stated that 
 
         claimant had sometimes complained of her back at work, but did 
 
         not indicate that the work was aggravating her back.
 
         
 
              Scott Puryear, Director of Personnel at Nissen, indicated 
 
         that claimant's overtime work was voluntary and that she had not 
 
         requested a lighter job.  He stated that jobs are assigned on a 
 
         bid basis, but that it would be possible to modify a job where it 
 
         would not be subject to bidding.
 
         
 
              Puryear stated that he had observed claimant in the plant to 
 
         pick up her compensation check as recently as two weeks prior to 
 
         hearing and he did not indicate anything unusual about the way in 
 
         which she moved.
 
         
 
              Allen Vikdal testified that he is the consultant in charge 
 
         of the Crawford & Company office in Davenport, Iowa.  Vikdal 
 
         first contacted claimant regarding vocational rehabilitation on 
 
         July 13, 1987 and performed a vocational evaluation.  Vikdal 
 
         indicated that claimant currently has been released to return to 
 
         work by Dr. Robb with restrictions as specified in a letter dated 
 
         January 18, 1987 (exhibit 4CCC, pages 163-165).  Vikdal also 
 
         indicated that he relied upon restrictions as specified by Dr. 
 
         Robb in his deposition taken June 2, 1987.  Vikdal indicated that 
 
         he has reviewed claimant's test results from the Kirkwood Skills 
 
         Center and that she is in the upper 10% with regard to numerical 
 
         and clerical skills and aptitudes.  He felt that she had a high 
 
         aptitude for occupations which involve handling numbers or finger 
 
         dexterity.
 
         
 
              Vikdal expressed the opinion that claimant is competitively 
 
         employable on a full-time basis.  Upon cross-examination, Vikdal 
 
         agreed that Dr. Robb had limited claimant to four to eight hours 
 
                                                
 
                                                         
 
         per day.  Vikdal also indicated that the jobs he identified are 
 
         not necessarily available in the Cedar Rapids, Iowa area or 
 
         within claimant's restrictions.  Vikdal indicated that, with 
 
         conditioning, claimant could increase her endurance in order to 
 
         be able to work a full eight hours per day (see also joint 
 
         exhibit 16).
 
         
 
              Claimant entered the Kirkwood Community Skills Center on 
 
         April 8, 1987 and went through a comprehensive testing program. 
 
         The tests showed claimant to have an extremely high degree of 
 
         aptitude in numerical and clerical fields as well as finger 
 
         dexterity.  She exhibited a high degree of verbal and spatial 
 
         perception aptitudes.  She scored near average with regard to 
 
         form perception, manual dexterity and eye/hand/foot coordination. 
 
         Claimant was referred to the business and office program.  She 
 
         was present for seven days, absent for 14 and then dropped out of 
 
         the program by May 14, 1987 (exhibit 16).
 
         
 
              On or about August 26, 1987, claimant reentered the program. 
 
         The records indicate that claimant did well in the typing and 
 
         bookkeeping courses.  Claimant did not attend regularly, however. 
 
         The final discharge report indicates that the personnel in charge 
 
         of the program felt that claimant had demonstrated the potential 
 
         skills to perform part-time clerical tasks in a competitive 
 
         environment, but that any potential position would require that 
 
         claimant have the ability to follow through with long-term 
 
         participation and that she be able to handle the physical pain 
 
         and emotional stress which would be associated with regular 
 
         employment (joint exhibit 16).
 
         
 
              Exhibit 4DDD is the deposition of William John Robb, M.D., 
 
         taken June 2, 1987.  Dr. Robb stated that the origin of 
 
         claimant's symptoms is related to the herniated disc that 
 
         occurred at work in August, 1984 and that the problem was then 
 
         reaggravated thereafter on numerous occasions while she was at 
 
         work (exhibit 4DDD, pages 12 and 13).  Dr. Robb indicated that 
 
         claimant's restrictions and functional limitations are as set out 
 
         in his letter of January 18, 1987 (deposition exhibit G; exhibit 
 
         4CCC).  Dr. Robb went on to indicate that, following the 1984 
 
         incident, claimant had been releases to return to work with a 
 
         40-pound lifting restriction (exhibit 4DDD, page 14).  Dr. Robb 
 
         stated that claimant is now unable to resume the type of work 
 
         that she performed at Nissen (exhibit 4DDD, page 19).  Dr. Robb 
 
         stated that claimant had sustained cumulative trauma injury in 
 
         the performance of her job at Nissen.  He indicated that the 
 
         cumulative trauma contributed to claimant's condition primarily 
 
         in that it prevented her from healing following the 1984 injury 
 
         (exhibit 4DDD, pages 16, 48 and 49).
 
         
 
              Dr. Robb stated that he had discussed the surgical option 
 
         with claimant.  He stated that he felt surgery would likely 
 
         resolve her leg pain, but that it may or may not resolve her back 
 
         pain.  Dr. Robb indicated that the severity of her symptoms would 
 
         be the determinative factor as to whether or not surgery should 
 
         be performed (exhibit 4DDD, pages 19 and 20).
 
                                                
 
                                                         
 
         
 
              Dr. Robb explained that claimant suffers from both disc 
 
         degeneration and disc herniation, conditions which may exist 
 
         together, but can also be independent.  Dr. Robb did not 
 
         attribute any of claimant's impairment to the degenerative 
 
         disease because it had not been disabling to her prior to August 
 
         of 1984.  He indicated that the 1984 injury was the major cause 
 
         of her disc protrusion problem because it is the first time at 
 
         which true radicular symptoms were exhibited.  Dr. Robb assigned 
 
         a 15% impairment rating of the whole person (exhibit 4DDD, pages 
 
         32-42).
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on or about July 16, 1985 
 
         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).
 
         
 
              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 body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              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, 760-761 
 
         (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).
 
         
 
              Injury resulting from cumulative trauma is compensable. 
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The record in this case shows a marked deterioration of claimant's 
 
         condition.  As indicated by Dr. Robb, the August 17, 1984 incident 
 
         seems to be the most notable of all the incidents which appear in 
 
         the record.  The incidents as a group, however, also show a 
 
         long-term history of stress upon claimant's spine which resulted 
 
         from repetitive bending, twisting and lifting as indicated by Dr. 
 
         Robb (exhibit 4DDD, page 29).  It is therefore found that claimant 
 
         did sustain injury to her back on or about July 16, 1985 which 
 
         arose out of and in the course of her employment with Nissen 
 
         Corporation. Since this case involves a cumulative injury process, 
 
         the last day of work is the correct injury date to be used, rather 
 
         than the date of specific trauma.  McKeever Custom Cabinets v. 
 
         Smith, 379 N.W.2d 368 (Iowa 1985).  The variation in dates is 
 
         found to not be prejudicial to defendants.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 16, 1985 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
                                                
 
                                                         
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant clearly had a degenerative condition which 
 
         progressed while she was employed by Nissen.  She also developed a 
 
         herniated disc during the course of her employment with Nissen. 
 
         Dr. Robb attributes the change in claimant's condition to her 
 
         employment and his opinion is adopted as being correct.  
 
         Defendants seek apportionment of disability between that caused by 
 
         the injury of July 16, 1985 and the prior degenerative condition 
 
         in the 1984 injury.  Apportionment of disability between a 
 
         preexisting condition and an injury is proper only when there was 
 
         some ascertainable disability which existed independently before 
 
         the injury occurred.  Varied Enterprises, Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).  Dr. Robb declined to assign any 
 
         preexisting disability to claimant's degenerative disc disease and 
 
         his assessment is accepted as correct.  Accordingly, no 
 
         apportionment is made for the degenerative condition which 
 
         preexisted July of 1985.  The burden of showing that disability is 
 
         attributable to a preexisting condition is, of course, placed upon 
 
         the defendant. Becker v. D & E Distributing Co., 247 N.W.2d 727, 
 
         731 (Iowa 1976); 2A Larson Workmen's Compensation Law, section 
 
         59.22.
 
         
 
              At this point, it should be noted that claimant's condition 
 
         did deteriorate subsequent to her recovery from the 1984 injury. 
 
         In January of 1985, she returned to work with a 40-pound lifting 
 
         restriction and was able to work eight hours per day.  In fact, 
 
         she worked considerable overtime.  At the present time, claimant 
 
         is much more restricted.  Dr. Robb has restricted her lifting to 
 
         10-20 pounds.  He has limited her to working four to six hours 
 
         per day.  In spite of the fact that the CT scans have not shown 
 
         any particular clarification, it is clear that claimant's 
 
         condition has worsened.  From the evidence in the case, even 
 
         though it is not well developed, it appears that there may be 
 
         some functional overlay or emotional problem which is 
 
         contributing to claimant's current state of disability.
 
         
 
              Claimant seeks an award of permanent total disability and 
 
         relies upon the odd-lot doctrine as adopted by the Iowa Supreme 
 
                                                
 
                                                         
 
         Court in the case Guyton v. Irving Jensen Co., 373 N.W.2d 101, 
 
         103 (Iowa 1985).  Total disability, under workers' compensation 
 
         law, is not utter and abject helplessness.  The ability to earn 
 
         some wages creates a presumption that a person has earning 
 
         capacity commensurate with the wages that have been earned, but 
 
         that presumption may be rebutted by evidence which shows that the 
 
         post-injury earnings are an unreliable indicator of actual 
 
         earning capacity.  Holmquist v. Volkswagon of America, Inc., 261 
 
         N.W.2d 516 (Iowa App. 1977) 100 A.L.R.3d 143; 2 Larson Workmen,s 
 
         Compensation Law, section 57.21, 57.31; Michael v. Harrison 
 
         County, 34th Biennial Report, Iowa Industrial Commissioner 218 
 
         (1979).  The test of permanent total disability in a workers' 
 
         compensation setting has long been established and may be 
 
         summarized as follows:  When the combination of the factors 
 
         considered in determining industrial disability precludes the 
 
         worker from obtaining regular employment in which the worker can 
 
         earn a living for himself or herself, his disability is a total 
 
         disability.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 
 
         (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 
 
         (Iowa 1980); Diederich v. Tri-City Railway, 219 Iowa 587, 594, 
 
         258 N.W. 899, 902 (1935).
 
         
 
              If 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).
 
         
 
              Permanent disability means a disability that is lasting for 
 
         an indefinite and undeterminable period.  It does not require 
 
         proof of absolute perpetuity.  Wallace v. Brotherhood, 230 Iowa 
 
         1127, 1130 (1941).
 
         
 
              There are few individuals in our society whose earning 
 
         capacity is zero.  There are numerous examples of individuals 
 
         with severe physical impairments, even quadriplegics, who are 
 
         able to produce some level of earnings.  The true test, however, 
 
         for permanent total disability, is whether the person has the 
 
         ability to earn sufficient income to be self-supporting.  The 
 
         evidence from Allen Vikdal indicates that most jobs available to 
 
         claimant would pay in the minimum wage or slightly above minimum 
 
         wage range.  She is currently restricted to working four to six 
 
         hours per day.  It is found and determined that, in the Cedar 
 
                                                
 
                                                         
 
         Rapids, Iowa area, it is not possible for a person to be 
 
         self-supporting when earning $4.00 per hour and working no more 
 
         than 30 hours per week.  Claimant is therefore determined to be 
 
         permanently and totally disabled.  Claimant's actual job seeking 
 
         and participation in the Kirkwood Skills Center qualifies as a 
 
         bona fide search for work in order to bring into play the odd-lot 
 
         doctrine and the shifting of the burden of persuasion.  Emshoff 
 
         v. Petroleum Transportation Services, file number 753723, Appeal 
 
         Decision, March 31, 1987; Pyle v. Carstensen Freight Lines, Inc., 
 
         file number 753661, Appeal Decision, July 24, 1987.
 
         
 
              When an injury produces total disability, the degree of 
 
         preexisting permanent partial impairment or permanent partial 
 
         disability is of no consequence.  A worker is deemed totally 
 
         disabled only when that worker has insufficient residual earning 
 
         capacity to be self-supporting.  The entire object of the 
 
         workers' compensation system is to provide benefits where 
 
         benefits are needed.  It would be totally inconsistent with that 
 
         purpose and illogical to deny benefits, based upon some lesser 
 
         degree of preexisting disability, from a person who is made 
 
         totally disabled by an injury.  It is therefore concluded that 
 
         defendants are responsible for payment of weekly compensation for 
 
         permanent total disability under the provisions of Iowa Code 
 
         section 85.34(3).  In addition, even if the general rule 
 
         previously stated were not applicable, there is something 
 
         repugnant and offensive about a defense such as the one raised in 
 
         this case, where the existence of a prior injury, occurring with 
 
         the same employer, is raised as a defense to avoid payment.  It 
 
         would seem that, where the employer has failed to compensate the 
 
         disability that resulted from the prior injury, the employer 
 
         should be estopped from raising that disability as a defense in a 
 
         subsequent claim. Principles of estoppel are applied in workers' 
 
         compensation proceedings.  Paveglio v. Firestone Tire Rubber Co., 
 
 
 
                        
 
                                                         
 
         167 N.W.2d 636 (Iowa 1969).
 
         
 
              Defendants are obviously entitled to credit for the excess 
 
         payments paid prior to hearing resulting from use of an incorrect 
 
         rate of compensation.  [Iowa Code section 85.34(4)].
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  On July 16, 1985, Cicely Brown was a resident of the 
 
         state of Iowa employed by Nissen Corporation within the state of 
 
         Iowa.
 
         
 
              2.  Claimant was injured on or about July 16, 1985.  The 
 
         injury occurred as part of a cumulative injury process resulting 
 
         from her bending, twisting and lifting that she performed as part 
 
         of her employment duties.  The injury also involved a significant 
 
         incident while lifting a volleyball pole.
 
         
 
              3.  Following the injury, claimant became permanently 
 
         medically incapable of performing work in employment 
 
         substantially similar to that she performed at the time of 
 
         injury.  Claimant reached maximum medical recuperation on April 
 
         23, 1986 as stipulated by the parties in the pre-hearing report.
 
         
 
              4.  Cicely Brown is a 50-year-old, married lady with two 
 
         children.
 
         
 
              5.  At the time of injury, claimant was earning $8.80 per 
 
         hour.
 
         
 
              6.  Claimant has a high school education and aptitude for 
 
         clerical work.
 
         
 
              7.  Claimant is of at least average intelligence; however 
 
         she appears to be emotionally unstable.
 
         
 
              8.  The assessment of this case as made by Dr. Robb is 
 
         correct in all respects, including the physical limitations which 
 
         he has provided.
 
         
 
              9.  Claimant is a credible witness; however her perceptions 
 
         and memory may be affected by an emotional disorder and/or 
 
         functional overlay.  She has some confusion regarding dates.
 
         
 
              10.  Claimant does not have sufficient earning capacity at 
 
         the present time in order to make herself self-supporting and it 
 
         is unlikely that such status will change in the foreseeable 
 
         future.
 
         
 
              11.  Of the incidents identified in the record, the incident 
 
         of August 17, 1984 is the most significant with regard to 
 
         causation of claimant's current condition.  Claimant did have 
 
         sufficient residual earning capacity to be self-supporting 
 
         following her recovery from the 1984 injury.
 
         
 
                                                
 
                                                         
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to her back on or about 
 
         July 16, 1985 arose out of and in the course of her employment 
 
         with Nissen Corporation.
 
         
 
              3.  Claimant is permanently and totally disabled within the 
 
         meaning of Iowa Code section 85.34(3).
 
         
 
              4.  The injury claimant sustained on or about July 16, 1985 
 
         is a proximate cause of the claimant's total status of permanent, 
 
         total disability.
 
         
 
              5.  A person is permanently and totally disabled, for 
 
         purposes of workers' compensation, when the person does not have 
 
         sufficient earning capacity to be self-supporting through gainful 
 
         employment and there is no foreseeable likelihood that the 
 
         person's earning capacity will change.
 
         
 
              6.  The degree of preexisting permanent partial disability 
 
         is immaterial when an injury causes a person to become totally 
 
         disabled and, where such occurs, the employer at the time of the 
 
         injury that causes total disability is responsible for payment of 
 
         total disability compensation under the provisions of Iowa Code 
 
         section 85.34(3).
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         compensation for permanent total disability at the stipulated 
 
         rate of two hundred sixty-nine and 03/100 dollars ($269.03) per 
 
         week commencing July 17, 1985 and continuing thereafter for so 
 
         long as claimant remains totally disabled pursuant to Iowa Code 
 
         section 85.34(3).
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit for the 
 
         excess payment based upon use of an incorrect rate.  All past due 
 
         accrued amounts shall be paid in a lump sum together with 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33, 
 
         including the following:
 
         
 
                   Dr. Robb report                   $100.00
 
                   Dr. Robb deposition transcript     173.00
 
                   Dr. Robb expert witness fee
 
                       for deposition                 150.00
 
                   Certified mailing fees               3.34
 
                   Total                             $426.34
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant's mileage 
 
                                                
 
                                                         
 
         expenses under Iowa Code section 85.27 in the total amount of 
 
         four hundred twenty-six and 00/100 dollars ($426.00).
 
         
 
              Signed and filed this 29th day of June, 1988.
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue SW
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. James E. Shipman
 
         Mr. James M. Peters
 
         Attorneys at Law
 
         1200 MNB Building
 
         Cedar Rapids, Iowa  52401
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1404, 1804, 1806
 
                                                 2209, 4100
 
                                                 Filed June 29, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CICELY BROWN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 837608 
 
         NISSEN CORPORATION,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1404, 1804, 1806, 2209, 4100
 
         
 
              Claimant suffered from a degenerative condition which had 
 
         worsened during her term of employment.  She had a number of 
 
         apparently minor back injuries, but in 1984, suffered a major 
 
         injury which produced her first radicular symptoms and which the 
 
         treating orthopaedic surgeon found to be the major cause of her 
 
         disability.  Following recovery, she returned to work for 
 
         approximately six months and was then reinjured and has never 
 
         returned to gainful employment since.
 
         
 
              The brightest employment outlook that was available was 
 
         part-time work at or near minimum wage pay scales.
 
         
 
              It was held that the claimant was permanently and totally 
 
         disabled since she was unable to be self-supporting.  It was held 
 
         that the burden of proof of apportionment of disability rests 
 
         upon an employer who asserts it.  It was further held that, where 
 
         an injury produces permanent, total disability, the extent of any 
 
         preexisting permanent partial disability is immaterial since 
 
         there is no practical way that is consistent with the intent of 
 
         the workers' compensation laws to apportion out that preexisting 
 
         disability.  The odd-lot doctrine was applied since the claimant 
 
         had made a prima facie showing of total disability and had both 
 
         sought education through vocational rehabilitation and had 
 
         actually sought work.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                     1803 - 1806 - 2204 - 2206 - 4100
 
                                     Filed November 30, 1989
 
                                     DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CICELY BROWN,
 
        
 
             Claimant,
 
        
 
        vs.
 
                                               File No. 837608
 
        NISSEN CORPORATION,
 
                                                 A P P E A L
 
             Employer,
 
                                               D E C I S I O N
 
        and
 
        
 
        NATIONAL UNION FIRE
 
        INSURANCE COMPANY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        1803 - 2206
 
        
 
             Claimant suffered from a degenerative condition which had 
 
             worsened during her term of employment. She had a number of 
 
             apparently minor back injuries, but in 1984, suffered a major 
 
             injury which produced her first radicular symptoms and which the 
 
             treating orthopaedic surgeon found to be a major cause of her 
 
             disability. Following recovery, she returned to work for 
 
             approximately six months and worked overtime and was then 
 
             reinjured in July 1985. Claimant has never returned to gainful 
 
             employment since. It was found that claimant suffered an injury 
 
             in July 1985 that caused her permanent disability. Claimant 
 
             awarded 70 percent industrial disability.
 
        
 
        1806
 
        
 
             Deputy was correct in not apportioning claimant's 
 
             disability. Claimant's work restrictions changed significantly 
 
             after a July 1985 injury. All of claimant's loss of earning 
 
             capacity was the result of the July 1985 traumatic injury.
 
        
 
        2204
 
        
 
             Claimant, who had emotional problems prior to the work 
 
             injury, did not prove that emotional problems were related to the 
 
             work injury.
 
        
 
        4100
 
        
 
             The correct test for odd-lot is whether claimant is 
 
             employable in a competitive labor market. The test is not the 
 
             test used by the deputy, namely whether claimant has the ability 
 
             to earn sufficient income to be self supporting. Claimant had 
 

 
        
 
 
 
 
 
             tried only one job which involved prolonged standing. Claimant 
 
             had unsuccessfully attempted vocational rehabilitation on two 
 
             occasions. The second attempt failed because of claimant's pain 
 
             and emotional problems. Claimant had not made a bona fide 
 
             attempt at vocational rehabilitation and had not made a prima 
 
             facie showing that she was an odd-lot employee.