BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
DONALD WHITE,    
 
            
 
     Claimant,                          File No. 848803
 
            
 
vs.                                       A P P E A L
 
            
 
JOHN DEERE FOUNDRY,                      D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                               ISSUES
 
 
 
Defendant states the following issues on appeal:
 
 
 
A.  Did claimant suffer a scheduled injury, entitling him to 
 
scheduled benefits to the leg, or did he suffer an injury to 
 
the body as a whole, entitling him to industrial disability benefits.
 
 
 
B.  If Claimant suffered a body as a whole injury, to how much 
 
industrial disability is he entitled.
 
 
 
C.  If Claimant suffered a scheduled injury to a leg, is he 
 
entitled to increased scheduled benefits.
 
 
 
                           FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
March 22, 1994 are adopted as set forth below.  Segments designated by 
 
asterisks (*****) indicate portions of the language from the proposed 
 
agency decision that have been intentionally deleted and do not form a 
 
part of this final agency decision.  Segments designated by brackets ([ 
 
]) indicate language that is in addition to the language of the 
 
proposed agency decision.
 
 
 
Claimant is a 42-year-old high school graduate who had no other formal 
 
education other than he did go through a printing apprenticeship and in 
 
which he began the apprenticeship within the last two years of high 
 
school and the following two years.  Claimant then began working for 
 
John Deere on April 12, 1972, and has worked there ever since other 
 
than an eleven month layoff in 1986, during which he did carpentry 
 
work, etc., on a self-employed basis.  Claimant described his various 
 
job positions at John Deere and they basically involved heavy work.  
 
Claimant never had any restrictions prior to his March 21, 1987 injury. 
 
 
 
 Claimant had been off work approximately one year prior to his injury 
 
and had just been called back the first part of March approximately 21 
 
days before he was injured.  Claimant described the nature of the job 
 
he was doing when he was injured and how he was injured.  Basically, 
 
claimant was handling a six foot front axle housing weighing 
 
approximately 650 pounds which flipped off a hoist hook and fell on 
 
claimant's leg knocking claimant into a cylinder head and causing him 
 
to hit a tub.  He was not able to get up until this object was lifted 
 

 
 
 
 
 
 
 
off his leg.  Claimant described blood squirting and how his leg was 
 
twisted out as he lay there.  Claimant was very upset and very 
 
emotional in describing this injury which is very understandable and 
 
even more so when claimant later showed his leg and his current 
 
condition and the area of his injury and also the flap of skin that was 
 
taken from other parts of his body to put over the leg wound.  Claimant 
 
limps when he walks.
 
 
 
Claimant described what occurred after his accident, his 
 
hospitalization, the length, his brace, the necessity to hold his bone 
 
with a screw, and the need to use morphine for pain.  Claimant said he 
 
almost had a nervous breakdown over this.  He was off work for two 
 
years and was in a cast over one and one-half years and on crutches.  
 
He was unable to work those two years.  Claimant described the sharp 
 
pains he would have in his fibia as the fracture did not heal because 
 
of the major break of the ankle.  He indicated they cut out four inches 
 
of the fibia in July of 1990.  Claimant also had treatment at Mayo.  He 
 
described the problems he had with the leg healing and with the 
 
drainage problem.  He indicated that the doctors were concerned about 
 
osteoarthritis because of this drainage in the leg.  He acknowledged 
 
that Jitu D. Kothari, M.D., opined a 35 percent impairment rating to 
 
claimant's right leg and upon getting a second opinion by Arnold E. 
 
Delbridge, M.D., he agreed with Dr. Kothari.  Claimant contends that he 
 
talked to doctors concerning his back pain and the pain in the right 
 
side of his back and lower right side and the numbness in his leg and 
 
that this pain was working up his right side to his back.  He 
 
acknowledged that Dr. Kothari did not treat the back.
 
 
 
Claimant related his reconstruction surgery in which they took a muscle 
 
from his thigh to his lower leg and put this flap on his right leg 
 
pursuant to a 12 hour surgery.  He indicated his leg is one_half inch 
 
shorter than the other leg.  Claimant said that his problem is 
 
resulting in discomfort in his back and right side and now has gone up 
 
to his neck and hip.
 
 
 
Claimant said he is now back working at John Deere driving an 
 
industrial forklift.  He said he is able to do this job as he could not 
 
do the job he had before his injury.  Claimant contends he has constant 
 
discomfort all the time in his leg and down the side of his body and 
 
his back and that goes into his neck.
 
 
 
Claimant acknowledged that prior to this injury he did have an 
 
adjustment to his back by Kent D. Miller, M.D., as he has had back 
 
problems before and had adjustments for the injury.  He emphasized that 
 
since his right leg injury, he has had continuous treatment rather than 
 
sporadic treatments depending on circumstances prior to his injury.
 
 
 
Janet L. White, claimant's wife, has known claimant since 1989.  They 
 
eventually got married in February 1992.  He said she has basically 
 
been with claimant all the time since his second surgery in October of 
 
1990.
 
 
 
She said that if claimant does some activity, he then has continuous 
 
pain.  She indicated that if they would go to a mall, he would last 
 
approximately one hour.  She emphasized he can't do a lot of things.  
 
After his leg starts hurting, he sits and then his back hurts and he 
 
must rest.
 
 
 
Joint exhibit 3 is the records of Dr. Kothari beginning March 21, 1987. 
 
 
 
 It was not until January 24, 1989 that the doctor's notes reflect 
 
claimant's neck and back complaint.  His notes reflect that the pain in 
 
the patient indicated he was having increased pain and stiffness in his 
 
neck and back since the accident to his leg and that the numbness was 
 
radiating down the back to the left hip and upper left leg.  He also 
 
indicated claimant had fallen on the ice around December 24, 1988.  
 
(Jt. Ex. 3, p. 16)  There is no other mention of any back or neck 
 

 
 
 
 
 
 
 
 
 
problem up to August 2, 1989, at which time claimant was in the 
 
doctor's office for a disability rating in which the doctor opined that 
 
claimant had a 35 percent permanent impairment loss of physical 
 
function to the right lower extremity.  There was nothing mentioned as 
 
to any other injury to claimant's body as a whole. (Jt. Ex. 3, p. 20)
 
 
 
The notes then reflect that on January 26, 1990, claimant was in to see 
 
Dr. Kothari and mentioned that he was taking back manipulation 
 
treatment with Dr. Miller.  Joint exhibit 3, page 22, reflects 
 
claimant's back and right shoulder and scapular area problems and the 
 
doctor felt that claimant had back pain secondary to his leg injury 
 
relating to using the crutches and nonweight-bearing and leg length 
 
discrepancy.
 
 
 
The doctor checked for a herniated disc because of claimant's problem 
 
but claimant's spine was shown to be normal on a CT scan.  The doctor 
 
believed again on this date of January 31, 1990, that claimant's low 
 
back pain was secondary to compensatory mechanism of having a fractured 
 
leg and having a cast and using the crutches for such a long period of 
 
time.
 
 
 
Dr. Kothari's records show that on April 23, 1990, claimant reportedly 
 
fell down the stairs on the 21st when his right knee gave out.  
 
Claimant had been reporting that his right knee also had been hurting 
 
along with his left knee.  Joint exhibit 3, page 29, is an August 2, 
 
1989 letter of Dr. Kothari in which he reaffirms a 39 percent permanent 
 
impairment and loss of physical function to claimant's right lower 
 
extremity and also states that claimant's calf circumference was 13 
 
inches on the right as compared to 14 inches on the left side.  He has 
 
an obvious limp from the weakness in the leg muscles from the fracture 
 
and his right leg is one_half inch shorter than the left secondary to 
 
the fractured tibia.
 
 
 
Joint exhibit 4 is an October 18, 1993 letter from Arnold E. Delbridge, 
 
M.D., in which he reiterated claimant's problems with his right leg and 
 
increased his right lower extremity impairment from his previous 35 
 
percent in August of 1989 to 40 percent.  He indicated claimant was 
 
having scarring on his thigh which he did not have before.  The doctor 
 
also referred to the fact claimant was seeing Dr. Miller for his back 
 
problems.  He concluded that claimant has aggravated his low back as a 
 
result of his injury as he walks with an uneven gait because of 
 
shortening and because of the loss of dorsiflexion of his right ankle.  
 
He indicated claimant's altered gait is the result of his work injury 
 
and causes claimant increased problems with his increased pain in his 
 
lower back.  The doctor indicated he had a hard time at that time in 
 
assigning an impairment to claimant's body as a whole or his back 
 
problem but it is obvious from that letter he indicated claimant will 
 
very likely continue to have lower back problems because of his altered 
 
gait and that this will get worse, particularly if he stands on it for 
 
long periods of time or has to walk a great deal.
 
 
 
Joint exhibit 5 is the records of Dr. Miller.  They reflect claimant 
 
was having back problems and spasms over the periods of time he was 
 
being treated by Dr. Miller which appears to have been in 1986 through 
 
at least the latter part of 1993.  Dr. Miller's letters of August 1989 
 
and December 20, 1989, in which the doctor indicated claimant's chronic 
 
back problems were somewhat worse due to his right tibia fracture and 
 
indicated in the latter letter that claimant was having more and more 
 
low back problems which he believes are related to the fact that 
 
claimant now has an anatomical short leg secondary to his leg fracture 
 
and that these problems were not present prior to the accident where he 
 
injured his leg.  This obviously is referring to the March 1987 injury.
 
 
 
Joint exhibit 6 is claimant's medical records from Mayo Clinic and 
 
include the surgical information also.  One notes that there is 
 
reference in these reports of claimant having back problems and on 
 

 
 
 
 
 
 
 
August 6, 1991, had recently received a shoe lift which improved his 
 
back pain.  On joint exhibit 6, page 81, is a January 9, 1992 letter of 
 
Artlen D. Hanssen, M.D., in which he agreed that an orthotic foot lift 
 
device will resolve some of the leg length discrepancy and claimant's 
 
secondary back soreness.
 
 
 
The dispute in this case centers on whether claimant's permanent 
 
disability is to a scheduled member, claimant's right leg, or right 
 
lower extremity only, or also involves his body as a whole.
 
 
 
It is undisputed that claimant had a very serious injury to his right 
 
leg.  The evidence shows that two doctors opined some time ago that 
 
claimant had a 35 percent permanent impairment and Dr. Delbridge 
 
updated his impairment rating based on claimant's continued problems.  
 
His latest rating was 40 percent.  The doctor could not put a specific 
 
impairment rating on claimant's low back.  The evidence is clear that 
 
claimant has had low back problems that have been bothering him since 
 
his March 21, 1987 injury.  The evidence also shows that he had some 
 
back problems prior to the injury but the medical evidence is clear 
 
that they were aggravated and lighted up and made substantially worse 
 
and on a constant and continuing basis since his 1987 injury.
 
 
 
Claimant's right leg is shorter than the left.  Claimant walks with a 
 
limp.  *****  There is considerable comments through the years in 
 
claimant's medical records since his March 21, 1987 letter as to 
 
claimant's leg being short and the effect of this length of disparity 
 
on claimant's back, etc.  There have been attempts to use an orthotic 
 
device to lessen this.  [Claimant's back problems have caused him to 
 
miss work, and are thus disabling.  It is found that claimant's altered 
 
gait, as a result of his work injury, has extended his impairment into 
 
his back and constitutes a body as a whole injury.]  [It is further 
 
found] ***** that claimant's March 21, 1987 injury which resulted in 
 
claimant having a shortness in his right leg has caused claimant to 
 
incur an additional injury to his body as a whole and in the area of 
 
his back and that the original leg injury has gone into the body as a 
 
whole.
 
 
 
     *****
 
 
 
Normally, if there is impairment to a scheduled member and to the body 
 
as a whole, then the combined charts are used to arrive at a body as a 
 
whole figure.  In this case, we do not have any body as a whole 
 
permanent impairment rating by a doctor.  ***** It would appear that 
 
claimant still has some permanent restrictions.  These for the most 
 
part have to do with the extent of claimant's walking or standing.  It 
 
is obvious from the record that standing and walking causes claimant's 
 
back pain and irritation.  *****
 
 
 
Taking into consideration claimant's injury to his leg of March 21, 
 
1987, which also now has caused injury into claimant's back, [it is 
 
found] ***** claimant has an impairment to his body as a whole or at 
 
least a work injury to his body as a whole.
 
 
 
Taking into consideration claimant's prior work history and medical 
 
history prior to and after his March 21, 1987 injury; his education; 
 
intellectual; emotional and physical qualifications; his income prior 
 
to and after his injury; location and severity of the injury; the 
 
length of his healing period; his age; motivation; any functional 
 
impairment; and the fact that defendant employer has accommodated 
 
claimant on the job, ***** [it is found] claimant has incurred a 30 
 
percent industrial disability, with the disability benefits running 
 
from September 24, 1991.
 
 
 
     *****
 
 
 
                     CONCLUSIONS OF LAW
 

 
 
 
 
 
 
 
 
 
The conclusions of law contained in the proposed agency decision filed 
 
March 22, 1994 are adopted as final agency action.
 
 
 
WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                            ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendant shall pay unto claimant one hundred fifty (150) weeks of 
 
permanent partial disability benefits at the rate of three hundred six 
 
and 81/100 dollars ($306.81) beginning September 24, 1991.
 
 
 
That defendant shall pay accrued weekly benefits in a lump sum and 
 
shall receive credit against the award for weekly benefits previously 
 
paid.  The parties agreed that defendant previously paid seventy_seven 
 
(77) weeks of permanent partial disability at the rate of three hundred 
 
six and 81/100 dollars ($306.81).
 
 
 
That defendant shall pay interest on benefits awarded herein as set 
 
forth in Iowa Code section 85.30.
 
 
 
That defendant shall pay the costs of this matter including the 
 
transcription of the hearing.  
 
 
 
That defendant shall file an activity report upon payment of this award 
 
as required by this agency, pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of December, 1994.      
 
                              _______________________________
 
                              BYRON K. ORTON           
 
                              INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Robert D. Fulton
 
Attorney at Law
 
P.O. Box 2634
 
Waterloo, Iowa 50704
 
 
 
Mr. John W. Rathert
 
Attorney at Law
 
620 Lafayette Street
 
P.O. Box 178
 
Waterloo, Iowa  50704
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  1803; 1803.1
 
                                  Filed December 30, 1994
 
                                  Byron K. Orton
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
DONALD WHITE,    
 
            
 
     Claimant,                           File No. 848803
 
            
 
vs.                                        A P P E A L
 
            
 
JOHN DEERE FOUNDRY,                       D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
1803; 1803.1
 
 
 
Found claimant's work injury to his right leg causing a shortening of 
 
his leg and severe impairment additionally resulted in injury going 
 
into claimant's body as a whole resulting in claimant incurring a 30 
 
percent industrial disability.
 
 
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DONALD WHITE,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 848803
 
            JOHN DEERE FOUNDRY, 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured,                   D E C I S I O N
 
                 Defendant.     
 
                      
 
            ------------------------------------------------------------
 
            
 
                              STATEMENT OF THE CASE
 
            
 
            This case came on for hearing on March 3, 1994, at Waterloo, 
 
            Iowa.  This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            as a result of an alleged injury occurring on March 21, 
 
            1987.  The record in the proceeding consists of the 
 
            testimony of the claimant and claimant's wife, Janet L. 
 
            White, and joint exhibits 1 through 11.
 
            
 
                                      ISSUES
 
            
 
            The issues for resolution are:
 
            
 
            1. The extent of claimant's permanent disability and 
 
            entitlement to disability benefits; and,
 
            
 
            2.  Whether the injury is a scheduled member injury to 
 
            claimant's right leg or body as a whole;
 
            
 
                                  FINDINGS OF FACT
 
            
 
            The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
            Claimant is a 42-year-old high school graduate who had no 
 
            other formal education other than he did go through a 
 
            printing apprenticeship and in which he began the 
 
            apprenticeship within the last two years of high school and 
 
            the following two years.  Claimant then began working for 
 
            John Deere on April 12, 1972, and has worked there ever 
 
            since other than an eleven month layoff in 1986, during 
 
            which he did carpentry work, etc., on a self-employed basis.  
 
            Claimant described his various job positions at John Deere 
 
            and they basically involved heavy work.  Claimant never had 
 
            any restrictions prior to his March 21, 1987 injury.  
 
            Claimant had been off work approximately one year prior to 
 
            his injury and had just been called back the first part of 
 
            March approximately 21 days before he was injured.  Claimant 
 
            described the nature of the job he was doing when he was 
 
            injured and how he was injured.  Basically, claimant was 
 
            handling a six foot front axle housing weighing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            approximately 650 pounds which flipped off a hoist hook and 
 
            fell on claimant's leg knocking claimant into a cylinder 
 
            head and causing him to hit a tub.  He was not able to get 
 
            up until this object was lifted off his leg.  Claimant 
 
            described blood squirting and how his leg was twisted out as 
 
            he lay there.  Claimant was very upset and very emotional in 
 
            describing this injury which is very understandable and even 
 
            more so when claimant later showed his leg and his current 
 
            condition and the area of his injury and also the flap of 
 
            skin that was taken from other parts of his body to put over 
 
            the leg wound.  Claimant limps when he walks.
 
            
 
            Claimant described what occurred after his accident, his 
 
            hospitalization, the length, his brace, the necessity to 
 
            hold his bone with a screw, and the need to use morphine for 
 
            pain.  Claimant said he almost had a nervous breakdown over 
 
            this.  He was off work for two years and was in a cast over 
 
            one and one-half years and on crutches.  He was unable to 
 
            work those two years.  Claimant described the sharp pains he 
 
            would have in his fibia as the fracture did not heal because 
 
            of the major break of the ankle.  He indicated they cut out 
 
            four inches of the fibia in July of 1990.  Claimant also had 
 
            treatment at Mayo.  He described the problems he had with 
 
            the leg healing and with the drainage problem.  He indicated 
 
            that the doctors were concerned about osteoarthritis because 
 
            of this drainage in the leg.  He acknowledged that Jitu D. 
 
            Kothari, M.D., opined a 35 percent impairment rating to 
 
            claimant's right leg and upon getting a second opinion by 
 
            Arnold E. Delbridge, M.D., he agreed with Dr. Kothari.  
 
            Claimant contends that he talked to doctors concerning his 
 
            back pain and the pain in the right side of his back and 
 
            lower right side and the numbness in his leg and that this 
 
            pain was working up his right side to his back.  He 
 
            acknowledged that Dr. Kothari did not treat the back.
 
            Claimant related his reconstruction surgery in which they 
 
            took a muscle from his thigh to his lower leg and put this 
 
            flap on his right leg pursuant to a 12 hour surgery.  He 
 
            indicated his leg is one-half inch shorter than the other 
 
            leg.  Claimant said that his problem is resulting in 
 
            discomfort in his back and right side and now has gone up to 
 
            his neck and hip.
 
            
 
            Claimant said he is now back working at John Deere driving 
 
            an industrial forklift.  He said he is able to do this job 
 
            as he could not do the job he had before his injury.  
 
            Claimant contends he has constant discomfort all the time in 
 
            his leg and down the side of his body and his back and that 
 
            goes into his neck.
 
            
 
            Claimant acknowledged that prior to this injury he did have 
 
            an adjustment to his back by Kent D. Miller, M.D., as he has 
 
            had back problems before and had adjustments for the injury.  
 
            He emphasized that since his right leg injury, he has had 
 
            continuous treatment rather than sporadic treatments 
 
            depending on circumstances prior to his injury.
 
            Janet L. White, claimant's wife, has known claimant since 
 
            1989.  They eventually got married in February 1992.  He 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            said she has basically been with claimant all the time since 
 
            his second surgery in October of 1990.
 
            She said that if claimant does some activity, he then has 
 
            continuous pain.  She indicated that if they would go to a 
 
            mall, he would last approximately one hour.  She emphasized 
 
            he can't do a lot of things.  After his leg starts hurting, 
 
            he sits and then his back hurts and he must rest.
 
            
 
            Joint exhibit 3 is the records of Dr. Kothari beginning 
 
            March 21, 1987.  It was not until January 24, 1989 that the 
 
            doctor's notes reflect claimant's neck and back complaint.  
 
            His notes reflect that the pain in the patient indicated he 
 
            was having increased pain and stiffness in his neck and back 
 
            since the accident to his leg and that the numbness was 
 
            radiating down the back to the left hip and upper left leg.  
 
            He also indicated claimant had fallen on the ice around 
 
            December 24, 1988.  (Jt. Ex. 3, p. 16)  There is no other 
 
            mention of any back or neck problem up to August 2, 1989, at 
 
            which time claimant was in the doctor's office for a 
 
            disability rating in which the doctor opined that claimant 
 
            had a 35 percent permanent impairment loss of physical 
 
            function to the right lower extremity.  There was nothing 
 
            mentioned as to any other injury to claimant's body as a 
 
            whole. (Jt. Ex. 3, p. 20)
 
            
 
            The notes then reflect that on January 26, 1990, claimant 
 
            was in to see Dr. Kothari and mentioned that he was taking 
 
            back manipulation treatment with Dr. Miller.  Joint exhibit 
 
            3, page 22, reflects claimant's back and right shoulder and 
 
            scapular area problems and the doctor felt that claimant had 
 
            back pain secondary to his leg injury relating to using the 
 
            crutches and nonweight-bearing and leg length discrepancy.
 
            The doctor checked for a herniated disc because of 
 
            claimant's problem but claimant's spine was shown to be 
 
            normal on a CT scan.  The doctor believed again on this date 
 
            of January 31, 1990, that claimant's low back pain was 
 
            secondary to compensatory mechanism of having a fractured 
 
            leg and having a cast and using the crutches for such a long 
 
            period of time.
 
            
 
            Dr. Kothari's records show that on April 23, 1990, claimant 
 
            reportedly fell down the stairs on the 21st when his right 
 
            knee gave out.  Claimant had been reporting that his right 
 
            knee also had been hurting along with his left knee.  Joint 
 
            exhibit 3, page 29, is an August 2, 1989 letter of Dr. 
 
            Kothari in which he reaffirms a 39 percent permanent 
 
            impairment and loss of physical function to claimant's right 
 
            lower extremity and also states that claimant's calf 
 
            circumference was 13 inches on the right as compared to 14 
 
            inches on the left side.  He has an obvious limp from the 
 
            weakness in the leg muscles from the fracture and his right 
 
            leg is one-half inch shorter than the left secondary to the 
 
            fractured tibia.
 
            Joint exhibit 4 is an October 18, 1993 letter from Arnold E. 
 
            Delbridge, M.D., in which he reiterated claimant's problems 
 
            with his right leg and increased his right lower extremity 
 
            impairment from his previous 35 percent in August of 1989 to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            40 percent.  He indicated claimant was having scarring on 
 
            his thigh which he did not have before.  The doctor also 
 
            referred to the fact claimant was seeing Dr. Miller for his 
 
            back problems.  He concluded that claimant has aggravated 
 
            his low back as a result of his injury as he walks with an 
 
            uneven gait because of shortening and because of the loss of 
 
            dorsiflexion of his right ankle.  He indicated claimant's 
 
            altered gait is the result of his work injury and causes 
 
            claimant increased problems with his increased pain in his 
 
            lower back.  The doctor indicated he had a hard time at that 
 
            time in assigning an impairment to claimant's body as a 
 
            whole or his back problem but it is obvious from that letter 
 
            he indicated claimant will very likely continue to have 
 
            lower back problems because of his altered gait and that 
 
            this will get worse, particularly if he stands on it for 
 
            long periods of time or has to walk a great deal.
 
            Joint exhibit 5 is the records of Dr. Miller.  They reflect 
 
            claimant was having back problems and spasms over the 
 
            periods of time he was being treated by Dr. Miller which 
 
            appears to have been in 1986 through at least the latter 
 
            part of 1993.  Dr. Miller's letters of August 1989 and 
 
            December 20, 1989, in which the doctor indicated claimant's 
 
            chronic back problems were somewhat worse due to his right 
 
            tibia fracture and indicated in the latter letter that 
 
            claimant was having more and more low back problems which he 
 
            believes are related to the fact that claimant now has an 
 
            anatomical short leg secondary to his leg fracture and that 
 
            these problems were not present prior to the accident where 
 
            he injured his leg.  This obviously is referring to the 
 
            March 1987 injury.
 
            
 
            Joint exhibit 6 is claimant's medical records from Mayo 
 
            Clinic and include the surgical information also.  One notes 
 
            that there is reference in these reports of claimant having 
 
            back problems and on August 6, 1991, had recently received a 
 
            shoe lift which improved his back pain.  On joint exhibit 6, 
 
            page 81, is a January 9, 1992 letter of Artlen D. Hanssen, 
 
            M.D., in which he agreed that an orthotic foot lift device 
 
            will resolve some of the leg length discrepancy and 
 
            claimant's secondary back soreness.
 
            
 
            The dispute in this case centers on whether claimant's 
 
            permanent disability is to a scheduled member, claimant's 
 
            right leg, or right lower extremity only, or also involves 
 
            his body as a whole.
 
            
 
            It is undisputed that claimant had a very serious injury to 
 
            his right leg.  The evidence shows that two doctors opined 
 
            some time ago that claimant had a 35 percent permanent 
 
            impairment and Dr. Delbridge updated his impairment rating 
 
            based on claimant's continued problems.  His latest rating 
 
            was 40 percent.  The doctor could not put a specific 
 
            impairment rating on claimant's low back.  The evidence is 
 
            clear that claimant has had low back problems that have been 
 
            bothering him since his March 21, 1987 injury.  The evidence 
 
            also shows that he had some back problems prior to the 
 
            injury but the medical evidence is clear that they were 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            aggravated and lighted up and made substantially worse and 
 
            on a contstant and continuing basis since his 1987 injury.
 
            Claimant's right leg is shorter than the left.  Claimant 
 
            walks with a limp and this was obvious to the undersigned 
 
            when claimant was in court.  There is considerable comments 
 
            through the years in claimant's medical records since his 
 
            March 21, 1987 letter as to claimant's leg being short and 
 
            the effect of this length of disparity on claimant's back, 
 
            etc.  There have been attempts to use an orthotic device to 
 
            lessen this.
 
            
 
            This agency's experience shows that it is quite common and 
 
            not unusual that where there is a difference or some other 
 
            cause requiring one to limp or use one leg differently over 
 
            the other that this has effects on other parts of claimant's 
 
            body.  Usually and most often when there is a limp or a 
 
            shortness of one leg over the other, one has chronic back 
 
            problems and increased pain not only in the schedule member 
 
            but also in the low back or upper back or neck regions.  The 
 
            undersigned finds that claimant's March 21, 1987 injury 
 
            which resulted in claimant having a shortness in his right 
 
            leg has caused claimant to incur an additional injury to his 
 
            body as a whole and in the area of his back and that the 
 
            original leg injury has gone into the body as a whole.
 
            It is also quite common and usual and this agency's 
 
            experience substantiates the fact that the treatment or 
 
            resolution of one's back problems that may be caused by the 
 
            original injury to a scheduled member cannot usally be 
 
            solved until the injury to the scheduled member is solved.  
 
            If, in fact, there is a shortness of the leg then often the 
 
            effects on claimant's body as a whole cannot be resolved.  
 
            There is evidence that there was an occasion when claimant 
 
            fell or something may have happened that may have at least 
 
            temporarily-wise caused claimant additonal problems or 
 
            aggravation.  This is also understandable and in those 
 
            instances the undersigned finds that claimant's fall if in 
 
            fact it had any effect on claimant was a sequelae of 
 
            claimant's injury of March 21, 1987.
 
            
 
            Normally, if there is impairment to a scheduled member and 
 
            to the body as a whole, then the combined charts are used to 
 
            arrive at a body as a whole figure.  In this case, we do not 
 
            have any body as a whole permanent impairment rating by a 
 
            doctor but this agency has held that an impairment rating is 
 
            not necessary in arriving at an industrial disability nor is 
 
            the deptuty bound by an impairment rating of a scheduled 
 
            injury if there are other obvious factors that show an 
 
            impairment is in fact greater than what might have been 
 
            determined by a medical doctor.  It would appear that 
 
            claimant still has some permanent restrictions.  These for 
 
            the most part have to do with the extent of claimant's 
 
            walking or standing.  It is obvious from the record that 
 
            standing and walking causes claimant's back pain and 
 
            irritation.  There is even evidence that as time goes on, 
 
            this will become worse.  The undersigned is not speculating 
 
            as to the future but is considering the situation as of the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            day of the hearing.
 
            Taking into consideration claimant's injury to his leg of 
 
            March 21, 1987, which also now has caused injury into 
 
            claimant's back, the undersigned finds claimant has an 
 
            impairment to his body as a whole or at least a work injury 
 
            to his body as a whole
 
            
 
            Taking into consideration claimant's prior work history and 
 
            medical history prior to and after his March 21, 1987 
 
            injury; his education; intellectual; emotional and physical 
 
            qualifications; his income prior to and after his injury; 
 
            location and severity of the injury; the length of his 
 
            healing period; this age; motivation; any functional 
 
            impairment; and the fact that defendant employer has 
 
            accommodated claimant on the job, the undersigned finds 
 
            claimant has incurred a 30 percent industrial disability, 
 
            with the disability benefits running from September 24, 
 
            1991.
 
            
 
            The undersigned might note that if in fact he hadn't found 
 
            an industrial disability and that claimant's original 
 
            scheduled injury did not go into his body as a whole, the 
 
            undersigned would have found that claimant had a 40 percent 
 
            permanent impairment to his right lower extremity.
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).
 
            
 
            An injury to a scheduled member which, because of 
 
            aftereffects (or eompensatory change), creates impairment to 
 
            the body as  whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Dailey, 233 Iowa 758, 10 N.W.2d 569.
 
            An injury is the producing cause; the disability, however, 
 
            is the result, and it is the result which is compensated.  
 
            Barton, 253 Iowa 285, 110 N.W.2d 660; Dailey, 233 Iowa 758, 
 
            10 N.W.2d 569.
 
            
 
            If a claimant contends he has industrial disability he has 
 
            the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 Since 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 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 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."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton, 253 Iowa 285, 110 N.W.2d 660.
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
            It is further concluded that:
 
            Claimant incurred a work injury on March 21, 1987, that 
 
            initially injured and caused a resulting 40 percent 
 
            permanent impairment to his right lower extremity, and that 
 
            said injury eventually, because of the effects of the right 
 
            lower extremity injury, resulted in permanent impairment and 
 
            disability to claimant's body as a whole and, therefore, 
 
            caused claimant's original injury to extend beyond the 
 
            scheduled member loss.
 
            Claimant ultimately incurred an industrial disability as a 
 
            result of his March 21, 1987 work injury, resulting in 
 
            claimant incurring a 30 percent industrial disability.
 
            
 
                                       ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That defendant shall pay unto claimant one hundred fifty 
 
            (150) weeks of permanent partial disability benefits at the 
 
            rate of three hundred six and 81/100 dollars ($306.81) 
 
            beginning September 24, 1991.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid.  The parties agreed that defendant 
 
            previously paid seventy-seven (77) weeks of permanent 
 
            partial disability at the rate of three hundred six and 
 
            81/100 dollars ($306.81).
 
            That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this action, pursuant 
 
            to rule 343 IAC 4.33.
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency, pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            Copies to:
 
            
 
            Mr Robert D Fulton
 
            Attorney at Law
 
            P O Box 2634
 
            Waterloo IA 50704-2634
 
            
 
            Mr John W Rathert
 
            Attorney at Law
 
            620 LaFayette St
 
            P O Box 178
 
            Waterloo IA 50704
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803; 1803.1
 
                                                Filed March 22, 1994
 
                                                Bernard J. O'Malley
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DONALD WHITE,  
 
                      
 
                 Claimant, 
 
                     
 
            vs.       
 
                                                 File No. 848803
 
            JOHN DEERE FOUNDRY, 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured,                  D E C I S I O N
 
                 Defendant.     
 
                      
 
            ------------------------------------------------------------
 
            
 
            
 
            1803; 1803.1
 
            Found claimant's work injury to his right leg causing a 
 
            shortening of his leg and severe impairment additionally 
 
            resulted in injury going into claimant's body as a whole 
 
            resulting in claimant incurring a 30% industrial disability.
 
            
 
 
            
 
 
 
                   
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            CHARLES M. HARMS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 849270
 
            HOME HEATING COMPANY,      
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            OHIO CASUALTY INSURANCE CO.,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 23, 1992 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            P.O. Box 339
 
            Davenport, Iowa 52805-0339
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
                
 
 
 
 
 
                                                1804
 
                                                Filed June 30, 1993
 
                                                Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            CHARLES M. HARMS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 849270
 
            HOME HEATING COMPANY,      
 
                                                   A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            OHIO CASUALTY INSURANCE CO.,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
          
 
            
 
            1804
 
            In September 1989, claimant was found to have a 40 percent 
 
            industrial disability.  Claimant, at the time of that 
 
            hearing March of 1989, was starting his own business using 
 
            his transferable skills.  He anticipated income of $8,000 
 
            and 10,000 per year.  Claimant did not succeed in his 
 
            business venture due to his work injury.  He is only able to 
 
            piddle around making miniature wood items which he sells 
 
            through Easter Seals, etc.  He makes little income ($500 in 
 
            1990 and $600 to $800 in 1991) from his woodcraft.  This 57 
 
            year old claimant was found to be permanently totally 
 
            disabled.  He was making $25,000 when injured in 1987.
 
            Claimant had only an economic (loss of income) change of 
 
            circumstances in this review-reopening.  Claimant's medical 
 
            condition had stayed the same.  Defendants' attorney argued 
 
            unsuccessfully that you always need a change in claimant's 
 
            medical condition as a prerequisite to any review-reopening 
 
            case to award any additional industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES M. HARMS,
 
         
 
              Claimant,                              File No. 849270
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         HOME HEATING COMPANY,                       D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       SEP 29 1989
 
         OHIO CASUALTY GROUP,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Charles M. 
 
         Harms, claimant, against Home Heating Company, employer, and Ohio 
 
         Casualty Group, insurance carrier, for workers' compensation 
 
         benefits as a result of an alleged injury on March 23, 1987.  On 
 
         March 22, 1989, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
              
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
              
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
              
 
              1.  On March 23, 1987, claimant received an injury which 
 
         arose out of and in the course of his employment with Home 
 
         Heating.
 
              
 
              2.  Claimant's entitlement to temporary total disability or 
 
         healing period benefits extends from March 25, 1987 through 
 
         August 16, 1987 and from October 30, 1987 through April 30, 1988.
 
              
 
              3.  If permanent disability benefits are awarded, they shall 
 
         begin as of May 1, 1988.
 
              
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $249.01.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              5.  Claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
              
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
              
 
               I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and
 
              
 
              II.  The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability.
 
              
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
              
 
              Claimant testified that he has been a sheet metal worker 
 
         since 1953.  Claimant was last employed as a sheet metal worker 
 
         with Home Heating Company since November of 1983.  Home Heating 
 
         Company is a heating and air conditioning contractor.  In his job 
 
         with Home Heating, claimant fabricated and installed duct work 
 
         and related equipment.  Claimant was laid off from this 
 
         employment after he returned to work following the work injury.  
 
         Claimant testified that he was only able to work four days after 
 
         returning to work and then the pain became too great to continue.  
 
         The management at Home Heating testified that claimant was laid 
 
         off because he refused to work in the shop stating to them that 
 
         he wanted to return to field work, the work he was performing at 
 
         the time of the injury.  The management at Home Heating testified 
 
         that claimant did not complain to them of any physical inability 
 
         to perform the shop work.  The medical records indicate that 
 
         claimant reported to his physicians his inability to perform the 
 
         work at Home Heating upon his return to work.
 
              
 
              In 1983, claimant suffered a low back injury necessitating 
 
         absence from work for approximately 16 months.  In 
 
         interrogatories submitted in litigation stemming from that 
 
         injury, claimant stated that he continued to have difficulties 
 
         lifting, bending, and moving without pain after the injury.  
 
         However, claimant testified at hearing that he recovered from 
 
         this injury without chronic pain or physical limitations and was 
 
         able to return to work as a sheet metal worker.
 
              
 
              Claimant testified that he injured his low back while 
 
         attempting to lift a heavy furnace.  Claimant said that he lost 
 
         all strength in his legs and back and severe pain in the low back 
 
         and legs ensued.  Claimant initially sought both medical and 
 
         chiropractic treatment for this pain but was eventually referred 
 
         to an orthopedic surgeon, Ralph Congdon, M.D.  Dr. Congdon 
 
         reported complaints to him of low back pain radiating into the 
 
         buttocks and right leg down to the foot.  Although he suspected a 
 
         vertebral disc problem, tests were negative for such a problem 
 
         and Dr. Congdon diagnosed only low back strain.  Test results 
 
         indicated hypertrophic arthritic lipping at the L5 level of 
 
         claimant's spine which Dr. Congdon felt was a degenerative 
 
         response or a response to micro-trauma.  Dr. Congdon opined in 
 
         his letter reports that the work injury aggravated this 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         condition.  Dr. Congdon did not indicate whether he felt this was 
 
         a permanent or temporary aggravation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant was treated for a time by a neurosurgeon, Richard 
 
         Roski, M.D.  From his review of the testing performed on 
 
         claimant, Dr. Roski ruled out herniated disc problems and only 
 
         diagnosed lumbar strain.  He stated that claimant reached maximum 
 
         healing in April 1988, and that claimant would also be 
 
         susceptible to low back pain.  He felt that claimant had a five 
 
         percent permanent partial disability.  Dr. Roski felt compelled 
 
         by history presented to him concerning the March 1987 incident to 
 
         causally relate claimant's problems to this injury.  Another 
 
         orthopedic surgeon, William Catalona diagnosed persistent low 
 
         back pain and wrote in his report, "cause?"  Dr. Catalona rated 
 
         claimant as having a 10 percent permanent partial impairment to 
 
         the whole man.  From Cybex testing of claimant's functional 
 
         capacities, it was determined that claimant was physically able 
 
         to lift up to 60 pounds, push or pull up to 70 pounds, but at no 
 
         time should he perform any repetitive twisting, bending or 
 
         stooping.  A local heating and air conditioning contractor in the 
 
         Davenport area testified that sheet metal workers are normally 
 
         required to perform duties consisting of heavy lifting, bending 
 
         and stretching as required and any physical restrictions on a 
 
         person would reduce their hiring potential in the sheet metal 
 
         worker field.
 
              
 
              Claimant stated at hearing that he is 53 years of age and 
 
         has only a tenth grade education.  Lewis Verling, a vocational 
 
         rehabilitation consultant retained by defendants, assisted 
 
         claimant in his return to work.  Verling testified that after 
 
         much discussion and inquiry, claimant felt that his best option 
 
         was to operate as an independent contractor in building 
 
         maintenance and repair.  Verling agreed with this option choice.  
 
         However, Verling testified that he did present other alternatives 
 
         which were rejected by claimant as either unsuitable or too low 
 
         in pay. Claimant earned approximately $7,300 in 1987 and $4,000 
 
         in 1988. Claimant testified that he expects to earn from $8,000 
 
         to $10,000 in 1989 from his contracting business.  Claimant 
 
         admitted that the local Davenport economy was depressed.  
 
         Claimant testified that beginning in January 1969, he operated 
 
         his own heating contracting company but that this company 
 
         eventually "went broke" in 1974 and 1975.
 
              
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants placed claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of his disability, 
 
         especially with reference to the effects of the 1983 prior 
 
         injury. From his demeanor while testifying, claimant is found to 
 
         be credible.
 
              
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, 
 
         Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal 
 
         Co., 288 N.W.2d 181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
              
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
              
 
              In the case sub judice, claimant contends that he has 
 
         suffered permanent disability as a result of the work injury due 
 
         to permanent impairment to the body as a whole.  First, the 
 
         evidence established that claimant does suffer from permanent 
 
         impairment.  Virtually every physician agrees that claimant 
 
         suffers from chronic problems to his low back.  Second, the 
 
         evidence shows the requisite causal connection between the work 
 
         injury and the permanent impairment.  The only physician to state 
 
         clearly the causal connection of claimant's difficulties to the 
 
         work injury was Dr. Roski and his views are the most consistent 
 
         with claimant's credible testimony that he fully recovered from 
 
         the 1983 injury.  Also, Dr. Roski's assessment of five percent 
 
         permanent partial impairment appears to be the most convincing as 
 
         no other treating physician rendered an opinion as to the extent 
 
         of impairment.
 
              
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss or earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors 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.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant's medical condition before the work injury was not 
 
         excellent given his 1983 back problems but given his credible 
 
         testimony that he recovered from this problem, there appears to 
 
         be no ascertainable functional impairments or disabilities prior 
 
         to 1987.  Claimant was able to fully perform all physical tasks 
 
         required of him including heavy lifting and repetitive lifting, 
 
         bending and twisting.  Claimant is restricted from heavy lifting 
 
         over 60 pounds and restricted in his ability to lift, bend and 
 
         twist.  Claimant has credibly testified that he cannot return to 
 
         work as a sheet metal worker without constant pain.
 
              
 
              Claimant is 53 years of age and should be in the most 
 
         productive years of his life.  His disability is more severe than 
 
         would be the case for a younger or even an older individual. 
 
         Claimant has cooperated with vocational rehabilitation 
 
         consultants and is making a reasonable attempt to return to work 
 
         as an independent contractor with the encouragement of the 
 
         vocational counselor.  However, his earnings are very low at the 
 
         present time compared to his earnings at the time of the injury.  
 
         Although claimant's income may increase, his current disability 
 
         should be compensated.  If his business income greatly increases, 
 
         this agency is available upon review-reopening to look at the 
 
         matter again.
 
              
 
              A part of claimant's low income is due to a locally 
 
         depressed economy.  A disability resulting from the state of an 
 
         economy is not compensable.  See Webb v. Lovejoy Construction 
 
         Company, II Iowa Industrial Commissioner Report 430 (Appeal 
 
         Decision 1981).
 
              
 
              Facts which also tend to decrease claimant's award of 
 
         industrial disability were his excessive past experience in 
 
         self-employment in the early 1970's; his refusal to fully examine 
 
         all possibilities of reemployment with vocational counselors; 
 
         and, claimant is, in part, limited in his ability to return to 
 
         work due to an allergy to cold weather which is unrelated to the 
 
         work injury.
 
              
 
              Apart from his low income at the present time, factors which 
 
         indicate that claimant has a significant industrial disability 
 
         were his extensive physical limitations which did not exist 
 
         before the work injury; a refusal of claimant's employer at the 
 
         time of injury to return him to work in any capacity; and, the 
 
         fact that claimant remains underemployed despite a full effort by 
 
         vocational counselors to return him to work.
 
              
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 40 percent loss of 
 
         earning capacity as a result of his work injury.  Based on such a 
 
         finding, claimant is entitled as a matter of law to 200 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 40 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully at 
 
         the time of hearing.
 
              
 
              2.  The work injury of March 23 1987, was a cause of a five 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 60 pounds and no repetitive 
 
         bending, twisting or stooping.  Claimant had no ascertainable 
 
         functional impairments prior to the work injury.  Although 
 
         claimant had a serious back injury necessitating an absence from 
 
         work for several months in 1983, claimant fully recovered from 
 
         this injury and was able to return to work as a sheet metal 
 
         worker.
 
              
 
              3.  The work injury of March 23, 1987, and the resulting 
 
         permanent partial impairment is a cause of a 40 percent loss of 
 
         earning capacity.  Claimant is 53 years of age and has a tenth 
 
         grade education.  Claimant's potential for vocational 
 
         rehabilitation is very low.  Claimant had no ascertainable loss 
 
         of earning capacity prior to the work injury.  Claimant's 
 
         functional limitation prevents him from returning to the job he 
 
         was performing at the time of injury.  Despite good motivation in 
 
         an effort to return to gainful employment, including cooperation 
 
         with a vocational rehabilitation counselor, claimant has only 
 
         been able to start an independent contractor business on his own 
 
         and will earn only $8,000 to $10,000 annually from this activity 
 
         at the present time.  Claimant earned in excess of $25,000 a year 
 
         at the time of the injury.  However, claimant has had experience 
 
         in self-employment in the past for almost five years.  However, 
 
         this experience is somewhat limited as that self-employment 
 
         endeavor failed.  Claimant appears to have transferable skills in 
 
         the management of sheet metal and or maintenance repair 
 
         businesses.  On the other hand, claimant's loss of income is in 
 
         part due to a depressed local economy.
 
              
 
                                CONCLUSION OF LAW
 
                                        
 
              Claimant has established under law entitlement to 200 weeks 
 
         of permanent partial disability benefits.
 
              
 
                                      ORDER
 
                                        
 
              1.  Defendants shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred forty-nine and 01/100 dollars ($249.01) per week from May 
 
         1, 1988.
 
              
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
              
 
              4.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              5.  Defendants shall file an activity report on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 29th day of September, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
              
 
         Copies To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E. 6th St.
 
         P. O. Box 339
 
         Davenport, IA  52805
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            5-1803
 
                                            Filed September 29, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES M. HARMS,
 
         
 
              Claimant,
 
                                                   File No. 849270
 
         vs.
 
                                                A R B I T R A T I O N
 
         HOME HEATING COMPANY,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         OHIO CASUALTY GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803 - Nonprecedential - extent of permanent disability issue.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES M. HARMS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 849270
 
            HOME HEATING COMPANY,         :
 
                                          :         R E V I E W -
 
                 Employer,                :
 
                                          :         O P E N I N G
 
            and                           :
 
                                          :        D E C I S I O N
 
            OHIO CASUALTY INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on May 28, 1992, at 
 
            Davenport, Iowa.  This is a review-reopening proceeding 
 
            wherein claimant seeks additional compensation for permanent 
 
            partial disability benefits.  On September 29, 1989, there 
 
            was an arbitration decision filed which gave claimant a 40 
 
            percent industrial disability.  Claimant is asking for an 
 
            increase in benefits.  The record in the proceedings consist 
 
            of the testimony of claimant, Kent Jayne, and Lewis 
 
            Vierling; joint exhibit 1, claimant's exhibits 1 through 3; 
 
            and, defendants' exhibits A, B and C.
 
            
 
                                      ISSUES
 
            
 
                 The sole issue for resolution is the extent of 
 
            claimant's permanent disability and entitlement to 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 The claimant testified that in March of 1989 he was 
 
            unemployed.  His prior hearing was March 22, 1989.  Claimant 
 
            acknowledged that in March 1989, he was working with Lewis 
 
            Vierling, a rehabilitation consultant, and was pursuing an 
 
            apartment maintenance business.  He was also doing some 
 
            furnace checking around that time and in the spring checked 
 
            air conditioners.  He had anticipated that he would be 
 
            making $8,000 to $10,000 in 1989 from his work.  Claimant 
 
            said Mr. Vierling made up a resume and claimant took it to 
 
            various apartment owners.  He estimated he took it to 
 
            approximately 20.  There was no acceptance of him for 
 
            employment.
 
            
 
                 Claimant indicated he made approximately $1,000 in 1989 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and did some furnace checking into the fall of 1989.  
 
            Claimant did not look for other work in 1989 because he had 
 
            a lot of pain and there was not much going on.  Claimant 
 
            said he wasn't able to do more than three checks of heating 
 
            and air conditioning per day whereas others would normally 
 
            be doing seven or eight per day.  He explained this was due 
 
            to his pain and having to stop because of his condition.  He 
 
            would work a day and then take off a day or so because of 
 
            his physical condition.
 
            
 
                 Claimant related that in 1990, he started a wood 
 
            crafting business.  He had no prior experience in doing this 
 
            or carpenter experience.  He described what he made which 
 
            were basically various wood craft items such as standing 
 
            bears, little benches, rocking chairs, cradles, etc.  These 
 
            would be considered more in the little or miniature size.  
 
            He made these in his garage and worked approximately three 
 
            to four hours per day.  He had to take many breaks due to 
 
            his pain and discomfort.  Claimant said he made less than 
 
            $500 in 1990.  He also indicated he had tried to work for 
 
            Mr. Gieger in the sheet metal business.  He described the 
 
            nature of his work in which he made $12 per hour.  He worked 
 
            three or four days and the back pain from stretching, etc., 
 
            was too much for him.
 
            
 
                 Claimant stated that he retired from the union in 1990 
 
            and got his union pension in July of 1990.  He was eligible 
 
            at age 55 and it amounts to $151 per month.  He will 
 
            continue to receive this pension if he does not do any sheet 
 
            metal work; otherwise, he will lose his pension.
 
            
 
                 Claimant indicated he cooperated with Mr. Vierling and 
 
            that contact was made with Easter Seal to display and sell 
 
            some of his wood craft.  Claimant indicated that he can make 
 
            approximately four baby cradles at a time and sell them for 
 
            $35 each and takes him approximately two days to make one 
 
            working four or five hours a day.  He relates this is due to 
 
            the fact that he can only work so long.  Claimant indicated 
 
            that he tried to work for North Pine Service in 1991, 
 
            attending the cash register while the owners, his friends, 
 
            went on a cruise.  His hours were from 9:00 to 1:00 and he 
 
            had to stand on a hard floor.  He indicated that after 
 
            approximately two weeks doing this, he was very sore.
 
            
 
                 Claimant indicated his gross income in 1991 was $600 to 
 
            $800 from the wood craft articles.  He indicated he could 
 
            not produce more than he sold due to the limited number of 
 
            hours he could work per day.
 
            
 
                 Claimant indicated that in 1992, he tried looking for 
 
            work outside the woodworking business because he ran out of 
 
            money and needed income.  He went to UPS and then to Job 
 
            Service.  He indicated he could only work one day and then 
 
            must be off two.  Job Service recommended he go to 
 
            vocational rehabilitation.  Claimant went there in March and 
 
            they indicated they would get back with him.  He indicated 
 
            the night before the hearing he did receive a letter from 
 
            vocational rehabilitation asking that he contact them.  
 
            Claimant indicated that he cannot work a five day week for 
 
            an employer.  He also emphasized that he is not looking to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            expand his business as he can only make or produce so many 
 
            items.  Claimant indicated that the size of the cradles he 
 
            makes average one and one half by one half feet.  Claimant 
 
            indicated he does not make bigger furniture.
 
            
 
                 Claimant was questioned as to other outlets for his 
 
            goods, such as having shows, etc.  Claimant indicated that 
 
            the Elks helped display the Easter Seal items at around 300 
 
            shows per year.  He also indicated that he did follow up on 
 
            Mr. Vierling's suggestion to include the Easter Seal and 
 
            other outlets and is intending tomorrow to look at a 
 
            catalog.  He said that any catalog sales would have to be 
 
            something that is disassembled.
 
            
 
                 Claimant was questioned as to the length of time in 
 
            which he has not seen Richard A. Roski, M.D.,  beginning 
 
            around March 25, 1988, and not again until May of 1991.  
 
            Claimant emphasized that the doctor indicated to him that he 
 
            could do nothing for him and that surgery could do more harm 
 
            than good.
 
            
 
                 Kent A. Jayne, a vocational economic consultant, 
 
            testified that he was asked to assess claimant's 
 
            employability in light of his disability.  Mr. Jayne 
 
            indicated he addressed what jobs claimant has been precluded 
 
            from as of around March 20, 1992 (Joint Exhibit 1, pages 56 
 
            through 59; Claimant's Exhibit 3).  Mr. Jayne testified 
 
            extensively.  The undersigned believes his reports, as 
 
            reflected in claimant's exhibit 3 or joint exhibit 1, 
 
            represents in a concise manner the summary and conclusions 
 
            that Mr. Jayne made which appeared to the same or similar to 
 
            the conclusions he made pursuant to his testimony at the 
 
            hearing which took place approximately three months after 
 
            his March 1992 report.  The undersigned sees no need to set 
 
            out in any more detail the particulars of his testimony.
 
            
 
                 Mr. Jayne was recalled pursuant to Lewis Vierling 
 
            having testified.  Mr. Jayne specifically clarified some of 
 
            the areas of Mr. Vierling's testimony which referred to 
 
            various job openings.  Mr. Vierling did not know as to the 
 
            job openings how many applications were actually filed.  Mr. 
 
            Vierling had left the impression that there were many jobs 
 
            open that he thought claimant could apply for.  Mr. Jayne 
 
            indicated as an example the situation where Mr. Vierling 
 
            said there were 120 job openings for a general clerk and Mr. 
 
            Jayne indicated that for those openings as of December 31, 
 
            1991, there were, in fact, 750 applicants for those jobs.  
 
            As to shipping and receiving positions where there were 
 
            eight openings as of December 31, 1991, Mr. Jayne added that 
 
            of those there were 133 applications.  In regards to 
 
            maintenance repair in which Mr. Vierling indicated there 
 
            were 37 openings, Mr. Jayne indicated there were, in fact, 
 
            for those jobs 180 applications.
 
            
 
                 Mr. Vierling, a rehabilitation consultant, testified in 
 
            person and also through his deposition taken on march 24, 
 
            1992 (Def. Ex. B).
 
            
 
                 Mr. Vierling indicated that he was hired to assist 
 
            people who have been injured and works primarily with people 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            who have been injured on the job but not exclusively in 
 
            assisting them to return to work (Def. Ex. B, p. 3).  Mr. 
 
            Vierling said he has had two personal contacts and one phone 
 
            contact with the claimant since the March 1989 hearing.  He 
 
            reiterated his goal of assisting claimant in a plan to gain 
 
            employment.
 
            
 
                 There are three reports dated March 9, 1989, January 
 
            27, 1989, and December 15, 1988.  These reports reflect Mr. 
 
            Vierling's opinion at the time of the March 22, 1989 hearing 
 
            that claimant had all the elements to proceed as an 
 
            independent contractor in the plumbing and heating business 
 
            in the Davenport area.  He indicated claimant was in a full-
 
            time occupation which will generate a comparable full-time 
 
            income (Def. Ex. B with attached exhibits 1, 2 and 3).
 
            
 
                 Mr. Vierling's report of April 16, 1992, concludes that 
 
            claimant could make a substantial living ranging from 
 
            $20,000 to $35,000 per year (Jt. Ex. 1, pp. 103-108).  It 
 
            appears that Mr. Vierling is impressed with claimant's 
 
            woodworking abilities which is a newly acquired skill since 
 
            the September 1989 decision.  It appears to the undersigned 
 
            that Mr. Vierling has overemphasized and overestimated the 
 
            capabilities of claimant's woodworking ability from the 
 
            production and economic standpoint.  He has talked to some 
 
            others and bases his judgment on hearsay from others.
 
            
 
                 Mr. Vierling, who also testified at the claimant's 
 
            March 1989 hearing, was referred to the deputy's decision 
 
            which referred to the deputy relating that claimant expected 
 
            to make $8,00 to $10,000 per year in his independent 
 
            contractor heating business.  Mr. Vierling said he had 
 
            estimated at the time of the hearing that claimant would be 
 
            making $8 to $12 per hour, which would be $16,400 to 
 
            $24,960.
 
            
 
                 Mr. Vierling listed several job openings he felt 
 
            claimant could do (Jt. Ex. 1, pp. 106 and 107).  Mr. 
 
            Vierling agreed that the employer would expect claimant to 
 
            work five days a week, 40 hours per week.
 
            
 
                 It appears Mr. Vierling does not have a good idea of 
 
            claimant's condition, ability, the nature of products, and 
 
            claimant's limited ability to produce the products.  Mr. 
 
            Vierling indicated there could be many more outlets for 
 
            claimant's goods if claimant contacted more outlets.  He 
 
            indicated claimant could sell a larger volume of goods.  It 
 
            appears to the undersigned the evidence is substantial that 
 
            claimant can only produce a limited amount of goods due to 
 
            his medical condition.  He can sell what he is able to make 
 
            through his limited ability to the outlets he currently has 
 
            contact with, one of which is mainly Easter Seal.  Claimant 
 
            could not supply any more outlets.
 
            
 
                 The undersigned does not accept Mr. Vierling's 
 
            conclusion.  Mr. Vierling has missed the boat again.  He 
 
            said he did not know how many applicants applied for the job 
 
            openings he listed in his report (Jt. Ex. 1, pp. 106, 107).  
 
            Setting out a long list of profile-computer generated labor 
 
            market jobs isn't getting claimant a job.  Mr. Vierling's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            statistics are made less impressive when one compares the 
 
            job applications in respect to the job openings.  Mr. Jayne, 
 
            of course, had the figures on many of the openings as far as 
 
            those who applied.  Mr. Vierling had no such figures.
 
            
 
                 Diana Cox testified through her deposition on April 23, 
 
            1992, which is claimant's exhibit 1.
 
            
 
                 Alan Geiger, testified through his deposition on April 
 
            23, 1992 (Cl. Ex. 2).  Mr. Geiger has been in the heating 
 
            and air conditioning business since 1964.  The last four 
 
            years he has been in business for himself.  He related the 
 
            various heating and air conditioning contractors he worked 
 
            for prior to going into business for himself.  He is 53 
 
            years old.  He has done residential and commercial work in 
 
            this industry.  He gets his business by word of mouth and 
 
            tries to get residential and light commercial business.  He 
 
            indicated he has employed no one within the last two years 
 
            on a full-time basis.  He said there is a demand for people 
 
            in sheet metal work but not for the average sheet metal 
 
            worker.  He indicated you have to be good at this type of 
 
            job.  Mr. Geiger indicated a person would have to be able to 
 
            work by themselves and solve their own problems, be in good 
 
            physical condition, have the ability to climb ladders, be 
 
            able to work in different types of weather and be able to 
 
            move weight in a construction environment.  He further 
 
            indicated that you have to bend a lot, pick up things and do 
 
            a lot of overhead work.  He said that if you are doing a lot 
 
            of residential work, a lot of it is picking up something and 
 
            putting it overhead and holding and fastening it.  He gave 
 
            examples such as the ducts in the basement.  He also 
 
            indicated that he would have to move a furnace to the 
 
            basement.
 
            
 
                 Mr. Geiger testified he knows claimant and has known 
 
            him since the late 1960's.  He referred to four other 
 
            heating contractors that he worked for along with the 
 
            claimant.  He indicated at those times they were hired out 
 
            of the union hall.  He said that claimant was a good, smart 
 
            sheet metal worker.  Claimant was his foreman a couple of 
 
            times at different jobs.  Mr. Geiger said that claimant 
 
            tried working for him approximately one and one-half years 
 
            ago as he indicated he needed some help for a couple of days 
 
            and needed some things made.
 
            
 
                 Mr. Geiger said that claimant did work but claimant was 
 
            not as quick as he used to be and he quit as claimant 
 
            couldn't make it two or three hours cutting metal and 
 
            handling sheets.  He indicated that a big pair of snips are 
 
            used to cut the sheet.  He physically observed claimant when 
 
            he was attempting to do his work.  He indicated claimant was 
 
            old and tired and he could not pick up a full four by ten 
 
            sheet of sheet metal anymore.  He said this is one of the 
 
            standard sheet metal sizes.  He said claimant worked parts 
 
            of three days.  He said at that time he had more work for 
 
            claimant to do.  Mr. Geiger said to check a furnace out 
 
            requires bending stooping and squatting.  He indicated you 
 
            have to squat down in front of the furnace to see in it in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            order to work on it.  He said that to service air 
 
            conditioning units and compressors would require bending, 
 
            stooping and twisting.  Mr. Geiger said it is pretty 
 
            essential that in order to perform the job, you would need a 
 
            back that has good range of motion and no pain.
 
            
 
                 Richard A. Roski, M.D., testified through his 
 
            deposition on March 19, 1992 (Def. Ex. A).  Dr. Roski, a 
 
            neurosurgeon, first saw claimant in December of 1987, and 
 
            originally treated him through March 25, 1988.  Dr. Roski 
 
            subsequently saw claimant once in 1991 and once in 1992.  
 
            Pursuant to his 1991 examination, he noted that claimant was 
 
            having increasing difficulty with pain across the low back 
 
            but on examination had a slight decrease in range of motion.  
 
            The doctor could not explain at the time of his May 2, 1991 
 
            report why claimant's symptoms had not improved to a more 
 
            satisfactory level over such a prolonged period of time.  
 
            Dr. Roski testified that comparing the last time he saw 
 
            claimant on May 25, 1988 and the two occasions he saw 
 
            claimant since them, namely May 2, 1991 and February 27, 
 
            1992, he did not find any difference in claimant's physical 
 
            condition other than that loss of slight range of motion 
 
            referred to earlier.  As far as his 5 percent impairment 
 
            rating in 1988 compared to now, the doctor indicated the 
 
            information upon which the rating is based is really 
 
            unchanged.  The only difference might be the more current 
 
            updated AMA Guides that might give a 7 percent instead of a 
 
            5 percent.
 
            
 
                 The doctor indicated that he is not contending that 
 
            claimant has improved since 1988.  The doctor indicated that 
 
            claimant's neurological exam remains substantially 
 
            identical.  He doesn't think he is worsening and he doesn't 
 
            doubt the fact that claimant still hurts.  Basically, Dr. 
 
            Roski indicated that he saw no change in claimant's current 
 
            condition as compared to claimant's condition in 1988.  The 
 
            undersigned sees no sense in elaborating more on Dr. Roski's 
 
            testimony.  Claimant seems to agree that there has been no 
 
            medical or physical change in claimant's condition and is 
 
            not contending that this is where claimant's cause for 
 
            review-reopening lies.
 
            
 
                 The sole issue is the extent of claimant's permanent 
 
            disability and entitlement to additional disability 
 
            benefits.  It is very clear from the arbitration decision of 
 
            September 29, 1989, that claimant was anticipating making 
 
            $8,000 to $10,000 per year in the independent contractor 
 
            business that he was able to start up.
 
            
 
                 There was substantial evidence at the review-reopening 
 
            hearing that the claimant is unable to continue in the sheet 
 
            metal business as an independent contractor using the 
 
            transferable skills that he had when he was making $25,000 a 
 
            year at the time of his injury.  There has been two 
 
            vocational rehabilitation consultants involved in this 
 
            matter.  Mr. Vierling was involved in the original case and 
 
            has also been involved to some extent and testified at this 
 
            review-reopening hearing.  Mr. Kent Jayne became involved 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            only in this review-reopening.
 
            
 
                 Mr. Vierling was very specific when the question came 
 
            up as to claimant's $8,000 to $10,000 he would be able to 
 
            make at the time of his original hearing.  Mr. Vierling 
 
            indicated that he anticipated at that time an $8 to $12 per 
 
            hour which would mean that at $8 per hour Mr. Harms would be 
 
            making at least in excess of $16,000.  It is obvious Mr. 
 
            Vierling was completely off at the time of the original 
 
            hearing and it seems that he is similarly situated through 
 
            his testimony at this review-reopening.  Mr. Vierling seems 
 
            to be overwhelmed by what he considers a new skill of the 
 
            claimant, namely, making miniature items.  He seems to feel 
 
            that if the claimant searched out more outlets for his 
 
            goods, he could increase his income.  Mr. Vierling was 
 
            repeatedly asked on cross-examination and still seemed not 
 
            to understand the nature of the question when he was asked, 
 
            if one could only produce a limited number of goods and 
 
            already had one or two outlets that took everything he made, 
 
            what good would it do to have several other outlets?  In 
 
            other words, how could the claimant supply these other 
 
            outlets when he is having a hard time trying to provide 
 
            enough for the other two outlets, one of which was mainly 
 
            the Easter Seal?  The undersigned believes Mr. Vierling is 
 
            as far off in his analysis in this review-reopening as he 
 
            was at the original hearing.
 
            
 
                 Defendants strongly argue that there must be a change 
 
            in physical and medical condition of a claimant as a 
 
            mandatory requirement before there can even be a 
 
            consideration of a review-reopening.  Defendants contend 
 
            that monetary, financial, loss or gain of income is not 
 
            sufficient standing alone.  The undersigned has a very 
 
            difficult time determining where the defendants are coming 
 
            from.  Loss of income is one of the several items to 
 
            consider in determining industrial disability.  Defendants' 
 
            attorney argues that this agency is drifting from what he 
 
            believes to be the law and seems to be very critical of this 
 
            agency when it puts that much weight on the loss of income 
 
            when there is no medical change of circumstances.
 
            
 
                 The undersigned finds no need to expound on this issue 
 
            as to this complaint of defendants' attorney as agency 
 
            decisions well support the fact that a change of income 
 
            standing alone can be considered and has an effect on 
 
            determining any additional disability of the claimant.  
 
            Defendants' attorney discounted the increase in or the 
 
            decrease in income as having any effect on industrial 
 
            disability if there is no change in a claimant's medical and 
 
            physical condition.  It would seem useless to have Mr. 
 
            Vierling testify on behalf of defendants if the increased 
 
            income was not a factor in defendants' mind.
 
            
 
                 The undersigned finds that the work that the claimant 
 
            is doing making these miniature items is more like a hobby.  
 
            It keeps claimant occupied to some extent so as to prevent 
 
            claimant from completely wasting and yet like most hobbies 
 
            they can be time consuming but economically unproductive.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            They do give one a sense of accomplishment and helps 
 
            psychologically.  The undersigned finds that claimant is 
 
            totally permanently disabled.
 
            
 
                 The undersigned further finds that claimant's medical 
 
            condition has basically stayed the same or similar as it was 
 
            at the time of his March 22, 1989 hearing.  The undersigned 
 
            finds the substantial change in claimant's industrial 
 
            disability is basically the loss of income.  The undersigned 
 
            therefore finds that claimant's 40 percent loss of earning 
 
            capacity that existed on March 22, 1989 has now increased to 
 
            100 percent and that claimant's additional benefits will 
 
            begin on March 3, 1992.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant has an additional loss of income of 60 
 
            percent.  This is in addition to the 40 percent of earning 
 
            capacity that he had at the time of the hearing of March 22, 
 
            1989 and the decision of September 29, 1989.
 
            
 
                 Claimant is totally and permanently disabled as a 
 
            result of his March 23, 1987 injury and is entitled to have 
 
            his benefits begin March 3, 1992, at the rate of $249.01.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant compensation for 
 
            permanent total disability at the stipulated rate of two 
 
            hundred forty-nine and 01/100 dollars ($249.01) per week 
 
            during the period of claimant's disability commencing on 
 
            March 3, 1992.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Michael W Liebbe
 
            Attorney at Law
 
            116 E 6th St
 
            P O Box 339
 
            Davenport IA 52805
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Mr E J Giovannetti
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1804
 
                                               Filed June 23, 1992
 
                                               Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES M. HARMS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 849270
 
            HOME HEATING COMPANY,         :
 
                                          :         R E V I E W -
 
                 Employer,                :
 
                                          :         O P E N I N G
 
            and                           :
 
                                          :        D E C I S I O N
 
            OHIO CASUALTY INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1804
 
            In September 1989, claimant was found to have a 40% 
 
            industrial disability.  Claimant at the time of that 
 
            hearing, March of 1989, was starting his own business using 
 
            his transferable skills.  He anticipated income of $8,000 
 
            and $10,000 per year.  Claimant did not succeed in his 
 
            business venture due to his work injury.  He is only able to 
 
            piddle around making miniature wood items which he sells 
 
            through Easter Seals, etc.  He makes little income ($500 in 
 
            1990 and $600 to $800 in 1991) from his woodcraft.  This 
 
            57-year-old claimant was found to be permanently totally 
 
            disabled.  He was making $25,000 when injured in 1987.
 
            Claimant had only an economic (loss of income) change of 
 
            circumstances in this review-reopening.  Claimant's medical 
 
            condition had stayed the same.  Defendants' attorney argued 
 
            unsuccessfully that you always need a change in claimant's 
 
            medical condition as a prerequisite to any review-reopening 
 
            case to award any additional industrial disability.  
 
            Defendants' attorney's pot shots at this agency as drifting 
 
            from the "law" were taken only at face value.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER,
 
         
 
         
 
         SCOTT SEIBERLING
 
         
 
              Claimant,..
 
         
 
         VS.
 
                                                 File No. 849386
 
         FOREST CARPENTRY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         IOWA SMALL BUSINESS
 
         EMPLOYERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
                                                                
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by Scott 
 
         Seiberling, claimant, against Forest Carpentry and Iowa Small 
 
         Business Employers, insurance carrier, for workers' compensation 
 
         benefits as a result of an alleged injury on March 12, 1987.  On 
 
         May 31, 1989 a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations was approved and accepted as a part of 
 
         the record of this case at the time of hearing.  Oral testimony 
 
         and written exhibits were received during the hearing from the 
 
         parties.  The exhibits offered into the evidence are listed in 
 
         the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.An employer/employee relationship existed between Forest 
 
         Carpentry and claimant at the time of the alleged injury.
 
         
 
              2.On March 12, 1987 claimant received an injury which has 
 
         arose out of and in the course of his employment at Forest 
 
         Carpentry.
 
         
 
         
 
         
 
         SEIBERLING V. FOREST CARPENTRY
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3. Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from  this proceeding shall be $218.45.
 
         
 
                                      ISSUES
 
                                        
 
              The parties submitted the following issues for determination 
 
         at this proceeding:
 
         
 
              I. Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
              II. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
              The issue of the extent of claimant's entitlement to 
 
         permanent partial disability benefits was bifurcated from this 
 
         proceeding.
 
         
 
              There apparently is no dispute as to entitlement to 
 
         temporary total disability or healing period benefits at this 
 
         point in time, however, claimant asked for such benefits in the 
 
         event of future treatment.
 
         
 
                              STATEMENT OF THE FACTS
 
                                        
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision. .Any conclusions about the evidence received 
 
         contained in the following statements should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Forest Carpentry from 
 
         August 4, 1986 until May 20, 1987.  He stated that his duties 
 
         consisted of woodworking activity in the fabrication of wood 
 
         moldings for windows and doorways.            Claimant testified 
 
         that he was required to work in this job with woodworking 
 
         machines which required the repetitive use of his hands and arms 
 
         to hold material cut during the machining process, especially a 
 
         new and unique machine developed by Don Friend, the owner of 
 
         Forest Carpentry, to manufacture a special molding.  Claimant 
 
         testified that he primarily used his right hand in this work as 
 
         he is right handed.  In late 1986 and early.1987, claimant 
 
         testified that. he began to experience significant pain at the 
 
         base of his right ring finger while performing his job.  He then 
 
         sought treatment from Mark Kirkland, D.0.., an orthopaedic 
 
         surgeon.  Although he is not board certified, this physician is 
 
         eligible for certified by the American Board of Orthopaedic 
 
         Surgeons.  Dr. Kirkland diagnosed a seed ganglion.  After 
 
         conservative treatment failed to relieve claimant's symptoms, 
 
         this
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         SEIBERLING V. FOREST CARPENTRY 
 
         Page 3
 
         
 
         
 
         ganglion was surgically removed by Dr. Kirkland on April 9,  
 
         1987.   Claimant was of off work from March 27, 1987 through 
 
         April 26, 1987 for treatment of this ganglion at which time Dr. 
 
         Kirkland released claimant to return to work.
 
         
 
              Claimant testified that his pain continued after his return 
 
         to work but he did not return to Dr. Kirkland following his 
 
         release on April 22, 1987 while he was working for Forest 
 
         Carpentry.  Claimant then quit Forest Carpentry and began working 
 
         for Brothers Construction, as a leadman or working foreman.   
 
         Claimant testified that his ring finger continued to bother him 
 
         but when this occurred, he did not perform physical work.  He 
 
         said that Brothers Construction knew of his hand problems.
 
         
 
              On November 18, 1987, claimant returned to Dr. Kirkland 
 
         complaining that the ganglion, had returned.  Dr. Kirkland then 
 
         diagnosed a reoccurrence of the ganglion.  Initially, the doctor 
 
         attempted to dissolve the ganglion with injections but this did 
 
         not help.  Dr. Kirkland now recommends that claimant undergo 
 
         another surgical removal of the reoccurrent ganglion.
 
         
 
              Claimant testified that his physical work at Brothers 
 
         Construction involved general carpentry work and the construction 
 
         of buildings and houses including interior trim, house framing, 
 
         landscape work, and occasional concrete pouring and troweling.  
 
         He did operate an air operated nail gun for framing and trimming 
 
         work.  He also used hand tools such as a circular saw and hammer.  
 
         Claimant testified that this work was not as repetitive or as 
 
         physical as the work at Forest Carpentry due to the nature of the 
 
         work and that at Brothers he was also involved in non-physical 
 
         activity such as set up and the management of his crew.  Don 
 
         Friend the owner of Forest Carpentry, testified that he knew 
 
         claimant was having problems with his right hand while he was 
 
         working for him but did not think that the problems were serious 
 
         enough to warrant termination of his employment.  He felt that 
 
         the work at Brothers was more strenuous than the work performed 
 
         in his shop.
 
         
 
              Claimant testified that he now has left the employment of 
 
         Brothers Construction and has started his own carpentry shop 
 
         which does business not only with Brothers Construction but with 
 
         Forest Carpentry.  He admitted that he moved into his new house 
 
         three years and has done repairs on this house over the -last one 
 
         and one half years.  Also claimant stated that woodworking is one 
 
         of his hobbies on weekends.
 
         
 
              To date, defendants have denied responsibility for the 
 
         second ganglion  which they state is due to claimant's work at 
 
         Brothers.   On January 19, 1988, Dr. Kirkland issued the 
 
         following letter report to the defendants:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         SEIBERLING V. FOREST CARPENTRY
 
         Page 4
 
         
 
         
 
                   I did receive a note today stating that Scott's 
 
              reoccurrence would  not be covered by the workman's 
 
              compensation carrier.  In any type of ganglion there is 
 
              always a 10% possibility, that the ganglion can reoccur.  I 
 
              still feel that this problem now is related to his original 
 
              problem.  I feel that Mr. Seiberling is being treated 
 
              unfairly.  I feel that the situation should be reassessed...
 
              
 
         (Exhibit 1),
 
         
 
              R.W. Hoffman, M.D., a retired industrial physician who has 
 
         been the company doctor for several local manufacturers testified 
 
         at hearing.  He is also the father of defense counsel in this 
 
         case.  Dr. Hoffman is board certified in general surgery and 
 
         testified that he has a considerable amount of experience with 
 
         ganglions and ganglion surgery over the last 40 years.  It was 
 
         Dr. Hoffman's view that from his review of the file that 
 
         defendants are justified in denying the claim with reference to 
 
         the reoccurrence of ganglion and he said without a physical 
 
         examination of claimant, he cannot accept the reoccurrent 
 
         ganglion theory by Dr. Kirkland.  He did not believe that Forest 
 
         Carpentry was liable for the second ganglion, if there was any, 
 
         as claimant only returned to work for fifteen days prior to his 
 
         termination from Forest Carpentry.  Dr. Hoffman stated that 
 
         framing work at Brothers Construction was probably more stressful 
 
         on claimant's hands than the work at Forest Carpentry.     He 
 
         stated that he had observed the work at Forest Carpentry shortly 
 
         before the hearing in this case.  Dr. Hoffman also points out 
 
         that the record is very confused as Dr. Kirkland in several 
 
         office notes speaks both of right ring finger ganglion and a 
 
         right long , finger ganglion.  Finally, Dr. Hoffman stated that 
 
         the reoccurrence of ganglions is a very rare event.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Note: A creditability is necessary to this decision as 
 
         defendants place claimant's creditability at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying claimant will be 
 
         found creditable.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish, that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury. Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SEIBERLING V. FOREST CARPENTRY 
 
         Page 5
 
         
 
         
 
         of permanent physical impairment or permanent limitation in work 
 
         Activity.     However in some instances I such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.  Blacksmith v. All-American.- Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co.,.288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be counched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).      
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability. .Blacksmith, 290 N.W.2d 348, 354.      In the case of 
 
         a preexisting condition, an employee is not entitled to recover 
 
         for the results of a preexisting injury or disease but can 
 
         recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodvear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              In the case sub judice, we  have two physicians who disagree 
 
         on which employer should be responsible for the injury.  However, 
 
         it is quite clear that both believe that there is an industrial 
 
         cause for this condition whether or not the ganglion in November 
 
         1987 is the same one treated by Dr. Kirkland in April 1987.
 
         
 
              With reference to the issue as to whether the ganglion is 
 
         related or not to the original injury, Dr. Kirkland's views must 
 
         be given the greater weight primarily because of his more 
 
         extensive clinical involvement with claimant's case.  Although 
 
         Dr. Hoffman may have considerable experience with ganglions, he 
 
         is not an orthopaedic surgeon who has treated claimant.  He has 
 
         not examined claimant.  The fact that Dr. Hoffman is related to 
 
         defense counsel played no
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SEIBERLING V. FOREST CARPENTRY
 
         Page 6
 
         
 
         
 
         role in the undersigned decision to place greater weight on the 
 
         views of Dr. Kirkland.
 
         
 
              The fact that Dr. Kirkland's records are confused as to 
 
         which finger,is involved can be resolved as a typographical error 
 
         given claimant's testimony and a full reading of Dr. Kirkland's 
 
         office notes.  The error of referring to the long finger, rather 
 
         than the ring finger first occurred in Dr. Kirkland's office 
 
         notes of April 20, 1987, only ten days after the first surgery.  
 
         This error continued when claimant returned in November 18, 1987.  
 
         It was not corrected by Dr. Kirkland until the office note of 
 
         November 25, 1987 when he began to refer back to the ring finger.
 
         
 
              Admittedly, claimant's work at Brothers probably contributed 
 
         to some degree to the reoccurrent ganglion.  However, to be 
 
         compensable claimant need not show that the work injury is the 
 
         only cause, he need only show that the original injury was at 
 
         least one of the significant factors precipitating disability.  
 
         Dr. Kirkland's views clearly establishes this fact.  And with 
 
         reference to paying compensation, apportionment may be possible 
 
         but only if Brothers Construction is a party to this 
 
         proceeding.if claimant refuses to bring in Brothers Construction, 
 
         the only way Forest Carpentry can seek contribution from Brothers 
 
         is to voluntarily pay benefits pursuant to an Iowa Code section 
 
         85.21  agency order which allows the defendant employer to bring 
 
         other employers under the theory of contribution.  This has not 
 
         happened in this case.  Therefore, Forest Carpentry is "on the 
 
         hook" so to speak for the entire disability and medical treatment 
 
         causally connected to the injury.
 
         
 
              According to the pleadings, claimant is not seeking payment 
 
         of temporary total disability for times off work to date and none 
 
         will be ordered.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant is found to be a creditable witness.  His 
 
         appearance while testifying indicated that he is testifying 
 
         truthfully.
 
         
 
         .    2.  On March 12, 1997, claimant suffered an injury to the 
 
         right ring finger which arose out of and in the course of his 
 
         employment with Forest Carpentry.  This injury consisted of the 
 
         development of a seed ganglion caused by repetitive carpentry 
 
         work.
 
         
 
              3.  The work injury of March 12, 1987 was a cause of period 
 
         of dis- ability from work beginning on March 27, 1987 through 
 
         April 26, 1987 at which time claimant returned to work.  During 
 
         this time, claimant received treatment of the work  injury 
 
         consisting of various treatment modalities such
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         SEIBERLING V. FOREST CARPENTRY
 
         Page 7
 
         
 
         
 
         as limitations on activity, medications for pain and 
 
         inflammation, injection therapy and surgery.
 
         
 
              4.  The work injury of March 12, 1987 is a cause of a 
 
         reoccurrence of the right ring finger ganglion.which was a 
 
         condition diagnosed in November 1987 by the treating orthopaedic 
 
         surgeon, Mark Kirkland, D.O. This reoccurrence is attributable to 
 
         the original injury and may also be caused in part to claimant's 
 
         work for Brothers Construction following the employment with 
 
         Forest Carpentry.
 
         
 
              5.  Claimant's reoccurrent ganglion in November 1987 
 
         requires further treatment and Mark Kirkland is the most 
 
         appropriate physician to deliver this treatment given his past 
 
         clinical experience with claimant and his qualifications.
 
         
 
              6.  The $30.00 charge for claimant's last office visit with 
 
         Dr. Kirkland set forth in the prehearing report is a reasonable 
 
         charge for reasonable and necessary treatment of the March 12, 
 
         1987 work injury and related condition.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Claimant has established under law entitlement to 4 3/7 
 
         weeks of either temporary total or healing period benefits which 
 
         has already been paid to claimant.  Claimant has established 
 
         entitlement to treatment from defendant for his occurring right 
 
         finger ganglion.
 
         
 
                                      ORDER
 
                                        
 
              1. Defendants shall provide at their expense all treatment 
 
         modalities recommended by Mark Kirkland, D.O.., for the 
 
         reoccurring ganglion of the right ring finger which includes any 
 
         necessary surgery and consultive referrals.
 
         
 
              2. Defendants shall pay to claimant temporary total 
 
         disability or healing period benefits for medical verified 
 
         absences from work necessitated by treatment of this reoccurring 
 
         ganglion condition and recovery from any surgeries necessitated 
 
         by this condition.
 
         
 
              3. Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by him otherwise, defendants shall pay the provided 
 
         directly or with lawful late penalties imposed upon the Account 
 
         by the medical services provider.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
         SEIBERLING V. FOREST CARPENTRY
 
         Page 8
 
         
 
         
 
              5. Defendants shall :file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              6. This matter shall be set back into assignment for a 
 
         prehearing conference and hearing on the issue of the extent of 
 
         claimant's entitlement to permanent partial permanent disability 
 
         benefits,.if any.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tom L. Drew 
 
         Mr. Channing L. Dutton 
 
         Attorneys at Law 
 
         West Towers Office 
 
         1200 35th St., Ste. 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                          5-1808
 
                                            Filed.December 29, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT SEIBERLING,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 849386
 
         FOREST CARPENTRY,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA SMALL BUSINESS
 
         EMPLOYERS,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         5-1808 -  Nonprecedential causal connection issues
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         1803; 1806
 
         Filed December 18, 1991
 
         MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JUDITH M. FUNK,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 849569
 
         MERCY HOSPITAL OF COUNCIL     :
 
         BLUFFS, IOWA,                 :      A R B I T R A T I O N
 
                                       :
 
              Employer,                :         D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         AETNA CASUALTY INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
                                       :
 
         JUDITH M. FUNK,               :
 
                                       :
 
              Claimant,                :
 
                                       :         File No. 857598
 
         vs.                           :
 
                                       :      A R B I T R A T I O N
 
         MERCY HOSPITAL OF COUNCIL     :
 
         BLUFFS, IOWA,                 :         D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         1803; 1806
 
         Claimant sustained two work related back injuries while she was 
 
         employed as a staff nurse.  After the first injury, claimant 
 
         returned to work without restrictions.  She performed the same 
 
         duties, at the same rate of pay.
 
         After six weeks claimant sustained a second work related injury 
 
         to her back.  She had two less than successful lumbar 
 
         laminectomies performed.  Claimant's treating physician imposed 
 
         lifting and bending restrictions on her.  Claimant was unable to 
 
         return to her duties as a staff nurse.  Defendant terminated 
 
         claimant.  They refused employer to hire her for another position 
 
         which did not necessitate lifting.
 
         Two rehabilitation specialists were unable to find a position for 
 
         claimant despite claimant's excellent qualifications.  Claimant 
 
         was not employed on the date of her hearing.
 
         Held:  Claimant sustained a 50 percent industrial disability as a 
 
         result of her second injury.