5-3202
 
                                                  Filed July 30, 1992
 
                                                  Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            JAMES W. COSPER,              :
 
                                          :
 
                 Claimant,                :      File No. 855687
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            SECOND INJURY FUND,           :      D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-3202
 
            Claimant's disability from a right arm and shoulder injury 
 
            and claimant's disability from a left arm and shoulder 
 
            injury equaled claimant's current cumulative industrial 
 
            disability.  Because claimant's current cumulative 
 
            industrial disability does not exceed the combined 
 
            disabilities resulting from the two previous injuries, 
 
            claimant is not entitled to second injury fund benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES W. COSPER,              :
 
                                          :        File No. 855687
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by James W. 
 
            Cosper, claimant, against the Iowa Second Injury Fund, 
 
            defendant, for workers' compensation benefits as a result of 
 
            alleged injuries on August 15, 1982 and June 24, 1987.  On 
 
            October 23, 1991, 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 con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to disability benefits from the Second Injury Fund.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility of witnesses testifying at hearing did 
 
            not appear to be an issue in this case.  All appeared to be 
 
            testifying truthfully.
 
            
 
                 Claimant has worked for Rockwell Graphic Systems, or 
 
            what is commonly referred to as Goss, for over 20 years and 
 
            continues in this employment at the present time.  Claimant 
 
            has had several jobs at the Cedar Rapids Goss plant but has 
 
            been in his current job of final assembly for the last sev
 
            eral years.  This job requires occasional heavy lifting and 
 
            considerable use of his shoulders and arms in the assembly 
 
            of large metal equipment.  Claimant's current rate of pay is 
 
            $16.18 per hour and he works a considerable amount of over
 
            time.  The claim herein involves an alleged arm/shoulder 
 
            injury beginning in 1982.  Claimant's primary treating 
 
            orthopedic surgeon for all of his shoulder/arm problems has 
 
            been Fred Pilcher, M.D., who is board certified.  Claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            fellow employees at the Goss plant all testified that 
 
            claimant is considered a good employee in the plant.
 
            
 
                 Claimant first suffered permanent partial impairment to 
 
            the right arm as a result of right shoulder problems begin
 
            ning in 1982.  Dr. Pilcher eventually diagnosed the problem 
 
            as right shoulder impingement syndrome and claimant under
 
            went two corrective surgeries.  In 1983, Dr. Pilcher per
 
            formed a surgical release and excision of the coracoacromial 
 
            ligament of the right shoulder.  When this failed to improve 
 
            claimant's condition as anticipated, Dr. Pilcher operated 
 
            again on the right shoulder and performed a partial 
 
            acromionectomy or an excision of a portion of clavicle 
 
            including the acromioclavicular joint.  As a result of his 
 
            right shoulder problems and the corrective surgeries, Dr. 
 
            Pilcher opined in 1983 that claimant suffered a 14 percent 
 
            permanent partial impairment to the arm or eight percent 
 
            permanent partial impairment to the body as a whole.
 
            
 
                 In May 1987, claimant began having problems with his 
 
            left shoulder after performing some drilling work at Goss.  
 
            This condition was also diagnosed by Dr. Pilcher as impinge
 
            ment syndrome.  Claimant then underwent a single surgery 
 
            which, according to Dr. Pilcher, was a combination of those 
 
            procedures he performed in the two prior surgeries to 
 
            claimant's right shoulder.  In Dr. Pilcher's most recent 
 
            evaluation of claimant, Dr. Pilcher states that claimant 
 
            suffers from a 24 percent permanent partial impairment to 
 
            the arm or a 14 percent permanent partial impairment to the 
 
            whole body as a result of his left shoulder problem.  Dr. 
 
            Pilcher opines that this is the result of the alleged work 
 
            injury of June 24, 1987, due to his work at Goss and that 
 
            this injury caused the permanent partial impairment he 
 
            found.  Another orthopedic surgeon, John Koch, M.D., an 
 
            associate of Dr. Pilcher, opines that claimant's problems 
 
            are due to degenerative arthritis aggravated by injury and 
 
            rates claimant's permanent partial impairment to the left 
 
            shoulder similar to Dr. Pilcher.  Dr. Pilcher also opines in 
 
            his most recent evaluation that claimant's right shoulder 
 
            problems have worsened since 1983 and that currently his 
 
            right shoulder permanent partial impairment is now roughly 
 
            the same as for the left shoulder impairment.
 
            
 
                 Based upon the views of the primary treating physician, 
 
            Dr. Pilcher, it is found that claimant suffered an injury 
 
            and permanent partial impairment to his right arm and shoul
 
            der in 1982.  According to Dr. Pilcher's most recent deposi
 
            tion testimony, this was an injury to both the arm and to 
 
            the body as a whole.  The anatomical structures modified by 
 
            Dr. Pilcher in his two surgeries on the right shoulder 
 
            involve structures attached to the humerus or upper arm bone 
 
            which constitutes the ball of the ball and socket shoulder 
 
            joint as well as the clavicle and rotator cuff which help to 
 
            form the socket of the ball and socket shoulder joint.
 
            
 
                 Also, based primarily upon the views of the primary 
 
            treating orthopedic surgeon, Dr. Pilcher, it is found that 
 
            the second injury of June 24, 1987, arose out of and in the 
 
            course of the claimant's employment at Rockwell Graphic 
 
            Systems and that this injury was a cause of permanent par
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            tial impairment to the left arm and to the shoulder or body 
 
            as a whole.  This finding is again based upon the discus
 
            sions set forth above as to the nature of the injury to both 
 
            the right and left shoulder from not only the injury itself 
 
            but from corrective surgeries.
 
            
 
                 With reference to the issue of loss of earning capacity 
 
            as a result of both of these injuries, claimant is middle 
 
            aged.  Although he is not a high school graduate, he has 
 
            earned his GED.  Claimant's past employment consists of 
 
            shipping clerk, ditch digger, sales clerk and machine opera
 
            tor.  At Goss, he worked in jobs involving steel cutting, 
 
            painting, forklift operation and materials handling prior to 
 
            his subassembly and final assembly work.  Claimant's physi
 
            cal restrictions severely limit the type of work for which 
 
            he is best suited given his past work experience and educa
 
            tion.  Claimant's employment circumstances after each of the 
 
            two injuries in this case are similar in that after recovery 
 
            he returned to the same job he held at the time of the 
 
            injury without loss of income.  Claimant is left handed and 
 
            disability caused by the second injury appears much more 
 
            significant.  Also, Dr. Pilcher more strongly today recom
 
            mends a change of jobs than he did in 1984 as a result of 
 
            the left shoulder injury.
 
            
 
                 Therefore, the injury or permanent partial impairment 
 
            of August 15, 1982, is found to have caused a five percent 
 
            loss of earning capacity.  The injury and resulting perma
 
            nent partial impairment of June 24, 1987, is found to have 
 
            been a cause of an additional 15 percent loss of earning 
 
            capacity.
 
            
 
                 It is further found that as a result of the combined 
 
            effect of both injuries and permanent partial impairment 
 
            referred to above, claimant has suffered to date a 20 per
 
            cent loss of earning capacity.  According to Dr. Pilcher, 
 
            claimant is restricted from repetitive overhead use of his 
 
            arms and shoulders and generally from heavy work.  These 
 
            restrictions clearly are applicable to each of the two 
 
            injuries individually as a combined effect.  Such a restric
 
            tion clearly interferes with the work he has performed in 
 
            the past.  However, despite these restrictions and 
 
            claimant's pain, claimant has been able to remain working at 
 
            Goss due to accommodations made by his fellow employees and 
 
            allowed by Goss management.  Claimant has not as yet suf
 
            fered any loss of earnings or potential earnings from either 
 
            injury.  Claimant has high plant seniority and although Goss 
 
            has laid off many employees recently, the plant remains in 
 
            operation today and claimant remains employed.  As it will 
 
            be discussed in the conclusions of law section, it would be 
 
            improper to speculate at this time what may or may not hap
 
            pen in the future should claimant lose his job at Goss.
 
            
 
                 Therefore, claimant has not shown by a preponderance of 
 
            the evidence that the combined effect of the two shoulder 
 
            injuries has resulted in a greater loss of earning capacity 
 
            than the sum of the individual disabilities caused by each 
 
            injury.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                   I.  The Fund raises an affirmative defense that the 
 
            condition complained of is not an injury compensable under 
 
            Chapter 85 of the Code but an occupational disease under 
 
            Chapter 85A of the Code.  The Fund argues that by defini
 
            tion, a compensable injury is not an injury.  Iowa Code sec
 
            tion 61.5(b).  As claimant has not plead occupational 
 
            disease, the Fund asks that claimant's claim be dismissed.
 
            
 
                 Assuming legal theories, as opposed to operative facts, 
 
            must be plead before they can be applied by this agency, the 
 
            undersigned does not feel that 85A is available to the Fund 
 
            as an affirmative defense.  Although the undersigned has 
 
            ruled in one instance that a particular overuse syndrome 
 
            qualified as an occupational disease, Atkins v. Monarch 
 
            Mfg., File No. 816825, Arbitration Decision dated March 27, 
 
            1990, it was also held in that case that any condition or 
 
            injury could qualify under the criteria set forth in 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            It was not held categorically that carpal tunnel syndrome or 
 
            any other particular condition would always qualify as an 
 
            occupational disease.
 
            
 
                 Although another fellow deputy commissioner in Hoffman 
 
            v. Second Injury Fund, File No. 831136 and 869798, 
 
            Arbitration Decision, August 10, 1990, ruled that Chapter 
 
            85A is available as a defense to a Fund claim, this decision 
 
            is not binding upon the undersigned.  Workers' compensation 
 
            laws are humanitarian in purpose and are to be interpreted 
 
            liberally in favor of the injured worker.  Caterpillar 
 
            Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981).  It 
 
            would be contrary to the purposes of the workers' compensa
 
            tion law to allow defendants to use Chapter 85A as a defense 
 
            and a means to deny compensation when 85A was not raised as 
 
            a legal theory by the claimant.  The occupational disease 
 
            provisions of Chapter 85A are solely designed as an addi
 
            tional humanitarian benefit to injured workers' or an addi
 
            tional theory or means to recover workers compensation bene
 
            fits.  It cannot be used in a defensive posture by defen
 
            dants.  Iowa Code section 85A.16 states that the provisions 
 
            of Chapter 85 so far as applicable and not inconsistent with 
 
            85A, shall apply in occupational disease cases.  Iowa Code 
 
            section 85.26(4) clearly states that no claim or proceedings 
 
            for benefits shall be maintained by any person other than 
 
            the injured worker.  Consequently, a claim under 85A can 
 
            only be maintained by the injured employee, not any defen
 
            dant or the Second Injury Fund.
 
            
 
                 However, even if it was a valid defense, the Fund 
 
            failed to carry its burden of proof to show that the condi
 
            tion herein is peculiar to the industry involved or more 
 
            prevalent at Goss than in other places of employment, criti
 
            cal conditions precedent to any showing of an occupational 
 
            disease under McSpadden.
 
            
 
                 With reference to the claim of work injury, claimant 
 
            has the burden of proving by a preponderance of the evidence 
 
            that claimant received an injury which arose out of and in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the course of employment.  The words "out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time and place and circumstances of the injury.  
 
            See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 
 
            (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  An employer takes an employee 
 
            subject to any active or dormant health impairments, and a 
 
            work connected injury which more than slightly aggravates 
 
            the condition is considered to be a personal injury.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591 (1960) and cases cited therein.
 
            
 
                 In the case sub judice, a work injury in June 1987 was 
 
            found.  This was held to be an injury to both the arm and 
 
            the shoulder.  Consequently, this injury constitutes an 
 
            injury and permanent impairment to the body as a whole 
 
            because it involves a loss or loss of use of more portions 
 
            of the human body than those specifically scheduled in Iowa 
 
            Code subsections 85.34(2)(a-t).  See Farmland Foods, Inc. v. 
 
            Ten Eyck, Court of Appeals Decision filed January 29, 1986; 
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); 
 
            Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 
 
            161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 
 
            N.W.2d 569 (1943).
 
            
 
                 As a result of the work injury of June 1987 and the 
 
            prior injury in 1982, claimant seeks disability benefits 
 
            from the Iowa Second Injury Fund under Iowa Code sections 
 
            85.63 through 85.69.  This Fund was created to compensate an 
 
            injured worker for permanent industrial disability resulting 
 
            from the combined effect of two separate injuries to speci
 
            fied members of the body.  For purpose of such a scheme of 
 
            compensation was to encourage employers to hire or retain 
 
            handicapped workers.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978).  There are three requirements 
 
            under the applicable statutes to invoke second injury fund 
 
            liability.  First, there must be a permanent loss or loss of 
 
            use of one hand, arm, foot, leg or eye.  Secondly, there 
 
            must be a permanent loss or loss of use of another such mem
 
            ber or organ through a compensable subsequent injury.  
 
            Third, there must be a permanent industrial disability to 
 
            the body as a whole arising from both the first and second 
 
            injuries which is greater in terms of relative weeks of com
 
            pensation than the sum of the scheduled allowances for those 
 
            injuries.  If there is a greater industrial disability due 
 
            to the combined effects of the prior loss and the secondary 
 
            loss than equals the value of the prior and secondary losses 
 
            combined, then the fund will be charged with the difference.  
 
            See Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 
 
            1989).
 
            
 
                 The Second Injury Fund is furthermore not relieved of 
 
            liability simply because one or both of the injuries may 
 
            also extend into the body as a whole.  Id.  However, when 
 
            either the first or second injuries extend into the body as 
 
            a whole, there is to be an apportioning process of the vari
 
            ous resulting industrial disabilities and respective liabil
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            ities.  A determination of industrial disability must be 
 
            made for each injury individually.  The employer at the time 
 
            of the second injury is liable for the difference, if any, 
 
            between the industrial disability of the second injury and 
 
            the industrial disability as a result of the combined effect 
 
            of both injuries.  The fund is then liable for the differ
 
            ence less the industrial disability found for the first 
 
            injury.  See Second Injury Fund of Iowa v. Braden, 459 
 
            N.W.2d 467, 470-71 (Iowa 1990).
 
            
 
                 In the case sub judice, claimant failed to demonstrate 
 
            by the greater weight of the evidence that the combined 
 
            effect of both injuries resulted in a greater industrial 
 
            disability then the industrial disability caused by the two 
 
            prior injuries individually.  Consequently, there is no lia
 
            bility for the second injury fund.
 
            
 
                 In the Findings of Fact, it was stated that it would be 
 
            improper to speculate what would happen if claimant lost his 
 
            job at Goss.  It has been held by a former industrial com
 
            missioner that consideration of a potential job loss is not 
 
            a proper determinative factor in industrial disability.  It 
 
            is only claimant's present not future earning capacity which 
 
            is measured in awarding permanent disability benefits.  
 
            Umphress v. Armstrong Rubber Co., Appeal Decision filed 
 
            August 27, 1987.  While persons may disagree with that deci
 
            sion, the decision is a binding agency precedent upon the 
 
            undersigned deputy commissioner.
 
            
 
                                      order
 
            
 
                 1.  The claim against the Second Injury Fund in this 
 
            matter is denied and the claim is dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Benjamin W. Blackstock
 
            Attorney at Law
 
            201 Cedar Plaza
 
            385 Collins Rd NE
 
            Cedar Rapids  IA  52402
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            500 MNB Bldg
 
            P O Box 2107
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803; 2203
 
                                               Filed December 23, 1991
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES W. COSPER,              :
 
                                          :        File No. 855687
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Second Injury Fund claim dismissed as there was no 
 
            showing that the combined effect of the two injuries was 
 
            more than the two injuries individually.
 
            
 
            
 
            2203
 
            
 
                 Held that the occupational disease law, Chapter 85A, is 
 
            not available as an affirmative defense.  Only claimant may 
 
            raise a claim of occupational disease.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            EDWARD J. KOCAL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 855809
 
            DEPT. OF NATURAL RESOURCES,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 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 proposed decision of 
 
            the deputy filed April 30, 1990 is affirmed and is adopted 
 
            as the final agency action in this case, with the following 
 
            additional analysis:
 
            Defendants assert that Deputy Walshire erred in failing to 
 
            recuse himself prior to the hearing.  A prior agency 
 
            decision exists which addresses this issue:
 
            
 
                    Defendants filed a motion seeking a recusal of 
 
                 Deputy Walshire from hearing the case.  Defendants 
 
                 pointed out Iowa Administrative Code section 
 
                 343-4.38 (17A), which provides:
 
                  Any individuals presiding over contested cases 
 
               before the industrial commissioner shall disqualify 
 
              themselves from conducting a hearing on the merits or 
 
            deciding any contested case in which such individual has 
 
            substantial prior contact or interest or is so related to or 
 
            connected with any party or attorney thereto so as to give, 
 
            in the opinion of the person presiding, even the appearance 
 
            of impropriety for such individual to conduct such hearing 
 
                               or decide such case.
 
            
 
                    Rule 4.38 was cited by defendants in their 
 
                 motion for recusal.  However, 4.38 deals with 
 
                 self-disqualification by the hearing officer.  By 
 
                 its language, the rule is invoked only when the 
 
                 deputy subjectively concludes that an appearance 
 
                 of impropriety exists.  Deputy Walshire concluded 
 
                 that no appearance of impropriety existed. 
 
            
 
                 The actual nature of the defendants' motion for 
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 recusal was a claim of bias.  As a motion for 
 
                 involuntary disqualification, defendants' motion 
 
                 should not have been brought under rule 4.38, but 
 
                 under Iowa Code section 17A.17(4).  That section 
 
                 states:
 
                A party to a contested case proceeding may file a 
 
            timely and sufficient affidavit asserting disqualification 
 
            according to the provisions of subsection 3, or asserting 
 
            personal bias of an individual participating in the making 
 
            of any proposed or final decision in that case.  The agency 
 
             shall determine the matter as part of the record in the 
 
            case.  When an agency in these circum-stances makes such a 
 
              determination with respect to an agency member, that 
 
            determina-tion shall be subject to de novo judicial review 
 
                 in any subsequent review proceeding of the case.
 
            
 
                    Iowa Code 17A.17(4) also refers to a timely 
 
                 affidavit alleging grounds for disqualification.  
 
                 A motion for recusal filed on the morning of the 
 
                 scheduled hearing cannot be viewed as timely, 
 
                 especially in light of the requirement of 
 
                 17A.17(4) that the agency, presumably someone 
 
                 other than the deputy who is alleged to be biased, 
 
                 determine the matter.  Deputy Walshire's union 
 
                 position and activities were known to the 
 
                 defendants well in advance of the date of the 
 
                 hearing.  Regardless of the merits of the motion 
 
                 for recusal based on Deputy Walshire's union 
 
                 position, it was not properly raised in this 
 
                 instance, and will not be addressed on appeal.
 
            
 
            Miller v. Woodard State Hospital School, Appeal Decision, 
 
            filed May 31, 1990.
 
            Next, the defendants contend that the deputy erred in 
 
            awarding claimant permanent partial disability benefits as a 
 
            result of his May 26, 1987 work injury.  The deputy 
 
            correctly points out in the statement of the facts that 
 
            William Catalona, M.D., was claimant's treating physician.  
 
            The opinions of Dr. Catalona, claimant's treating physician, 
 
            will be given greater weight.  
 
            That defendants pay the cost of this action including the 
 
            costs of transcription of the arbitration hearing.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Edward J. Kocal
 
            1808 North Pine
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Davenport, Iowa 52804
 
            CERTIFIED & REGULAR MAIL
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed December 27, 1991
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            EDWARD J. KOCAL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 855809
 
            DEPT. OF NATURAL RESOURCES,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed April 30, 
 
            1990, with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDWARD J.KOCAL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                File No. 855809
 
         DEPT. OF NATURAL RESOURCES,
 
                                             A R B I T R A T I 0 N
 
               Employer,
 
                                                D E C I S I O N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Edward Kocal, 
 
         claimant, against the Iowa Department of Natural Resources, an 
 
         agency of the state of Iowa (hereinafter referred to as DNR), 
 
         defendant, for workers' compensation benefits as a result of an 
 
         alleged injury on May 26, 1987.  On November 29, 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 May 26, 1987, claimant received an injury which arose 
 
         out of and in the course of employment with DNR.
 
         
 
              2. Claimant is not seeking further temporary total 
 
         disability or healing period benefits.
 
         
 
         
 
         
 
         KOCAL V. DEPT. OF NATURAL RESOURCES
 
         Page 2
 
         
 
         
 
              3. If permanent disability benefits are awarded herein they 
 
         shall begin as of June 9, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4. Claimant's.rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $189.27.
 
         
 
              5. All requested medical benefits have been or will be paid 
 
         by defendant.
 
         
 
              The prehearing report also contains a stipulation that the 
 
         parties agreed that the disability is a scheduled member 
 
         disability to the thumb.  This is inconsistent with claimant's 
 
         expressed views during the hearing wherein he stated that he felt 
 
         comfortable with the views of his treating physicians which had 
 
         provided ratings beyond the thumb.  He also stated that he should 
 
         be given more than what was paid by the defendant.  As claimant 
 
         is not represented by counsel, it was felt the written 
 
         stipulation is not indicative of claimant's views and is 
 
         rejected.  The undersigned will award what the law provides apart 
 
         from this stipulation.
 
         
 
                                      ISSUES
 
         
 
              The only issue submitted by the parties was the extent of 
 
         claimant's entitlement to weekly benefits for permanent 
 
         disability.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed  and considered in 
 
         arriving at this decision.  Any conclusions about the evidence 
 
         received contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant is a fishery technician and continues to work in 
 
         this job at the present time.  Claimant injured his left thumb 
 
         when an outboard motor he was operating came down on his thumb 
 
         severing the tip of the first phalanx just below the nail.  The 
 
         severed portion of the thumb could not be re-attached to the 
 
         thumb.  Claimant underwent two surgeries as a result of treatment 
 
         for this injury.  The first surgery attached the end of his thumb 
 
         to his middle or second finger to graft skin on the end of the 
 
         severed portion.  The next surgery detached this thumb from the 
 
         middle finger and grafted skin from claimant's thigh onto  the  
 
         donor  portion  of
 
         
 
         
 
         
 
         KOCAL V. DEPT. OF NATURAL RESOURCES
 
         Page 3
 
         
 
         
 
         the middle finger.  Claimant then underwent physical therapy and 
 
         was released to return to work on June 9, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant describes his disability to the thumb as a loss of 
 
         length to the thumb, loss of use of the nail, numbness and 
 
         sensitivity to cold, bleeding, sensitivity of the skin grafts, 
 
         and generally a loss of dexterity.  Claimant also expresses 
 
         problems with the graft site of the middle finger due to bleeding 
 
         or when bumped or strained.  He also has a scar on the thigh but 
 
         stated that he has no problems with the scar other than 
 
         appearance.
 
         
 
              Two physicians have rated claimant's disability.  The 
 
         treating physician, William Catalona, M.D., rates claimant under 
 
         the AMA rating guides as suffering from a 55 percent permanent 
 
         partial impairment to the thumb due to the amputation of 50 
 
         percent of the distal phalange and "hypaesth" of the pulp pad and 
 
         shortened nail.  He also gives a 5 percent permanent partial 
 
         impairment rating to the donor "index" finger due to bleeding 
 
         problems.  This, Dr. Catalona states, is equivalent to 23 percent 
 
         of the hand.  Anthony D'Angelo, Jr., D.O., also rated claimant's 
 
         disability from a single examination.  Dr. D'Angelo indicates 
 
         that claimant is suffering from a 60 percent permanent partial 
 
         impairment to the thumb due to a loss of the tip, cold 
 
         intolerance, weak pinch strength and occasional pain.  Dr. 
 
         D'Angelo also agrees with the 5 percent rating of Dr. Catalona to 
 
         the "index" finger for bleeding problems at the donor site.  Dr. 
 
         D'Angelo equates his rating to a 25 percent permanent partial 
 
         impairment to the hand or to a 23 percent permanent partial 
 
         impairment to the left arm.
 
         
 
              Claimant was paid 15 weeks of permanent partial disability 
 
         benefits prior to hearing.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  Permanent partial disabilities are 
 
         classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W. 2d. 660 (1961)
 
         
 
         
 
         
 
         KOCAL V. DEPT. OF NATURAL RESOURCES
 
         Page 4
 
         
 
         
 
         "Loss of use" of a member is equivalent to 'loss' of the member.  
 
         Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 
 
         (1922).  Pursuant to Code section 85.34(2)(u) the industrial 
 
         commissioner may equitably prorate compensation payable in those 
 
         cases wherein the loss is something less than that provided for 
 
         in the schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 
 
         (Iowa 1969).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Various impairment ratings have been provided in this case 
 
         and the question arises as to which among the various schedules 
 
         are we to use.  First, it has long been held that it is the situs 
 
         of the injury, not the situs of the disability or the effects of 
 
         the injury, which determines which schedule will be utilized.  
 
         Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
         (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              In this case, the injury is limited to the thumb and the 
 
         middle or long finger.  The finger was involved as a result of 
 
         the healing process in which the finger was utilized to graft 
 
         additional skin on the severed stump of the thumb.  Why both 
 
         physicians referred to this finger as the "index" finger rather 
 
         than the second finger is unknown.  In this agency's specialized 
 
         experience, the first finger is normally referred to as the index 
 
         finger.  Iowa Code section 85.34(n) and Websters Dictionary also 
 
         refers to the first finger as the index finger.  Photographs 
 
         submitted into evidence clearly show involvement of the middle or 
 
         second finger in the skin graft process.
 
         
 
              The opinions of Dr. D'Angelo, the treating physician, will 
 
         be given the greater weight.  Therefore, it will be found that 
 
         claimant is suffering from a 55 percent permanent partial 
 
         impairment to the left thumb due to a 50 percent loss of the 
 
         distal phalange, numbness and sensitivity of the stump, and loss 
 
         of the nail.  Based upon such a finding, claimant is entitled as 
 
         a matter of law to 33 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34 (2) (a) which is 55 
 
         percent of 60 weeks, the maximum allowable number of weeks for a 
 
         loss of use of the thumb in that subsection.
 
         
 
              Also, it will be found that claimant suffers from a 5 
 
         percent permanent partial impairment to the second or middle 
 
         finger.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 1.5 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(c) which.is 5 percent 
 
         of 30 weeks, the maximum allowable number of weeks for loss of 
 
         the second finger in that subsection.  Claimant is therefore 
 
         entitled to a total of 34.5 weeks of permanent
 
         
 
         
 
         
 
         KOCAL V. DEPT. OF NATURAL RESOURCES
 
         Page 5
 
         
 
         
 
         partial disability benefits.  Why the defendant only paid 15 
 
         weeks is not clear in the record.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. The work injury of May 26, 1987 is the cause of a 55 
 
         percent permanent partial impairment to the left thumb and a 5 
 
         percent permanent partial impairment to the left middle or second 
 
         finger.  The thumb was originally only involved but the middle 
 
         finger was subsequently injured by necessity to accomplish a skin 
 
         graft to the thumb.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2. Claimant had no ascertainable functional impairments to 
 
         these effected portions of the left hand prior to the work 
 
         injury.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to 34.5 weeks 
 
         of permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              1. Defendants shall pay to claimant thirty-four point five 
 
         (34.5) weeks of permanent partial disability benefits at the rate 
 
         of one hundred eighty-nine and 27/100 dollars ($189.27) per week 
 
         from June 9, 1987.
 
         
 
              2. Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for permanent 
 
         partial disability 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 costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              5. Defendants shall file an activity report upon payment of 
 
         this award as requested by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         KOCAL V. DEPT. OF NATURAL RESOURCES
 
         Page 6
 
         
 
         
 
              Signed and filed this 30th day of April, 1990.
 
         
 
         
 
         
 
         
 
                                         LARRY P.WALSHIRE,
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         
 
         Mr Edward J Kocal
 
         1808 N Pine
 
         Davenport IA 52804
 
         CERTIFIED & REGULAR MAIL
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr Robert Wilson
 
         Assistant Attorney General
 
         Tort Claims
 
         Hoover Building
 
         Des Moines IA 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                      5-1803 
 
                                                      Filed April 30, 1990
 
                                                      LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDWARD J. KOCAL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 855809
 
         DEPT. OF NATURAL RESOURCES,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Extent of permanent disability scheduled member.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RICHARD OTT,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 856040
 
            ZILGE APPLIANCE CENTER,       :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by claimant 
 
            Richard Ott, against his employer, Zilge Appliance Center, 
 
            and Employers Mutual, insurance carrier.
 
            
 
                 Claimant sustained an injury on June 23, 1987 which 
 
            arose out of and in the course of his employment.  The 
 
            hearing was held before the undersigned deputy industrial 
 
            commissioner on September 28, 1994 in Mason City Iowa.
 
            
 
                 The record in this case consists of the testimony of 
 
            claimant; Linda Ott, claimant's wife; Jeff Johnson, a 
 
            vocational rehabilitation specialist; and Janet Burnett, 
 
            service manager for defendant employer; and joint exhibits A 
 
            through L.  The case was considered fully submitted at the 
 
            close of the hearing. 
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issue for 
 
            resolution:
 
            
 
                 The nature and extent of claimant's entitlement to 
 
            permanent partial disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Richard Ott, was born on February 14, 1949.  
 
            At the time of the hearing he was 45 years of age, married 
 
            with three children, only one of whom resides with him and 
 
            his wife.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant dropped out of high school in the ninth grade. 
 
            In 1970, claimant obtained a GED through a home study 
 
            course.  In 1970 or 1971, claimant took home electronic and 
 
            TV repair instruction through a correspondence course 
 
            sponsored by Devry Institute of Technology in Chicago, 
 
            Illinois.  He received a certificate of successful 
 
            completion in 1976.  
 
            
 
                 Claimant also has attended North Iowa Community College 
 
            in Mason City where he learned refrigeration repair.  
 
            Claimant's refrigeration repair class lasted approximately 
 
            six weeks and at the end of the class he received a 
 
            certificate of successful completion. 
 
            
 
                 Claimant has also attended training sessions dealing 
 
            with general appliance repair sponsored by Amana, Maytag and 
 
            GE.
 
            
 
                 After leaving high school, claimant worked for 
 
            approximately one year as a farm hand performing general 
 
            farm labor.
 
            
 
                 In 1967 claimant went to work for Oliver Tractor 
 
            Manufacturing as a spray painter of tractor housings.  
 
            Claimant would spray paint the tractor housing as it came 
 
            off of the assembly line in the foundry.
 
            
 
                 Claimant left Oliver in 1971, after suffering numerous 
 
            layoffs, for steadier employment at Mason City Brick and 
 
            Tile as a kiln setter and general yard worker.  Claimant was 
 
            responsible for loading tile into the kiln to be fired as 
 
            well as driving a fork lift and general manual labor in the 
 
            brick yard.
 
            
 
                 After Mason City Brick and Tile closed down in 1977, 
 
            claimant began his employment with defendant employer as a 
 
            service technician for home appliances in October of 1977.
 
            
 
                 When claimant began his employment he was responsible 
 
            for making service calls on customers in their homes.  
 
            Defendant employer provided claimant with a van to drive 
 
            from his home to the customer's home.  Claimant was 
 
            responsible for repairing a wide variety of home appliances 
 
            including, refrigerators, microwaves, window air 
 
            conditioners, washers and dryers.
 
            
 
                 At the time of his injury claimant was on a service 
 
            call at a customer's home.  He was trying to move an old 
 
            refrigerator so that he could access the back of the 
 
            refrigerator in order to repair it.  Claimant testified that 
 
            he was alternately pushing and pulling on the back and front 
 
            of the refrigerator in order to break the footings loose so 
 
            that he could push the appliance away from the wall. 
 
            
 
                 Claimant was unable to move the refrigerator, so he 
 
            left the customer's house to go to another service call in 
 
            Charles City, Iowa.  Claimant testified that about 20 to 30 
 
            minutes after leaving the customer's home he began to 
 
            experience pain in his neck and right arm as well as a 
 
            severe headache.  Prior to his injury claimant testified 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that he had no problems with his neck, right shoulder or 
 
            right arm.  Claimant finished the service call in Charles 
 
            City and returned to the shop at which time he reported his 
 
            injury to defendant employer.
 
            
 
                 Claimant finished out the rest of the day at the shop 
 
            but the pain in his right arm, shoulder and neck continued 
 
            to worsen so the next day, June 24, 1987, claimant sought 
 
            treatment from James K. Coddington, M.D.  Dr. Coddington 
 
            prescribed pain medication and took claimant off of work for 
 
            one week.  Claimant's pain persisted and Dr. Coddington was 
 
            unable to discover the source of the pain so he referred 
 
            claimant to Raymond L. Emerson, M.D.
 
            
 
                 Claimant was first seen by Dr. Emerson on September 8, 
 
            1987.
 
            Dr. Emerson prescribed physical therapy and a TENS unit in 
 
            an attempt to diminish claimant's pain. (Joint Exhibit E)
 
            
 
                 Claimant's condition did not improve with physical 
 
            therapy or the TENS unit.  Claimant requested an evaluation 
 
            by doctors at Mayo Clinic in Rochester Minnesota, which was 
 
            eventually performed on November 11, 1987.  The doctors at 
 
            the Mayo Clinic were unable to find the source of claimant's 
 
            ongoing neck, right shoulder and arm pain. (Jt. exs. E, F). 
 
            
 
                 Dr. Emerson then arranged for an MRI of claimant's neck 
 
            which eventually revealed what Dr. Emerson thought was a 
 
            bulging disc at C5-6. (Jt. Ex. E).  Dr. Emerson referred 
 
            claimant to David W. Beck, M.D., a neurologist, who 
 
            determined on July 27, 1989 that the MRI revealed a bulging 
 
            disc at C4-5, especially on the right. (Jt. Ex. C)
 
            
 
                 Dr. Beck prescribed conservative treatment in an 
 
            attempt to alleviate claimant's pain.  Conservative 
 
            treatment included having claimant wear a cervical collar 
 
            while he slept and during the daytime.  Conservative 
 
            treatment was unsuccessful and claimant subsequently 
 
            underwent anterior cervical diskectomy and fusion at C3-4 on 
 
            August 15, 1989.  After the surgery claimant continued to 
 
            have right arm, right shoulder and neck pain; as well as 
 
            headaches. (Jt. Ex. C)
 
            
 
                 Eventually, claimant returned to work on February 19, 
 
            1990.  Since February of 1990 claimant has worked at most 25 
 
            to 30 hours per week. (Jt. Ex. B).
 
            
 
                 When claimant returned to work in February 1990, Dr. 
 
            Beck placed limited work restrictions on his activities.  
 
            Claimant was not allowed to raise his arms above shoulder 
 
            level or to engage in repetitive neck motions. (Jt. Ex. C)
 
            
 
                 From February of 1990 until November 2, 1990 claimant 
 
            had periodic after-care visits with Dr. Beck. (Jt. Ex. C).  
 
            On November 2, 1990 Dr. Beck concluded that claimant had 
 
            reached maximum medical improvement and pursuant to the AMA 
 
            guidelines he determined that claimant had a 10 percent 
 
            functional impairment rating.  Claimant did not visit Dr. 
 
            Beck again until June 10, 1992. (Jt. Ex. C)
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 On August 25, 1992 Dr. Beck believed that claimant 
 
            could benefit from a pain clinic at the Sister Kenney 
 
            Institute.  Claimant never did attend the pain clinic 
 
            because the insurance carrier refused to pay for it.
 
            
 
                 After claimant's return to work in February of 1990, he 
 
            was unable to ever get back to working an eight-hour day.  
 
            Claimant testified that the most he can work is five hours 
 
            per day, after those five hours have passed, claimant stated 
 
            that working is just too painful.   
 
            
 
                 Maggie Covey, a rehabilitation consultant, met with 
 
            claimant soon after his surgery on November 28, 1989 to 
 
            discuss claimant's return to work.  Defendant employer was 
 
            responsive and adaptable to claimant's gradual return to 
 
            work.  (Jt. Ex I).  By June 1, 1990 claimant had progressed 
 
            to the point were he was able to work four to five hours 
 
            daily, but he told Maggie Covey that after working four to 
 
            five hours his energy was "used up." (Jt. Ex. I).  Claimant 
 
            has never been able to return to working more than five 
 
            hours per day.  
 
            
 
                 Beginning in April of 1994 claimant was evaluated by 
 
            another rehabilitation consultant, Jeff Johnson, in an 
 
            attempt to increase claimant's work hours up to eight per 
 
            day. (Jt. Ex. J).  Mr. Johnson's report of April 29, 1994 
 
            indicates that in 1994 claimant was working without breaks 
 
            from 8 a.m. to 1 p.m. every day.  Defendant employer was 
 
            willing to accommodate whatever break schedule would be 
 
            required for claimant to perform an eight-hour day.  
 
            Claimant has turned down both the opportunity to work every 
 
            Saturday to increase his work hours and the opportunity to 
 
            arrive at work at 7:30 a.m. daily to open the store. (Jt. Ex 
 
            J).
 
            
 
                 On cross-examination claimant admitted that the reason 
 
            he doesn't want to open the store at 7:30 a.m., even though 
 
            it would not require any additional physical work for him, 
 
            is because it would interfere with his driving his daughter 
 
            to school every day.  It also appears that working later 
 
            than 1:00 p.m. every day would interfere with claimant's 
 
            picking up his daughter from school. 
 
            
 
                 Claimant's physical restrictions in 1994 are those 
 
            reflected in Dr. Beck's November 2, 1990 report and include:  
 
            no repetitive flexing of his neck or right shoulder and 
 
            leaving it up to the claimant as to how many hours he can 
 
            work. (Jt. Ex. J).  
 
            
 
                 On June 15, 1994, Dr. Beck stated that claimant 
 
            returned to him for a follow-up and he subsequently 
 
            recommended that "he stay at five hours a day in the shop."  
 
            (Jt. Ex. C).
 
            
 
                 On July 26, 1994 claimant was evaluated by Thomas A. 
 
            Carlstrom, M.D., a neurologist.  While Dr. Carlstrom agreed 
 
            with Dr. Beck's 10 percent impairment rating he also stated 
 
            "I would think that this patient should be able to work full 
 
            time, though I understand that he can't, and I have no 
 
            explanation for the discrepancy between my opinion and real 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            life." (Jt. Ex. K, p. 2) No medical professional has been 
 
            able to determine why claimant suffers pain that prevents 
 
            him from working any longer than five hours.
 
            
 
                 Defendant employer has been very cooperative and 
 
            accommodating with claimant's attempted return to work.  
 
            Defendant employer has purchased a mat for claimant to stand 
 
            on while he works as well as air tools for claimant to use.  
 
            If claimant is able to increase his hours of work defendant 
 
            employer has committed to purchasing a pneumatic scissor 
 
            lift for claimant to use. (Jt. Ex. J).  Defendant employer 
 
            also indicated that they would allow claimant to have a 
 
            recliner in the shop if it would make it easier for him to 
 
            take breaks.  Claimant currently takes no breaks once he 
 
            begins his work day, an attempt to increase the length of 
 
            claimant's work day by mandating that he take a morning 
 
            break as well as a lunch break was unsuccessful; claimant 
 
            ended up working less hours than when he wasn't taking a 
 
            break. 
 
            
 
                 Before his injury Claimant was paid $10.70 per hour.  
 
            Claimant is currently paid $6.00 per hour.  Janet Burnett 
 
            testified that claimant is paid less per hour now than prior 
 
            to his injury because the employer is not allowed to charge 
 
            as much for his work since he no longer makes service calls 
 
            to customers' homes.  In claimant's deposition, taken July 
 
            8, 1993, he states that defendant employer is keeping his 
 
            wages low in order to help him settle his workers' 
 
            compensation claim.  (Jt. Ex. A, p. 29).  Jeff Johnson 
 
            estimated that if claimant were to seek alternative 
 
            employment at this time his hourly wage would be between 
 
            $6.00 and $7.50 per hour.  (Jt Ex. J)
 
            
 
                 Defendant employer has offered to increase claimant's 
 
            wages if he returns to working full time, that is eight 
 
            hours per day.  
 
            
 
                 When claimant is working in the shop there is always 
 
            someone who can do any lifting that claimant feels he cannot 
 
            perform.  On some service calls to a customer's home, no 
 
            lifting would be required of claimant.  Janet Burnett 
 
            explained that on occasion an older customer will need a 
 
            microwave repaired and the customer doesn't want to bring 
 
            the microwave into the shop.  Claimant refuses to go on 
 
            service calls of the above nature, even though no lifting 
 
            would be required because he says driving would be a problem 
 
            for him.  Yet claimant and his wife were able to share 
 
            driving responsibilities when they drove on vacation to 
 
            Texas, Las Vegas and Wyoming.  Claimant is under no 
 
            restrictions against driving, he just chose not to go on 
 
            service calls.
 
            
 
                 On cross-examination claimant admitted that he has no 
 
            problem performing the work required of him by defendant 
 
            employer.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The only issue to be determined is the nature and 
 
            extent of claimant's entitlement to permanent partial 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            disability benefits.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  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.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 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.
 
            
 
                 At the time of his injury claimant was 38 years old and 
 
            he had been employed with defendant employer for almost ten 
 
            years.
 
            
 
                 Claimant has suffered an actual loss of earnings as a 
 
            result of his reduction in pay and as a result of his 
 
            inability to work a 40-hour work week.  Claimant's wages 
 
            have dropped from $10.70 per hour to $6.00 per hour and 
 
            claimant's hours have dropped from at least 40 hours per 
 
            week to no more than 25 or 30 hours per week.  Some of the 
 
            reduction in hours is attributable to claimant's refusal to 
 
            work any additional hours because it would not be convenient 
 
            for his schedule.  It is also apparent that claimant 
 
            believes that some of his loss of wages is an effort by his 
 
            employer to aid a settlement of his workers' compensation 
 
            claim. 
 
            
 
                 Claimant has a 10 percent permanent impairment rating 
 
            from two doctors.  However, no doctor has been able to 
 
            determine why claimant is physically unable to work more 
 
            than 25 or 30 hours per week.
 
            
 
                 Claimant's current wages are comparable to what he 
 
            could earn in he were to seek alternative employment.  
 
            
 
                 Defendant employer has accommodated claimant's work 
 
            restrictions and his self-imposed limited hours.  Claimant 
 
            is able to carry out the job responsibilities assigned to 
 
            him and is still able to work.
 
            
 
                 After considering all of the factors use in determining 
 
            industrial disability, it is the decision of the deputy 
 
            industrial commissioner that claimant has sustained a 25 
 
            percent industrial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of two hundred sixty-three and 39/100 
 
            dollars ($263.39) commencing October 23, 1990.
 
            
 
                 That defendants shall be entitled to a credit for 
 
            benefits previously paid.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of October, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          TERESA K. HILLARY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. H P Folkers
 
            Attorney at Law
 
            23 3rd St NW STE 200
 
            Mason City, IA  50401
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                         51803
 
                                         Filed October 28, 1994
 
                                         Teresa K. Hillary
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RICHARD OTT,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 856040
 
            ZILGE APPLIANCE CENTER,  
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            51803
 
            
 
            Claimant underwent surgery for anterior cervical diskectomy 
 
            and fusion at C3-4.  Claimant has returned to work with 
 
            minimal work restrictions and is able to perform all job 
 
            responsibilities, except making service calls at customers' 
 
            houses.  Actual loss of earnings because of reduced wages 
 
            and reduced hours due in part to claimant's refusal to work 
 
            additional hours and employers reduced earnings for 
 
            employees work because he would not go on service calls.  
 
            Claimant awarded 25 percent industrial disability.
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLORIA DECKER,                          File Nos. 856157 & 865851
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         WILSON FOODS, INC.,                             F I L E D
 
         
 
              Employer,                                 JUN 11 1990
 
              Self-Insured,
 
              Defendant.                            INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gloria 
 
         Decker, claimant, against Wilson Foods, Inc., employer and 
 
         self-insured defendant, for benefits as the result of an alleged 
 
         injury to the neck, shoulders and upper back which occurred on 
 
         January 2, 1987 (file number 856851) and an injury to her right 
 
         hand which occurred on March 18, 1987 (file number 856157).  The 
 
         record consists of the testimony of Gloria Decker, claimant; 
 
         joint exhibits 1 through 13; claimant's exhibits 1 and 2 and 
 
         employer's exhibits A through C.  Both attorneys submitted 
 
         excellent briefs.
 
         
 
                         ALLEGED INJURY OF JANUARY 2, 1987
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated that an employer-employee 
 
         relationship existed at the time of the alleged injury; that the 
 
         rate of compensation, in the event of an award, is $232.27; and 
 
         that claimant's entitlement to medical benefits is not in 
 
         dispute.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury,on January 2, 1987, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         she is entitled.
 
         
 
                              INJURY OF MARCH 18, 1987
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on March 18, 1987, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That the extent of entitlement to temporary disability 
 
         benefits has already been paid and is not a matter in dispute 
 
         between the parties at this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is scheduled member 
 
         disability to the right hand.
 
         
 
              That the commencement date of permanent partial disability 
 
         benefits is February 10, 1988.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $232.27 per week.
 
         
 
              That claimant's entitlement to medical benefits is not in 
 
         dispute.
 
         
 
              That defendant makes no claim for employee nonoccupational 
 
         group health plan benefits paid to claimant prior to hearing.
 
         
 
              That defendant has paid claimant 4.75 weeks of permanent 
 
         partial disability benefits prior to hearing at the rate of 
 
         $232.27 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which she is 
 
         entitled.
 
         
 
                         ALLEGED INJURY OF JANUARY 2, 1987
 
         
 
                                 FINDINGS OF FACT
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that on January 2, 1987, she slipped on a 
 
         piece of fat and fell on her bottom and jammed her shoulders.  
 
         She testified that she hurt her low back, shoulders, and neck.  
 
         She reported the injury to her foreman; saw Keith O. Garner, 
 
         M.D., the plant physician; was referred to Walter O. Carlson, 
 
         M.D., an orthopedic surgeon; Mark E. Wheeler, M.D., an orthopedic 
 
         surgeon; A. J. Wolbrink, M. D., an orthopedic surgeon; and 
 
         received physical therapy from a licensed physical therapist.  
 
         She saw Pat Luse, D.C., for an evaluation also.  Claimant 
 
         testified that she still has headache pain, neck pain and hip 
 
         pain precipitated by lifting and knife work.  Strenuous activity 
 
         either at home or at work also triggers the pain.  She has a 
 
         particularly sharp lower neck pain.
 
         
 
              The medical records of Dr. Garner verify that claimant did 
 
         report a fall at work on January 2, 1987 and complained of lower 
 
         back pain.  A week later, on January 9, 1987, she complained of 
 
         right shoulder muscles being sore and was authorized to see a 
 
         chiropractor.  Claimant continued to complain of neck and 
 
         shoulder pain in March, April and May according to the entries on 
 
         the company medical records.  Employer referred claimant to Dr. 
 
         Carlson in April of 1987 and to Dr. Wheeler, at her request, in 
 
         August of 1987 (exhibit 1, pages 1-4).
 
         
 
              Dr. Carlson examined and treated the cervical and thoracic 
 
         regions and found no objective evidence for decreased range of 
 
         motion or neurologic change in her arms and neck to merit taking 
 
         her off work.  He prescribed medication and a cervical collar.  
 
         Dr. Carlson gives no opinion on causal connection of the 
 
         employment to the complaints of injury (ex. 4, p. 1 and ex. 5). 
 
         on August 11, 1987, he said there was nothing more that he could 
 
         do for her neck and shoulder and that she was able to work (ex. 
 
         7).  Dr. Carlson's diagnosis was muscle-ligament strain in neck 
 
         and shoulder.  He indicated gradual improvement should be 
 
         expected (ex. 10).
 
         
 
              Dr. Wheeler said that claimant gave a history that she 
 
         slipped and fell at work, but was uncertain whether the fall 
 
         actually caused her problems because she had had continued 
 
         trouble for quite some time.  He did find tenderness over the 
 
         trapezius muscles over C3, C4 and C6 and in both paraspinal 
 
         muscle groups. She had a full range of motion of the cervical 
 
         spine and the shoulder.  His neurological examination was normal.  
 
         X-rays of the cervical spine showed no abnormality.  Dr. Wheeler 
 
         diagnosed chronic muscle strain pattern about the shoulders.  Dr. 
 
         Wheeler concluded as follows:
 
         
 
              I have advised her I have little to offer.  I am sure her 
 
              work is aggravating her condition but I do not feel that 
 
              leaving her off work for a short period of time is going to 
 
              solve anything.  Have advised her she can work as long as 
 
              she tolerates the pain.  I have not placed her on any 
 
              medications.  She has a zero percent permanent partial 
 
              impairment rating because of this.  She has full range of 
 
              motion of all joints.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (ex. 3)
 
         
 
              Dr. Wolbrink noted that claimant slipped and fell at work 
 
         and continued to have pain in the right trapezius area from the 
 
         cervical spine to the periscapular area and somewhat into the 
 
         right shoulder.  He stated, "In my opinion, Mrs. Decker did 
 
         suffer mild, cervical strain in the above incident.  She has some 
 
         persistent muscular problems because of this."  (ex. 12, p. 2).  
 
         He expected to see improvement with a good exercise program.  His 
 
         final remark was, "It is also my opinion, that with a good 
 
         exercise program, she will have a good recovery, and so will not 
 
         have any permanent impairment due to her cervical spine injury."  
 
         (ex. 12, p. 2).
 
         
 
              Dr. Luse, claimant's evaluator, found that claimant did 
 
         receive an injury as a result of the fall of chronic cervical 
 
         sprain/strain with myositis and cephalgia (claimant's ex. 1, p. 
 
         3).
 
         
 
              In conclusion, Dr. Carlson gives no guidance on causal 
 
         connection.  Dr. Wheeler said that claimant reported a fall at 
 
         work, but was not sure whether this actually caused her problems. 
 
         Dr. Wheeler, like Dr. Carlson, did not give his own personal 
 
         professional medical opinion on whether the fall at work was the 
 
         cause of her medical complaints.  He did say that her work 
 
         aggravated her condition.
 
         
 
              The weight of the evidence, however, does support a 
 
         work-related injury.  The employer's medical records show that 
 
         Dr. Garner recorded a fall on January 2, 1987,and ensuing 
 
         shoulder and neck pain shortly thereafter.  Dr. Wolbrink clearly 
 
         states that the fall did cause claimant's cervical and shoulder 
 
         complaints. Dr. Luse also unequivocally states that the fall 
 
         caused claimant's cervical sprain/strain, myositis and cephalgia.  
 
         Therefore, it is determined that claimant sustained an injury to 
 
         her shoulders, neck and upper back on January 2. 1987 which arose 
 
         out of and in the course of employment with employer.
 
         
 
                CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
 
         
 
              Dr. Carlson found no permanent impairment or disability, but 
 
         only muscle-ligament strain in the neck and shoulder (ex. 10) and 
 
         that it did not impair claimant's ability to work (exs. 4, 5 & 
 
         7). Dr. Wheeler found that work was aggravating her shoulder and 
 
         neck condition and probably would continue to do so, but 
 
         determined, "She has a zero percent permanent partial 
 
         impairment..."  Dr. Wolbrink's cervical spine x-ray reads as 
 
         follows:
 
         
 
              The cervical spine is intact with no fractures.  Vertebral 
 
              alignment is normal and intervertebral discs are adequately 
 
              maintained.  No encroachment on intervertebral foraminae can 
 
              be seen.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              IMPRESSION:  NEGATIVE CERVICAL SPINE.
 
         
 
         (ex. 11)
 
         
 
              After careful consideration, Dr. Wolbrink stated, "...that 
 
         with a good exercise program, she will have a good recovery, and 
 
         so will not have any permanent impairment due to her cervical 
 
         spine injury."  (ex. 12, p. 2).
 
         
 
              Dr. Luse found some mild impairments in claimant's left and 
 
         right lateral.flexion--1 percent on the right and 1 percent on 
 
         the left, but did not find any particular impairment rating for 
 
         the cervical spine itself (cl. ex. 1, p. 3).
 
         
 
              Therefore, it is determined that the injury to claimant's, 
 
         neck and shoulders and upper back was not the cause of any 
 
         permanent impairment and claimant is not entitled to any 
 
         permanent partial disability benefits.  It is determined that 
 
         claimant sustained an injury to the body as a whole, rather than 
 
         a scheduled member injury.
 
         
 
                              INJURY OF MARCH 18, 1987
 
         
 
                CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
 
         
 
              Following the trigger finger releases performed by Dr. 
 
         Carlson on June 25, 1987, claimant contended, "...that when she 
 
         has her fingers wrapped around a knife at work they trigger and 
 
         snap on her."  (ex. 7).  Claimant also asserted a lack of grip 
 
         strength in her right hand (ex. 8).  Nevertheless, Dr. Carlson 
 
         concluded:
 
         
 
              She had full range of motion of the fingers and patient 
 
              requested a permanency rating based on grip strength.  The 
 
              patient was advised that there was no information allowing 
 
              to relate disability to decreased grip strength.
 
         
 
              It is our opinion that the patient has no permanent partial 
 
              physical impairment rating related to her injury.  She is 
 
              back to full work duty.
 
         
 
         (ex. 9)
 
         
 
              Dr. Wheeler refused to treat the right hand complaint and 
 
         makes no comment about it (ex. 1, p. 4; ex. 3).  Dr. Wolbrink 
 
         recorded that she still had problems with the right hand, 
 
         especially if she is using the "whizzer" knife.  He further 
 
         recorded, "weakness of the right hand."  He found right hand 
 
         scars and slight crepitation along the flexor tendons as she 
 
         flexed her fingers.  He felt that she had good relief from the 
 
         surgery.  He recommended an exercise program for her hands, which 
 
         he found were of just marginal strength, to tolerate the highly 
 
         repetitive work that she was doing without changing jobs 
 
         throughout the day.  His final impairment rating was worded as 
 
         follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In my opinion, in using the Guides to the Evaluation of 
 
              Permanent Impairment, AMA, 2nd edition, Mrs. Decker has an 
 
              impairment at the present time, of 10% of the right hand, 
 
              due to the persistent weakness from her trigger finger and 
 
              the tendinitis.  I do think that she will continue to see 
 
              improvement, but I think that she will have a permanent 
 
              impairment of about 5% of the right hand due to this 
 
              problem.
 
         
 
         (ex. 12, p. 2)
 
         
 
              Dr. Luse found that the repetitive motion job which claimant 
 
         was performing was the cause of her right trigger finger release 
 
         and paresthesia of the right hand (ex. 1, p. 3).  He awarded a 4 
 
         percent impairment of the right upper extremity due to loss of 
 
         function, sensory defect, pain and discomfort and another 4 
 
         percent impairment to the right upper extremity for loss of 
 
         function due to loss of strength.  He combines these two ratings 
 
         and arrives at an 8 percent combined impairment.  The impairment 
 
         is to a scheduled member, however, rather than to the whole 
 
         person as stated by Dr. Luse.  Four percent and 4 percent do 
 
         combine to 8 percent on the combined values chart of the AMA 
 
         Guides.
 
         
 
              In conclusion, Dr. Wolbrink found a 10 percent permanent 
 
         impairment to the right hand.  Dr. Luse's 8 percent of the right 
 
         upper extremity converts to 7 percent of the hand (table 2, page 
 
         19, AMA Guides).  There is no evidence that claimant's impairment 
 
         extends beyond the hand.  The wrist has been determined to be a 
 
         part of the hand.  Elam v. Midland Manufacturing, II Iowa 
 
         Industrial Commissioner Reports 141 (Appeal Decision 1981).  Dr. 
 
         Wolbrink's statement, "...that she will continue to see 
 
         improvement, but I think she will have a permanent impairment of 
 
         about 5% of the right hand due to this problem." is speculative 
 
         in nature.  He awarded 10 percent for the condition as he found 
 
         it. There has been no evidence that the condition improved to 5 
 
         percent subsequent to his rating.  Claimant testified that her 
 
         hands and knuckles still swell from using them at work.  There is 
 
         no evidence that either Dr. Wolbrink or Dr. Luse included the 
 
         tennis elbow which developed subsequent to this injury, in their 
 
         evaluation or determination of an impairment rating.  In 
 
         conclusion, Dr. Carlson's determination that claimant suffered no 
 
         permanent impairment as a result of the third and fourth finger 
 
         releases is out weighed by the testimony of Dr. Wolbrink and Dr. 
 
         Luse.
 
         
 
              Therefore, based on claimant's testimony and the evaluations 
 
         of Dr. Wolbrink and Dr. Luse, it is determined that claimant has 
 
         sustained a 7 percent permanent partial impairment to the right 
 
         hand.  Iowa Code section 85.34(2)(1).  Seven percent of 190 weeks 
 
         equals 13.3 weeks of entitlement to permanent partial disability 
 
         benefits.
 
         
 
                         ALLEGED INJURY OF JANUARY 2, 1987
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury to her neck, 
 
         shoulders and upper back when she fell on January 2, 1987, which 
 
         arose out of and in the course of employment with employer.  Iowa 
 
         Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 
 
         904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
         352, 154 N.W.2d 128 (1967).
 
         
 
              Causal connection to temporary disability and entitlement to 
 
         temporary disability were not issues in this case because 
 
         claimant lost no time from work because of this injury.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         permanent disability.  Bodish v. Fischer Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 
 
         N.W.2d 607 (1945).
 
         
 
              Claimant, therefore, is not entitled to permanent disability 
 
         benefits because she did not prove that the injury was the cause 
 
         of permanent disability.  Furthermore, Dr. Carlson, Dr. Wheeler 
 
         and Dr. Wolbrink determined that claimant had not sustained any 
 
         permanent impairment from this injury.
 
         
 
              The injury is determined to be an injury to the body as a 
 
         whole rather than an injury to a scheduled member.  Iowa Code 
 
         section 85.34(2)(u).
 
         
 
                              INJURY OF MARCH 18, 1987
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of March 18, 1987, 
 
         to the right hand, was the cause of permanent impairment.
 
         
 
              That the parties stipulated that the type of permanent 
 
         disability, if the injury was found to be a cause of permanent 
 
         disability, was scheduled member disability to the right hand. 
 
         Iowa Code section 85.34(2)(1).
 
         
 
              That claimant sustained a 7 percent permanent impairment and 
 
         functional disability to the right hand.
 
         
 
              That claimant is entitled to 13.3 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant thirteen point three (13.3) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred thirty-two and 27/100 dollars ($232.27) per week in the 
 
         total amount of three thousand eighty-nine and 19/100 dollars 
 
         ($3,089.19) commencing on February 10, 1988 as stipulated to by 
 
         the parties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant is entitled to a credit for four point seven 
 
         five (4.75) weeks of workers' compensation benefits paid to 
 
         claimant prior to hearing at the rate of two hundred thirty-two 
 
         and 27/100 dollars ($232.27) per week in the total amount of one 
 
         thousand one hundred three and 28/100 dollars ($1,103.28).
 
         
 
              That the costs of this action are charged to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 11th day of June, 1990.
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Mr. MacDonald Smith
 
         Attorneys at Law
 
         632-640 Badgerow Bldg.
 
         PO Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine
 
         PO Box 535
 
         Cherokee, Iowa  51012
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51107; 51108.50; 51401; 51402.20; 
 
                                       51402.30; 51402.40; 51803; 52209; 
 
                                       51401; 51402.40; 51803
 
                                       Filed June 11, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLORIA DECKER,
 
         
 
              Claimant,                      File Nos. 856157 & 865851
 
         
 
         vs.                                   A R B I T R A T I O N
 
                                            
 
         WILSON FOODS, INC.,                      D E C I S I O N
 
              
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51107; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51803; 
 
         52209
 
         
 
              It was determined that claimant did sustain an injury 
 
         arising out of and in the course of her employment from a fall at 
 
         work which injured her neck, shoulder and upper back; however, 
 
         claimant did not prove any impairment or disability.  She lost no 
 
         time from work, had no impairment rating, was performing her old 
 
         job and had no actual wage loss.
 
         
 
         51401; 51402.40; 51803
 
         
 
              Treating physician awarded zero impairment.  An evaluator 
 
         awarded 10 percent impairment, but expected it to improve to 5 
 
         percent.  Another evaluator awarded 7 percent.  It was determined 
 
         the expected improvement was speculative because it had not been 
 
         proven that the improvement occurred, especially in light of 
 
         claimant's continued complaints.  Claimant awarded 7 percent 
 
         permanent partial disability to the right hand.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARK MAUDSLEY,
 
         
 
                Claimant,
 
         VS.  :                             File No. 856330
 
         
 
         PIZZA 2-U                       A R B I T R A T I 0 N
 
         
 
               Employer,                    D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Mark Maudsley, against Pizza 2-U, employer, and National Union 
 
         Fire Insurance Company, insurance carrier, defendants, to recover 
 
         benefits as a result of an alleged injury sustained on May 25, 
 
         1987.  This matter came on for hearing before the deputy 
 
         industrial commissioner in Cedar Rapids, Iowa, on February 28, 
 
         1990.  The record consists of the testimony of the claimant and 
 
         Joint Exhibits 1 through 41 and A through L.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1. Whether claimant's alleged permanent disability is 
 
         causally connected to his injury;
 
         
 
              2. The nature and extent of claimant's disability;
 
         
 
              3. Whether claimant is entitled to Iowa Code section 85.27 
 
         medical benefits; and
 
         
 
              4. Whether claimant is entitled to Iowa Code section 85.39 
 
         medical examination by John R. Walker, M.D.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he had twelve years of primary and 
 
         secondary education but did not have sufficient credit his
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 2
 
         
 
         
 
         twelfth year of school to graduate from high school.  Claimant 
 
         said he obtained his GED from Kirkwood College in 1975.  Claimant 
 
         stated he began working at age 14 or 15 at a food service 
 
         restaurant.  Claimant entered the air force after high school for 
 
         three years and obtained his general honorary discharge in 1979. 
 
         claimant said his job in the air force was as a fuel specialist, 
 
         fueling trucks and aircraft and other duties.
 
         
 
              Claimant described his work history after leaving the air 
 
         force.  Claimant said it involved jobs such as boning hams at 
 
         Wilson Foods, warehouse work, washing windows, corn processing, 
 
         cleaning and maintenance work.  In the fall of 1982, claimant 
 
         became unemployed for approximately one year.  Claimant testified 
 
         he then took a truck driving course at Kirkwood Community College 
 
         in the fall of 1983 through the spring of 1984 and thereafter 
 
         obtained a truck driving job with City Deliveries.  Claimant 
 
         related this job was terminated when he drove a 13 foot high 
 
         truck under a 11 foot high overpass.  Claimant said he then 
 
         applied at every truck driving place in town and finally obtained 
 
         a job with defendant employer in August 1986.  Claimant stated 
 
         this job paid little more than minimum wage.  He said this job 
 
         involved driving a van equipped with an oven and refrigerator and 
 
         he delivered the pizza after it was prepared in the van by 
 
         claimant.
 
         
 
              Claimant testified he was in an accident on May 25, 1987 
 
         while driving his van to deliver a pizza.  Claimant described the 
 
         accident as involving only his vehicle which slid off the roadway 
 
         on slippery pavement and was a total loss.  Claimant related he 
 
         was taken by ambulance to the hospital.  Claimant said he was 
 
         x-rayed and it was determined he was okay and sent home.  
 
         Claimant indicated he returned to the hospital that same day 
 
         because injuries to the back of his legs had not been stitched as 
 
         required.  Claimant said he notified the employer and shortly 
 
         thereafter defendant insurance company set up an appointment with 
 
         W. John Robb, M.D., who prescribed an exercise and swimming 
 
         program for claimant.
 
         
 
              Claimant indicated the course of treatment prescribed by Dr. 
 
         Robb was resulting in no progress.  Claimant said the doctor 
 
         would tell him to continue with exercises and swimming and come 
 
         back again in six to eight weeks. Discouraged with his progress, 
 
         claimant said he went to his family doctor, Dr. Schulz, who 
 
         suggested claimant see James W. Turner, M.D., who was Dr. Robb's 
 
         associate.  Claimant stated Dr. Turner took a more aggressive 
 
         approach, including setting up an aerobics program.  Claimant 
 
         indicated he made some progress in certain areas and more in 
 
         others.  Claimant stated Dr. Turner released him to go to work in 
 
         June 1988.  Claimant indicated he told the doctor he could not do 
 
         the work but the doctor said to give it a try.  Claimant returned 
 
         to work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant indicated defendant employer bought a Ranger pickup 
 
         truck rather than the prior type of van.  Claimant described the
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 3
 
         
 
         
 
         difficulties he had cooking, driving and delivering pizza with 
 
         the Ranger and the equipment.  Claimant said he was burned by 
 
         pizza landing on him on one occasion.  Claimant said he worked 
 
         about three days in the two week period and then told his 
 
         supervisor he could not continue to work.
 
         
 
              Claimant then saw G. Douglas Valentine, D.C., to whom he was 
 
         referred by a friend to see if he could get some back relief.  
 
         Claimant said he found no relief and was then referred to Dr. 
 
         Walker by claimant's divorce attorney.  Claimant related Dr. 
 
         Walker prescribed hospitalization for ten to twelve days which 
 
         involved traction, therapy, steroids, muscle relaxants and 
 
         anti-inflammatory drugs.  Claimant said Dr. Walker took a more 
 
         aggressive approach than either Dr. Robb or Dr. Turner.  Claimant 
 
         emphasized he wanted to get well and back to work.  Claimant 
 
         acknowledged he did not have authorization from defendants to see 
 
         Dr. Valentine or Dr. Walker, but does not recall seeing either of 
 
         the two letters defendants' attorney wrote indicating claimant 
 
         had no authorization to see a doctor other than Drs. Robb and 
 
         Turner.  Claimant revealed he did not know he had to get 
 
         defendants' authorization to see a doctor.
 
         
 
              Claimant said he began working with vocational 
 
         rehabilitation in December 1989.  Claimant said the reason why he 
 
         waited so long to contact the vocational rehabilitation personnel 
 
         was because defendant employer went out of business and he felt 
 
         his former job was no longer available.  Claimant indicated he 
 
         would have to get a sedentary job as he could no longer do the 
 
         same work he did before his injury.  Claimant considers himself 
 
         intellectually bright and can get a job with training.  Claimant 
 
         contends he can no longer drive a truck.  Claimant said he 
 
         applied for two jobs in 1990.  Claimant admitted he stated in his 
 
         job application that Dr. Walker limited claimant's lifting, 
 
         bending and twisting.  Claimant said he didn't get the jobs.  
 
         Claimant stated he would like to continue working with the skill 
 
         center and find an interesting job comparable with his skills.  
 
         Claimant indicated he would like to learn a business manager 
 
         position.  Claimant recalled his six visits with Dr. Robb, the 
 
         last being in May 1988, but could not explain why the doctor 
 
         didn't mention his neck complaint.
 
         
 
              Claimant acknowledged Attorney Humphrey referred claimant to 
 
         Dr. Walker and Valentine and admitted he never told defendant 
 
         insurance company or adjusting company that he was seeking the 
 
         services of these two doctors.  Claimant said he did not seek the 
 
         insurance company's authorization to see these two doctors.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant indicated he called defendant employer on the day 
 
         of his oral release by Dr. Turner on March 2, 1988.  Claimant 
 
         indicated defendant employer would not take claimant back until 
 
         he obtained a written release.  The evidence is confusing why 
 
         claimant was not able to get the doctor's release in writing for 
 
         two months, but claimant contends he called the doctor several 
 
         times.  Claimant finally returned to work in June 1988 until
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 4
 
         
 
         
 
         August 1988.  Claimant acknowledged Dr. Turner issued a written 
 
         release dated June 22, 1988 referring to claimant returning to 
 
         work May 5, 1988.  Claimant could not recall Dr. Turner releasing 
 
         him more than once.  Claimant said he still does not have a 
 
         release from his own doctor, John Walker.
 
         
 
              Claimant acknowledged he did not look for nor had he applied 
 
         for any job between August 1988, upon leaving defendant employer, 
 
         and January 1990. claimant said he thought about returning to 
 
         school.  Claimant said he went to Job Service in 1990 for the 
 
         first time.
 
         
 
              When asked why he didn't ask for defendant employer's 
 
         permission to see Dr. Walker, claimant stated he didn't know he 
 
         had to get permission to see a doctor of his choice.  Claimant 
 
         acknowledged he has a lawsuit against Jerry Rambo alleging Rambo 
 
         was responsible for claimant's vehicle accident on May 25, 1987.
 
         
 
              Jerry Rambo testified through his telephonic deposition 
 
         taken February 6, 1990 (Joint Exhibit L) that he has been field 
 
         support consultant for Pizza Hut since February 1989, but has 
 
         worked for Pizza Hut for fifteen years.  He said he was manager 
 
         of Pizza 2-U from October 1984 to February 1989.  He acknowledged 
 
         he knew claimant as a driver for defendant employer and described 
 
         claimant's duties.  Rambo testified he was personally involved in 
 
         claimant's return to work.  He said claimant asked him in June 
 
         1988 if claimant could return to work.  Rambo said he told 
 
         claimant he would need a written letter from the doctor or a 
 
         doctor's release and then he could come back to work.  Rambo said 
 
         claimant obtained a written doctor's release and returned to work 
 
         in June 1988 for two or three weeks at the same duties he had at 
 
         the time of his May 25, 1987 accident.  Rambo related he asked 
 
         claimant several times how his back was and he said claimant 
 
         responded he had no problems.  Rambo emphasized claimant never 
 
         indicated to him that claimant was having problems with his back 
 
         nor did it appear claimant was having any back problems.  Rambo 
 
         acknowledged that claimant was out in the truck and Rambo was in 
 
         the shop so he could only see claimant after work and had to go 
 
         on what claimant told him.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Rambo said claimant failed to show up for work after two to 
 
         three weeks and did not talk to anyone as to why.  Rambo said he 
 
         has never talked to claimant as to why he stopped working as 
 
         claimant had been scheduled to work.  Rambo said claimant was not 
 
         fired but was put on indefinite leave.  Shortly thereafter, he 
 
         said defendant employer received another workers' compensation 
 
         claim by claimant for back problems.  Rambo acknowledged claimant 
 
         was a good worker, when he worked, and claimant seemed anxious to 
 
         get back to work.  Rambo said claimant's release and return to 
 
         work Rambo received in June 1988 was the first release he had 
 
         received and was dated May 1988.  Rambo said he was concerned 
 
         about claimant's back and kept asking claimant about his back 
 
         since claimant had been in an accident.  He acknowledged 
 
         claimant's job involved some bending, twisting, but no lifting
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U
 
         Page 5
 
         
 
         
 
         over 30 pounds.  Rambo said claimant had a positive attitude both 
 
         before his injury and when he returned in June 1988.
 
         
 
              Mercy Hospital x-rays taken shortly after claimant's May 25, 
 
         1987 injury showed negative for bone disease or injury.(Jt. Ex. 
 
         A) The Mercy Family Practice Clinic notes of May through July 
 
         1987 indicate claimant had back complaints, and aches and 
 
         stiffness in the cervical lumbar area of his back.  The Mercy 
 
         Family Practice Clinic notes of November 16 and December 18, 
 
         1987, January 5, January 12, January 19, April 27, and December 
 
         16, 1988 are medical visits for claimant's Crohn's disease.  This 
 
         is an intestine-ileum problem and has no connection with 
 
         claimant's injury.  The January 5, 1988 note reflects "Crohn's 
 
         disease, not well under control." (Jt. Ex. B, p. 4) The December 
 
         16, 1988 medical notes reflect "Crohn's disease now under control 
 
         w/Flagyl." (Jt.  Ex. B, p. 5) There are certain physical therapy 
 
         records regarding claimant on February 15, 1988.  The Iowa 
 
         Musculoskeletal Center notes reflect: "Judging by patient's [sic] 
 
         facial expression and his lack of trying, I felt he was not 
 
         interested in the program and that lack of interest, I don't 
 
         think he would benefit at all from the program." (Jt. Ex. 7, p. 
 
         4) On February 18, 1988, Dr. Robb indicated to the insurance 
 
         adjustor that if claimant had followed through with therapy, his 
 
         condition would probably be resolved by now. (Jt. Ex. 31) 
 
         Claimant was then given his 30 days notice that benefits were to 
 
         cease.
 
         
 
              Claimant saw W.J. Robb, M.D., on July 20, 1987.  On July 22, 
 
         1987, Dr. Robb wrote:
 
         
 
              Diagnoses:  1. SPRAIN CERVICAL SPINE, RECOVERED.
 
              
 
                          2. STRAIN MUSCLES THORACIC LUMBAR SPINE, 
 
                             STILL SYMPTOMATIC.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 10, p. 2)
 
         
 
              Dr. Robb wrote in a letter June 28, 1989 as  follows:
 
         
 
                 The objective findings are limited and disproportionate 
 
              to the subjective complaints.  I think there is a 
 
              significant functional overlay.  Psychological factors as 
 
              they play a role in the adjustment of an individual to 
 
              injury and could be significant in retarding the performance 
 
              or providing the individual with capability of handling 
 
              adjustment to his limitations understanding completely the 
 
              nature of his problems.
 
              
 
              PROGNOSIS:
 
              
 
              I anticipate that after the litigation is resolved that he 
 
              will engage in much more activity.  If adequately performed 
 
              his impairment of function would be quite
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 6
 
         
 
         
 
              limited.  I do not feel that this would exceed five percent 
 
              of the body as a whole.
 
         
 
         (Jt. Ex. 10, p. D-3)
 
         
 
              Dr. Robb was asked in a letter and answered on June 28, 1989 
 
         as follows:
 
         
 
              Is any further treatment including surgery indicated? I do 
 
              not think that further treatment is going to assist or 
 
              improve this patient's performance until the litigation has 
 
              been resolved.  I think there are certain psychological 
 
              factors that impact on this case which preclude his complete 
 
              participation in an aggressive exercise program which is 
 
              necessary to correct the flexion contracture to which I have 
 
              referred earlier.  The two percent permanent impairment of 
 
              function would represent the optimistic recovery after the 
 
              resolution of the litigation.  My personal opinion is I do 
 
              not feel it will exceed five percent of the body as a whole 
 
              and that is assuming that he does not participate in his 
 
              exercises more aggressively than he has up to your point.
 
         
 
         (Jt. Ex. 10-D, p. 3-4)
 
         
 
              The notes of James W. Turner, M.D., an orthopedic surgeon, a 
 
         partner of Dr. Robb, reflect on March 8, 1988
 
         
 
                 On examination today with Mark he appears very 
 
              inconsistent in movements.  He has totally negative straight 
 
              leg raising.  When sitting he raises easily off of the 
 
              examining table.  Exaggerated movements when attempting to 
 
              bend forward.  I have reviewed his x-rays.  At this time I 
 
              feel that he had only soft tissue injury.  I think a valid 
 
              attempt has been made at rehabilitating through therapy.  We 
 
              don't seem to be making significant progress.   My 
 
              recommendation is that the patient attempt to return to 
 
              work.  I don't see that delivering pizzas should 
 
              significantly give him any great problems.  I think that he 
 
              probably will perceive some pain on an intermittent basis, 
 
              but would recommend that he attempt to work through this.  I 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              will follow him in three months if still symptomatic.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 11, p. 2)
 
         
 
              On March 8, 1988, James W. Turner, M.D., wrote a letter 
 
         which states, in part:
 
         
 
                 At present it is very difficult to objectively document 
 
              any permanent impairmency.  This patient because of his 
 
              persistent complaints I would feel he has had a healed 
 
              muscle sprain and has 2 percent
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 7
 
         
 
         
 
              permanent partial impairmency person as a whole.  As you can 
 
              see, I have encouraged him to attempt to return to work.
 
         
 
         (Jt. Ex. 12)
 
         
 
              On May 4, 1988, Dr. Turner wrote:
 
         
 
              The patient again complains of discomfort in his back.  He 
 
              said that his pizza delivering job wasn't available when I 
 
              released him previously and he hasn't attempted to find any 
 
              other form of work.  Again when walking down the hall, he 
 
              walks quite well.  His movements for forward flexion, side 
 
              bending become quite exaggerated, but his straight leg 
 
              raising is negative at 90 degrees and deep tendon reflexes 
 
              were trace at the knee and trace at the ankle.
 
              
 
                 I tried to explain to the patient that I feel that he 
 
              undoubtedly does experience some discomfort in his back, but 
 
              at this point I feel that exercise and activity is treatment 
 
              that is indicated.  I would allow him to work on an as 
 
              tolerated level.
 
         
 
         (Jt. Ex. 11, p. 2)
 
         
 
              Claimant was referred by his attorney to John R. Walker, 
 
         M.D., around August 22, 1988.  Dr. Walker wrote on March 13, 
 
         1989:
 
         
 
                 At this point it would appear to me that his temporary, 
 
              partial impairment is extremely high.  I would rate it as 
 
              follows:; 8% impairment of the body as a whole based on the 
 
              cervical spine injuries; a 6% permanent, partial impairment 
 
              as far as the dorsal spine is concerned; as far as the 
 
              lumbar spine is concerned I would set this at 25 to 30% 
 
              temporary partial impairment of the body as a whole.  It 
 
              goes without saying, however, that this probably could be 
 
              reduced with proper treatment and I am thinking pretty much 
 
              along the surgical lines.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 When this is all added up, it appears that he will end up 
 
              somewhere around permanent, partial impairment.
 
         
 
         (Jt. Ex. 18, p. 1)
 
         
 
              Dr. Walker wrote on August 18, 1989:
 
         
 
                 He has been treated by Dr. Valentine who seems to be 
 
              giving him some at least momentary relief and I certainly 
 
              have no objections if Dr. Valentine can help him.
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U
 
         Page 8
 
         
 
         
 
                 At that point I did not feel he was a surgical patient.  
 
              Many patients do need surgery but I feel there is no clear 
 
              indication for any other surgery than the cervical, lumbar 
 
              or dorsal region at this time, at least.  Admittedly, I have 
 
              not seen him in the past and perhaps another examination 
 
              might change my mind but I sort of doubt it.
 
              
 
                 At any rate, what we really need is a final evaluation 
 
              and the whole examination in order to give you a more 
 
              definite, final opinion.  However, it is my feeling at the 
 
              present time that this patient is pretty badly disabled with 
 
              a lot of permanent impairment and not capable of doing heavy 
 
              work such as bending, stooping, twisting or carrying and 
 
              even long periods of driving will bother him a great deal 
 
              although it might be that he would be able to carry them 
 
              out.  I would suspect that he could do more sedentary jobs 
 
              such as perhaps taking tickets at a theater or ushering or 
 
              something of a more sedentary nature.  At this point I am 
 
              not sure of his education nor his opportunities, but as a 
 
              final statement, it is my opinion that he has a permanent, 
 
              partial impairment amounting to 35% of the body as a whole.
 
              
 
                 His industrial disability, however, may be higher than 
 
              this.
 
         
 
         (Jt. Ex. 19, p. 2)
 
         
 
              Claimant was admitted to Covenant Medical Clinic on October 
 
         31, 1988 and discharged on November 12, 1988.  Claimant received 
 
         conservative therapy but the records reflect, as noted by Dr. 
 
         Walker, "[claimant] hasn't gotten too much out of this." (Jt. Ex. 
 
         22) The x-rays reflect a negative thoracic spine except for a 
 
         tiny marker at T8 level (Jt. Ex. E).
 
         
 
              Claimant was again admitted to Covenant Medical Center on 
 
         January 10, 1989 for a cervical lumbar myelogram with follow-up 
 
         CT of C5, C6 and L3 through L5 interspaces.  These were negative 
 
         with no evidence of herniated discs (Jt. Ex. F).  The records, 
 
         reflect a high spinal fluid protein of 63 mg.  Claimant was 
 
         discharged on January 15, 1989 sooner than anticipated because of 
 
         an emergency at home (Jt. Ex. 27).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 25, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 9
 
         
 
         
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         .percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered.... In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              In Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 
 
         (Iowa 1981), it was noted:
 
         
 
                 By the very meaning of the phrase, a person with a 
 
              "permanent disability" can never return to the same physical 
 
              condition he or she had prior to the injury.... See, 2 A. 
 
              Larson, The Law of Workmen's Compensation, SS 57.12 (1981).  
 
              The healing period may be characterized as that period 
 
              during which there is reasonable expectation of improvement 
 
              of the disabling condition," and ends when maximum medical 
 
              improvement is reached.  Boyd v. Hudson Pulp & Paper Corp., 
 
              177 So.2d 331, 330 (Fla.1965). That is, it is the period
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 10
 
         
 
         
 
              "from the time of the injury until the employee is as far 
 
              restored as the permanent character of his injury will 
 
              permit."  Winn Drilling Company v. Industrial Commission, 32 
 
              Ill.2d 144, 145-6, 203 N.E.2d 904, 905-6 (1965).  See also 
 
              W. Schneider, Schneider's Workman's Compensation,_SS 2308 
 
              (1957).  Thus, the healing period generally terminates "at 
 
              the time the attending physician determines that the 
 
              employee has recovered as far as possible from the effects 
 
              of the injury.  Winn, 203 N.E. at 906.
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)(u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks and the disability bears to the 
 
         body as a whole.
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselman v. Carroll Health Center, III Iowa Industrial 
 
         Commissioner Report 09 (Appeal Decision 1982).
 
         
 
              Iowa Code section 85.39 provides, in part:
 
         
 
                 If an evaluation of permanent disability has been made by 
 
              a physician retained by the employer and the employee 
 
              believes this evaluation to be too low, the employee shall, 
 
              upon application to the commissioner and upon delivery of a 
 
              copy of the application to the employer and its insurance 
 
              carrier, be reimbursed by the employer the reasonable fee 
 
              for a subsequent examination by a physician of the 
 
              employee's own choice, and reasonably necessary 
 
              transportation expenses incurred for the examination.  The 
 
              physician chosen by the employee has the right to confer 
 
              with and obtain from the employer-retained physician 
 
              sufficient history of the injury to make a proper 
 
              examination.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Iowa Code section 85.27 provides, in part:
 
              
 
              For purposes of this section, the employer is obliged to 
 
              furnish reasonable services and supplies to treat an injured 
 
              employee, and has the right to choose the care.  The 
 
              treatment must be offered promptly and be reasonably suited 
 
              to treat the injury without undue inconvenience to the 
 
              employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 11
 
         
 
         
 
              necessity therefor, allow and order other care.  In an 
 
              emergency, the employee may choose the employee's care at 
 
              the employer's expense, provided the employer or the 
 
              employer's agent cannot be reached immediately.
 
         
 
              Claimant is 32 years old and has a GED.  Claimant does not 
 
         have a history of skilled labor and therefore his transferable 
 
         skills are very limited.  It appears claimant does have some 
 
         intellectual ability if he receives the proper training and 
 
         education.
 
         
 
              Claimant has received the services of several doctors.  As 
 
         happens much too often, the doctors vary widely in their 
 
         opinions, depending on who hired them.  The differences are most 
 
         disturbing in that the doctors' impairment ratings are 33 percent 
 
         apart.  The doctors vary as to whether tests should be or were 
 
         given, notwithstanding claimant's complaints and nature of his 
 
         accident.  Certain tests were ultimately given by Dr. Walker and 
 
         they were basically negative.  Dr. Robb opined claimant's body as 
 
         a whole impairment would not exceed 5 percent if claimant did not 
 
         do his exercises and 2 percent permanent impairment if claimant 
 
         followed the doctor's suggested program and recovered as 
 
         anticipated.  Dr. Robb was concerned about claimant's significant 
 
         functional overlay.  He opined claimant's objective findings are 
 
         limited and disproportionate to claimant's subjective complaints.  
 
         The doctor seems to question claimant's motivation.
 
         
 
              Dr. Turner, Dr. Robb's partner, opined a 2 percent permanent 
 
         impairment to claimant's body as a whole.  He encouraged claimant 
 
         to return to work in March 1988, as reflected in the doctor's 
 
         March 2, 1988 notes and a letter dated March 8, 1988 to the 
 
         insurance adjustor.  Claimant initially testified that he was 
 
         released to return to work in June 1988 by Dr. Turner and, in 
 
         fact, returned to work at his former job.  Claimant worked at 
 
         this job until August 1988 when he decided he could not handle 
 
         the job any more due to his alleged injuries. claimant could not 
 
         recall ever being released to return to work prior to that June 
 
         date and, yet, claimant later testified he called the employer 
 
         for his old job around March 8, 1988 after Dr. Turner released 
 
         him to return to work.  Claimant related defendant employer would 
 
         not take claimant back to work without a written release from the 
 
         doctor.  Why claimant could not get a release in writing until 
 
         June 1988 is a mystery.  To further confuse this issue, the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         written release is dated June 22, 1988 and states claimant can 
 
         return to work May 5, 1988 (Jt. Ex. 15).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is obvious claimant knew he was released to work in March 
 
         1988, otherwise, why did he call defendant employer in March 
 
         1988.  If claimant was better motivated, the undersigned believes 
 
         claimant could have made a better effort to get a written 
 
         release.  Why defendant insurance carrier or the insurance 
 
         adjustor could not have gotten the written release from their own 
 
         doctor is more questionable.  The insurance company used the 
 
         March 8, 1988 day to send claimant his 30-day notice of
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U
 
         Page 12
 
         
 
         
 
         termination of benefits.  Adding to this is the back dating of 
 
         the only written return to work release as of May 5, 1988.
 
         
 
              There is no disagreement that claimant was injured on the 
 
         job.  The extent of claimant's healing period and permanent 
 
         disability is in dispute.  Defendants contend that claimant has 
 
         no more than a 5 percent disability, obviously taking the highest 
 
         impairment rating of their doctor, i.e., 5 percent, in 
 
         determining claimant's 5 percent impairment resulted in a 5 
 
         percent industrial disability.  Defendants further contend that 
 
         claimant's healing period is May 26, 1987 through March 21, 1988, 
 
         the ending date apparently based within a few weeks of Dr. 
 
         Turner's March 8, 1988 letter to the insurance company adjustor 
 
         (Jt. Ex. 12).  There is no disagreement among the parties as to 
 
         healing period involving at least this period of time.
 
         
 
              Dr. Walker is not able to objectively determine what is 
 
         causing claimant's present problems.  He has suspected disc 
 
         problems but a series of tests that often discover a disc problem 
 
         were negative.  It appears Dr. Walker is hanging his hat on 
 
         claimant's 63 mg. high blood protein count.  This suggested a 
 
         bulging disc or something hidden or ready to erupt.  The 
 
         undersigned cannot speculate as to what might further happen to 
 
         this claimant.  The law of review-reopening was established to 
 
         cover the future within the statutory limit.
 
         
 
              Claimant is lacking the motivation to attempt to overcome 
 
         his problems.  There is no question claimant has an impairment 
 
         and must work around it.  His effort to help himself has been 
 
         questioned by at least one doctor.  The undersigned finds 
 
         claimant has a 15 percent permanent impairment to his body as a 
 
         whole.
 
         
 
              The parties are in disagreement as to the extent of 
 
         claimant's healing period.  This has, in part, been previously 
 
         discussed.  Defendants contend the period, May 26, 1987 to and 
 
         including March 21, 1988 (43 weeks), is the extent of claimant's 
 
         healing period.  Claimant contends his healing period is still 
 
         running, or if not still running it should run at least through 
 
         August 18, 1989 when Dr. Walker opined a 35 percent permanent 
 
         partial impairment of claimant's body as a whole (Jt. Ex. 19, p. 
 
         2) of course, a person can have more than one healing period.  
 
         Dr. Walker sent claimant to Covenant Medical Center for traction 
 
         and therapy for thirteen days beginning November 11, 1988.  
 
         Claimant was again sent by Dr. Walker for various tests at 
 
         Covenant Medical Center beginning January 10, 1989 to and 
 
         including January 15, 1989.  Nothing definitive was found on 
 
         either of these admissions except a high protein fluid count on 
 
         the January 1989 hospitalization.  Claimant is found to have 
 
         incurred an additional healing period of 19 days (13 + 6 = 19) in 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         addition to the 43 weeks minimum healing period to which the 
 
         parties had agreed at the beginning of the hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U
 
         Page 13
 
         
 
         
 
              There are several criteria to consider in order to determine 
 
         the extent of claimant's industrial disability.  Claimant's 15 
 
         percent permanent partial impairment to his back is one.  
 
         Claimant was having no back problems prior to his May 25, 1987 
 
         accident nor has he incurred any further injuries since his 
 
         accident.  The location of claimant's injury is in an area which 
 
         has a great impact on claimant's entire body.  Claimant's past 
 
         history involved jobs in which the use and condition of one's 
 
         back was integral to the particular job.  With claimant's lack of 
 
         skills, his future opportunities without training will result in 
 
         opportunities for claimant most likely in the medium to heavy 
 
         duty work, in which case the condition of claimant's back is very 
 
         important.
 
         
 
              Claimant had a rather lengthy healing period.  It appears 
 
         claimant did not take full advantage of the rehabilitation 
 
         resources available as he could have.  The extent of claimant's 
 
         motivation is questionable.  It is not unusual that the nature of 
 
         one's injury and length of healing period can have an effect on 
 
         one's attitude and motivation and result in some functional 
 
         overlay.  The undersigned believes claimant can and should try 
 
         harder.  Claimant will have some residue as a result of his 
 
         permanent impairment.  Claimant must motivate himself more.  
 
         Claimant's age is in his favor.  He is young enough to try to 
 
         work through his problems and not feel sorry for himself.  A 
 
         positive attitude can overcome many difficulties.  Claimant is 
 
         acting as if he is writing off his future work life.  Claimant 
 
         should seek help from available sources to obtain future 
 
         education and skills. once this litigation is completed, 
 
         claimant's attitude and motivation hopefully will improve.
 
         
 
              Claimant has a loss of income because of his lack of work, 
 
         but motivation has affected this.  Claimant has a loss of earning 
 
         capacity due to his back impairment.  The law and the decisions 
 
         are clear that one can have an impairment to the body as a whole 
 
         in which the industrial disability can be less than, equal, or 
 
         more than the impairment rating to claimant's body as a whole.  
 
         Taking these criteria, in addition to the other criteria 
 
         considered but not specifically set out or individually 
 
         discussed, the undersigned finds claimant's industrial disability 
 
         is 15 percent.
 
         
 
              The defendants contend Dr. Walker and Dr. Valentine are not 
 
         authorized.  Claimant admitted he did not get defendants' 
 
         authorization and admitted he did know it was necessary. once 
 
         defendants understood claimant was seeking these doctors' 
 
         services, defendants mailed letters to claimant or claimant's 
 
         representative that these doctors were not authorized.  Claimant 
 
         testified he was not satisfied nor was he obtaining any relief 
 
         from the services of these defendants-chosen doctors.  Iowa Code 
 
         section 85.27 provides a method of seeking approval over the 
 
         defendant's objections if the facts warrant it.  Claimant did not 
 
         proceed as provided by statute.  It does not appear the help 
 
         claimant obtained from these doctors helped him nor did it
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U 
 
         Page 14
 
         
 
         
 
         decrease his ultimate impairment.  The basic result of Dr. 
 
         Walker's opinion is a substantially higher impairment rating.  
 
         This issue is in part entwined with the Iowa Code section 85.39 
 
         medical examination issue.  Defendants' doctor did render a 
 
         rating, as provided in Iowa Code section 85.39.  Claimant can and 
 
         did request an evaluation by Dr. Walker.  That application was 
 
         placed for final decision at this hearing.  Defendants were not 
 
         denying liability at the time of the 85.39 application, but it 
 
         appears defendants were disputing the extent of permanent 
 
         disability.  Claimant is entitled to an 85.39 medical examination 
 
         and the reimbursement of this cost or direct payment to Dr. 
 
         Walker.  The undersigned finds claimant's 85.39 application is 
 
         approved and defendants are responsible for that part of Dr. 
 
         Walker's bill for the medical evaluation.  The undersigned cannot 
 
         determine from the exhibits the exact cost of this plus 
 
         claimant's mileage.  The attorneys should be able to determine 
 
         this by provisions of the law.  The undersigned noted that the 
 
         application for 85.39 application was not on the proper form.  
 
         Normally, such applications are denied under the Industrial 
 
         Services Rule 343-3.1 if the proper application is not used.  
 
         Since it was not noted at the time of the order setting this 
 
         issue down at this time for hearing, violation of this rule will 
 
         not affect the undersigned's decision.  In the future, claimant 
 
         should use the proper form which is available at the Industrial 
 
         commissioner's office.
 
         
 
              As to the rest of claimant's bills involving Dr. Walker and 
 
         Dr. Valentine, claimant is responsible for payment of those bills 
 
         as the doctors were not authorized by the defendants as 
 
         previously discussed.  Claimant contends more treatment is 
 
         necessary by Dr. Walker.  Since claimant is not satisfied with 
 
         the doctors provided by defendants, claimant is not prevented 
 
         from seeking other medical services on his own.  Claimant 
 
         exercised this right with Dr. Walker.
 
         
 
              Defendants are responsible for the bills of Covenant Medical 
 
         Center and Radiologists, P.C., and mileage connected therewith.  
 
         The undersigned finds that the services and tests helped to 
 
         further determine claimant's condition.  Important tests were 
 
         performed that were not performed by the other doctors.  These 
 
         tests are commonly performed when accidents, injuries, or 
 
         complaints of this nature occur.
 
         
 
              There appears to be items on defendants' medical bills that 
 
         may come under the provisions of costs.  Those items that are 
 
         normally considered costs by the statute will be paid by the 
 
         parties ordered to pay the costs, in accordance with Division of 
 
         Industrial Services Rule 343-4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant incurred a 15 percent permanent partial 
 
         impairment to his body as a whole as a result of his work-related 
 
         injury on May 25, 1987.
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U
 
         Page 15
 
         
 
         
 
              2. Claimant's 15 percent permanent impairment to his body as 
 
         whole is the result of his work-related May 25, 1987 injury.
 
         
 
              3. Claimant incurred a healing period beginning May 26, 1987 
 
         to and including March 21, 1988 (43 weeks), October 31, 1988 to 
 
         and including November 12, 1988 (13 days), and January 10, 1989 
 
         to and including January 15, 1989 (6 days), all totaling 45.714 
 
         weeks at the rate of $74.89.
 
         
 
              4. Claimant needs to make greater effort to help himself and 
 
         seek the available rehabilitation and training to improve his 
 
         self-esteem and attitude.  Claimant lacks motivation.
 
         
 
              5. Dr. Walker and Dr. Valentine were not authorized doctors 
 
         under Iowa Code section 85.27.  Claimant is responsible for their 
 
         bills except as otherwise provided herein as to Dr. Walker and 
 
         Iowa Code section 85.39.
 
         
 
              6. Defendants are responsible for the costs of Dr. Walker's 
 
         85.39                           evaluation.
 
         
 
              7. Defendants shall pay Covenant Medical Center bills, on 
 
         behalf of the claimant, in the amount of $3,852.13 and  
 
         $2,919.93, and Radiologists, P.C., bills in the amount of 
 
         $600.35, plus claimant's mileage connected therewith.
 
         
 
              8. Claimant has a loss of earning capacity as a result of 
 
         his May 25, 1987 work injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant incurred a 15 percent permanent partial impairment 
 
         to his body as a whole which arose out of and in the course of 
 
         his employment on May 25, 1989.
 
         
 
              Claimant's 15 percent permanent partial impairment to his 
 
         body as a whole is causally connected to his work-related May 25, 
 
         1987 injury.
 
         
 
              Claimant incurred a healing period beginning May 26, 1987 to 
 
         and including March 21, 1988 (43 weeks), October 31, 1988 to and 
 
         including November 12, 1988 (13 days), and January 10, 1989 to 
 
         and including January 15, 1989 (6 days), all totaling 45.714 
 
         weeks at the rate of $74.89.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant lacks motivation.
 
         
 
              Defendants are not responsible for the doctor bills for Dr. 
 
         Walker and Dr. Valentine except as later set out regarding Dr. 
 
         Walker and the 85.39 evaluation.
 
         
 
              Defendants are responsible for the costs of Dr. Walker's 
 
         85.39                           evaluation.
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U
 
         Page 16
 
         
 
         
 
              Defendants shall pay Covenant Medical Center bills, on 
 
         behalf of the claimant, in the amount of $3,852.13 and 
 
         $2,919.93), and Radiologists, P.C., bills in the amount of 
 
         $600.35, plus claimant's mileage connected therewith.
 
         
 
              Claimant has a 15 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of seventy-four and 89/100 dollars ($74.89) 
 
         per week for the periods beginning May 26, 1987 to and including 
 
         March 21, 1988 (43 weeks), October 31, 1988 to and including 
 
         November 12, 1988 (13 days), and January 10, 1989 to and 
 
         including January 15, 1989 (6 days), totaling forty-five point 
 
         seven one four (45.714) weeks.
 
         
 
              That defendants shall pay unto claimant seventy-five (75) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         seventy-four and 89/100 dollars ($74.89) per week beginning March 
 
         22, 1988.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendants have previously paid 
 
         forty-three (43) weeks of healing period and twenty-five (25) 
 
         weeks (5%) of permanent partial disability benefits.
 
         
 
              That defendants are responsible for that part of Dr. 
 
         Walker's bill in reference to the 85.39 medical examination and 
 
         mileage connected therewith.
 
         
 
              That defendants shall pay Covenant Medical Center bills, on 
 
         behalf of the claimant, in the amount of three thousand, eight 
 
         hundred fifty-two and 13/100 dollars ($3,852.13) and two thousand 
 
         nine hundred nineteen and 93/100 dollars ($2,919.93), and 
 
         Radiologists, P.C., bills in the amount of six hundred and 35/100 
 
         dollars ($600.35), plus claimant's mileage connected therewith.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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 Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         MAUDSLEY V. PIZZA 2-U
 
         Page 17
 
         
 
         
 
              Signed and filed this 28th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Jerry Zimmermann 
 
         Attorney at Law 
 
         129 First Ave SW
 
         Cedar Rapids IA 52404
 
         
 
         Mr James E Shipman
 
         Mr James M Peters
 
         Attorneys at Law
 
         1200 MNB Building
 
         Cedar Rapids IA 52401
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803; 5-2503; 5-2502
 
                                         Filed March 28, 1990
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARK MAUDSLEY,
 
         
 
              Claimant,
 
         
 
         VS.                                            File No. 856330
 
         
 
         PIZZA 2-U,                                  A R B I T R A T I O 
 
         N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Claimant awarded 15% industrial disability.
 
         
 
         5-2503
 
         
 
              Claimant awarded some and denied some 85.27 benefits.
 
         
 
         5-2502
 
         
 
              Claimant was allowed an 85.39 medical examination.