before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            ALFRED GETTNER, 	      :
 
 		                      :
 
                 Claimant, 	      :      File No. 860259
 
                      		      :
 
		            vs.       :        A P P E A L
 
                		      :
 
            WILSON FOODS CORPORATION, :      D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 17, 1990 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            P.O. Box 535
 
            Cherokee, Iowa 51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 18, 1991
 
            BYRON K. ORTON
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            ALFRED GETTNER, 	      :
 
		                      :
 
                 Claimant,	      :       File No. 860259
 
                      		      :	
 
		            vs.       :         A P P E A L
 
                		      :
 
            WILSON FOODS CORPORATION, :       D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            17, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALFRED GETTNER,               :
 
                                          :         File Nos. 860259
 
                 Claimant,                :                   906560
 
                                          :                   913248
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            WILSON FOODS CORPORATION,     :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are proceedings in arbitration upon claimant's 
 
            petitions filed June 30, 1989.  Claimant sustained injuries 
 
            to his back on August 4, 1987 and February 27, 1989 and to 
 
            his left shoulder on February 13, 1988.  He now seeks 
 
            benefits under the Iowa Workers' Compensation Act from 
 
            defendant self-insured employer Wilson Foods Corporation.
 
            
 
                 Hearing on the arbitration petition was had in Storm 
 
            Lake, Iowa on July 26, 1990.  The record consists of 
 
            claimant's exhibits 1 through 28, inclusive, and 30 along 
 
            with defendant's exhibits 31 through 33 and the testimony of 
 
            claimant and Mark Sullivan.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained three injuries on the 
 
            dates alleged arising out of and in the course of his 
 
            employment; that each injury caused temporary disability; 
 
            that the 1987 back injury and 1988 shoulder injury caused 
 
            permanent disability, while the 1989 back injury did not; 
 
            that claimant seeks no further temporary total disability or 
 
            healing period benefits; that the 1987 back injury and 1988 
 
            shoulder injury caused industrial disability to the body as 
 
            a whole; that with respect to rate, claimant was at all 
 
            times married, entitled to three exemptions, and the 
 
            applicable average weekly wage for the 1987 injury was 
 
            $382.00 and $395.00 for the 1988 injury; that all requested 
 
            medical benefits have been or will be paid by defendant; 
 
            that prior to hearing, in addition to temporary total 
 
            disability or healing period benefits, defendant paid 50 
 
            weeks of compensation at the rate of $256.82 and 25 weeks of 
 
            compensation at the rate of $253.34.
 
            
 
                 The sole issue to be determined is the extent of 
 
            claimant's industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was 54 years of age at the time of hearing, 
 
            having been born on February 29, 1936.  Claimant found 
 
            school to be difficult and completed only the eighth grade.  
 
            He has not had further education.  Claimant is able to read 
 
            satisfactorily, but may have trouble with some words and his 
 
            spelling is weak.
 
            
 
                 Claimant's work history includes farm work, employment 
 
            with a gas station, road work, and employment with defendant 
 
            Wilson Foods Corporation since October, 1965.  Claimant 
 
            spent approximately 12 years in the hog kill department, 
 
            primarily chiseling heads and shaving hams.  He has also had 
 
            substantial employment in the boning room in different 
 
            positions.
 
            
 
                 Claimant injured his back on August 4, 1987 (case 
 
            number 860259) when he lifted a tub of meat trimmings known 
 
            as "special."  Claimant eventually underwent surgery to his 
 
            back on August 20, 1987 at the hands of Michael T. O'Neil, 
 
            M.D.  The surgery, for extruded disc herniation at L4-L5 on 
 
            the left, was described by Dr. O'Neil as a lumbar 
 
            laminectomy and L4 disc debridement with removal of extruded 
 
            fragment.  Claimant was returned to work with temporary 
 
            restrictions and finally given a release effective May 30, 
 
            1988, with a 35-pound maximum lifting restriction.
 
            
 
                 Claimant was also seen at the Midwest Back Center where 
 
            he completed an eight-week rehabilitation program under the 
 
            supervision of J. R. Cass, M.D.  A Functional Assessment 
 
            Overview was prepared by Philip C. Moe, R.P.T., on December 
 
            23, 1987.  This assessment found claimant able to lift 
 
            weights substantially higher than Dr. O'Neil's eventual 
 
            permanent restriction (occasionally up to 95 pounds from 
 
            desk to chair).  Dr. O'Neil did not at that time agree with 
 
            the assessment, which he attributed to Dr. Cass.  Physical 
 
            therapist Anthony C. Yurick wrote on January 7, 1988, that 
 
            claimant's functional range of motion was demonstrated to be 
 
            within normal limits.  In any event, Dr. O'Neil wrote on 
 
            June 20, 1988, that claimant was doing fairly well and 
 
            entitled to a 10 percent permanent impairment rating of the 
 
            body as a whole.
 
            
 
                 Claimant developed a shoulder injury that came on 
 
            gradually.  His left arm began developing numbness and pain, 
 
            and after Cortisone treatment failed to give relief, 
 
            claimant underwent surgery on November 7, 1988.  Dr. O'Neil 
 
            again performed the surgery, which involved the excision of 
 
            the lateral two centimeters of claimant's left clavicle upon 
 
            a diagnosis of traumatic arthritis to the acromioclavicular 
 
            joint of the left shoulder.
 
            
 
                 Dr. O'Neil returned claimant to work without 
 
            restrictions effective January 11, 1989.  On December 12, 
 
            1988, Dr. O'Neil wrote that he did not anticipate any 
 
            residual problems with the shoulder once the incision 
 
            healed.  However, Dr. O'Neil opined on June 15, 1989, that 
 
            claimant's residual weakness was permanent and resulted in a 
 
            5 percent impairment of the upper extremity as a result of 
 
            the surgical procedure.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was seen for evaluation by A. J. Wolbrink, 
 
            M.D., on November 8, 1989.  Dr. Wolbrink found claimant to 
 
            have some weakness with forward flexion and internal 
 
            rotation and assigned a permanent impairment rating of 3 
 
            percent of the left upper extremity or 2 percent of the 
 
            whole person.
 
            
 
                 Claimant was also seen for evaluation by Pat Luse, D.C.  
 
            Dr. Luse opined on February 22, 1990, that employing the 
 
            American Medical Association Guides to the Evaluation of 
 
            Permanent Impairment, claimant had sustained impairment to 
 
            the left shoulder equivalent to 4 percent of the whole man.  
 
            Dr. Luse also advised restrictions against repetitive motion 
 
            involving the left shoulder and low back or lifting more 
 
            than 20 pounds.  Although it is somewhat unclear, it appears 
 
            that the lifting restriction was imposed independently due 
 
            both to the back and shoulder impairments.
 
            
 
                 Dr. Luse also opined that claimant had sustained an 
 
            impairment to his low back equivalent to 15 percent of the 
 
            whole person.
 
            
 
                 Claimant also sustained an injury while lifting a vat 
 
            on February 27, 1989.  Claimant was released to return to 
 
            work effective May 30, 1989, by Keith O. Garner, M.D., with 
 
            the same lifting restriction of 35 pounds imposed by Dr. 
 
            O'Neil.  A CT scan performed on May 15, 1989, was read by 
 
            Jordan H. Hankins, M.D., as showing mild to moderate left 
 
            paramedian intervertebral disc bulge or protrusion at L4-L5 
 
            with mild further neural foraminal narrowing by facet joint 
 
            degenerative arthritis and a mild central posterior bulge at 
 
            L5-S1.  An MRI performed by Joel Elson, M.D., on June 21, 
 
            1990 showed post-operative changes relative the lumbar 
 
            laminectomy at L5 on the left, mild diffuse bulging of the 
 
            disc at L4-L5, no findings of significant epidural fibrosis 
 
            and no evidence of disc herniation or significant stenosis.
 
            
 
                 No evidence indicates that claimant has sustained 
 
            permanent impairment by reason of the 1989 back injury, 
 
            believed by Dr. O'Neil to be a ligamentous injury.
 
            
 
                 Claimant has continued to work the same job following 
 
            all three injuries.  However, the job has changed so that it 
 
            is now a little easier.  Claimant previously worked more 
 
            remunerative positions (jobs are classified by Wilson Foods 
 
            by "brackets," each bracket entailing a $.05 hourly raise).  
 
            Claimant has missed no work since his release in 1989.  
 
            However, he complains that his back and legs hurt all the 
 
            time with pain radiating to both legs, especially on the 
 
            right.  Pain level varies from day to day with his 
 
            activities and he experiences both sharp and dull pain.  
 
            Claimant continues taking physical therapy at his place of 
 
            employment three times per week, but complains of pain when 
 
            he finishes his work day.  Although he is able to perform 
 
            his job, he complains of inability to do heavy lifting at 
 
            home.  All but about two of some 75 jobs in the boning room 
 
            can be performed with a 35-pound lifting restriction.  Skill 
 
            requirements rather than brute strength determine the 
 
            bracket in which a particular job is placed.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 The extent of claimant's industrial disability remains 
 
            to be determined in case number 860259, the 1987 back 
 
            injury.  Based on the parties' stipulation as to claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            gross weekly wage, marital status and number of exemptions, 
 
            a review of the Guide to Iowa Workers' Compensation Claim 
 
            Handling booklet published by this office and effective July 
 
            1, 1987, shows that he is entitled to a weekly rate of 
 
            $245.84.
 
            
 
                 An important factor in evaluating claimant's industrial 
 
            disability is his ongoing employment relationship with 
 
            defendant.  A 35-pound weight restriction imposed by the 
 
            treating physician (and recommended limitations of 20 pounds 
 
            lifting and against repetitive work by Dr. Luse) 
 
            significantly limit the range of potential employment 
 
            available to a 54-year-old man with an eighth grade 
 
            education and work experience in farming, road work, gas 
 
            station employment (all before 1965) and substantial 
 
            experience in the meat packing industry.  But, it is also 
 
            significant that claimant has been employed for some 25 
 
            years with defendant and has continued to work the same job 
 
            following each of his three injuries.  This is clearly a 
 
            stable employment situation.  Yet, even if it unlikely that 
 
            claimant would actively seek other employment even in the 
 
            absence of the 1987 back injury, he of course had the 
 
            potential to do so.  The range of possible employment for 
 
            which claimant is suited may fairly be said to be 
 
            substantially narrowed by reason of his 35-pound lifting 
 
            restriction.  While claimant has done fairly well following 
 
            his laminectomy, Dr. O'Neil feels that he has sustained a 10 
 
            percent permanent impairment to the body as a whole.  The 
 
            fact that he has undergone surgery clearly makes him less 
 
            employable on the open labor market, particularly given his 
 
            age and limited education.  Even within his long-standing 
 
            employment relationship, while it is true that claimant 
 
            voluntarily bid for the job he now holds, he previously had 
 
            the potential to bid for higher-paying jobs that are not now 
 
            available because of the 35-pound lifting restriction.  In 
 
            fact, he has bid for but been refused jobs due to the 
 
            restriction.
 
            
 
                 Considering the record as a whole and these factors in 
 
            particular, it is held that claimant has sustained an 
 
            industrial disability of 25 percent of the body as a whole 
 
            by reason of his August 4, 1987 back injury.
 
            
 
                 The parties stipulated that the commencement date for 
 
            permanent partial disability should be May 29, 1989.  
 
            However, it is more appropriate to treat the cases involving 
 
            permanent disability separately.  Permanency benefits do not 
 
            substitute for actual lost income, but compensate for a 
 
            diminishment of earning capacity.  Claimant was returned to 
 
            work effective May 30, 1988 with a 35-pound lifting 
 
            restriction, thus ending his healing period.  The 
 
            commencement date of permanent partial disability in case 
 
            number 860259 is May 30, 1988.
 
            
 
                 With respect to the shoulder injury of February 13, 
 
            1988 (case number 906560), the parties stipulated to a gross 
 
            average weekly wage of $395.00.  The Guide to Iowa Workers' 
 
            Compensation Claim Handling effective July 1, 1987 reflects 
 
            a rate of $253.34 for a similarly situated married 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            individual with three exemptions.
 
            
 
                 Dr. O'Neil released claimant to return to work 
 
            following his shoulder surgery on January 11, 1989.  No 
 
            restrictions were imposed.  Based on residual weakness, Dr. 
 
            O'Neil opined that claimant had sustained a 5 percent 
 
            impairment of the upper extremity by reason of his surgery.  
 
            However, even though Dr. O'Neil expressed his impairment 
 
            opinion in terms of the upper extremity, it seems clear that 
 
            the surgery and resultant disability invaded the body as a 
 
            whole and should be compensated industrially as per the 
 
            stipulation of the parties.  Dr. Wolbrink found residual 
 
            weakness and assigned an impairment rating of 2 percent of 
 
            the whole person.  Dr. Luse was of the view that claimant 
 
            had sustained an impairment to the shoulder equivalent to 4 
 
            percent of the whole person and suggested restriction from 
 
            repetitive motion and against lifting more than 20 pounds, 
 
            although these suggestions are more restrictive than the 
 
            limits imposed by the treating physician.
 
            
 
                 While claimant may not have additional restrictions 
 
            beyond those imposed by reason of his back injury, it seems 
 
            clear that his desirability as a potential employee has been 
 
            further diminished by reason of the shoulder injury.  
 
            Claimant shall be awarded industrial disability of 5 percent 
 
            of the body as a whole, or 25 weeks, by reason of the 
 
            February 13, 1988 work injury to his left shoulder in case 
 
            number 906560.  As claimant was released to return to work 
 
            January 11, 1989 without restrictions, his healing period 
 
            ended and permanency benefits shall commence on that date.
 
            
 
                 Although claimant sustained an injury to his back on 
 
            February 27, 1989 (case number 913248), he has not sustained 
 
            additional impairment or industrial disability resulting 
 
            from that incident.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In case number 860259, defendant is to pay unto 
 
            claimant one hundred twenty-five (125) weeks of permanent 
 
            partial disability benefits at the rate of two hundred 
 
            forty-five and 84/100 dollars ($245.84) per week commencing 
 
            May 30, 1988, and totalling thirty thousand seven hundred 
 
            thirty and 00/100 dollars ($30,730.00).
 
            
 
                 In case number 906560, defendant shall pay unto 
 
            claimant twenty-five (25) weeks of permanent partial 
 
            disability benefits at the rate of two hundred fifty-three 
 
            and 34/100 dollars ($253.34) per week commencing January 11, 
 
            1989, and totalling six thousand three hundred thirty-three 
 
            and 50/100 dollars ($6,333.50).
 
            
 
                 In case number 913248, claimant shall take nothing 
 
            further from this proceeding.
 
            
 
                 No award shall be made with respect to temporary total 
 
            disability or healing period benefits in any of these 
 
            consolidated cases as no such award is sought.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Defendant shall have credit for all permanent partial 
 
            disability benefits voluntarily made to claimant prior to 
 
            hearing.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to defendant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            632-640 Badgerow Building
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed August 17, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALFRED GETTNER,               :
 
                                          :         File Nos. 860259
 
                 Claimant,                :                   906560
 
                                          :                   913248
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            WILSON FOODS CORPORATION,     :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Permanent partial disability benefits awarded in cases of 
 
            back and shoulder injuries.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JAMES SCHARPER,	      :
 
                      		      :
 
                 Claimant, 	      :
 
          		              :         File No. 860288
 
            vs.       		      :
 
 		                      :           A P P E A L
 
            SUPER VALU STORES, INC.,  :
 
		                      :         D E C I S I O N
 
                 Employer, 	      :
 
  		                      :
 
            and   		      :
 
                      		      :
 
            LIBERTY MUTUAL 	      :
 
		INSURANCE CO., 	      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed February 23, 1990, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ______________________________
 
                             BYRON K. ORTON
 
                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           9998
 
                           Filed November 25, 1991
 
                           BYRON K. ORTON
 
                           LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
        		              :
 
            JAMES SCHARPER, 	      :
 
                      		      :
 
                 Claimant, 	      :
 
                      		      :
 
            vs.       		      :
 
                     		      :         File No. 860288
 
            SUPER VALU STORES, INC.,  :
 
                      		      :           A P P E A L
 
                 Employer,            :
 
       		                      :         D E C I S I O N
 
            		and 	      :
 
		                      :
 
            LIBERTY MUTUAL 	      :
 
		INSURANCE CO., 	      :
 
                		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            23, 1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES SCHARPER,
 
         
 
              Claimant,                               File No. 860288
 
          
 
         vs.                                       A R B I T R A T I O N
 
         
 
         SUPER VALU STORES, INC.,                     D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 23 1990
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by James 
 
         Scharper, claimant, against Super Valu Stores, Inc., employer 
 
         (hereinafter referred to as Super Valu), and Liberty Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on August 
 
         10, 1987.  On August 15, 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 August 10, 1987, claimant received an injury which 
 
         arose out of and in the course of his employment with Super Valu.
 
         
 
              2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $147.72.
 
         
 
              4.  All requested medical bills have been or will be paid by 
 
         defendants.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Taken under advisement at hearing was the issue of the 
 
         admissibility of claimant's exhibit AA, a portion of the AMA 
 
         Guides, for evaluating permanent functional impairment.  First, 
 
         as the document was not timely served upon defendants prior to 
 
         hearing it must be excluded under the hearing assignment order. 
 
         However, even if it had been timely served, it would not be 
 
         admissible.  No expert rendering an opinion in this case has 
 
         indicated that such guides were used to arrive at expert 
 
         opinions. It is apparently being offered to allow this 
 
         administrative law judge to find permanent partial impairment 
 
         independent of expert opinion.  Such guides are developed by 
 
         health care professionals in rating impairment, not for such use 
 
         by administrative law judges.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
               I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
              II.  The extent of claimant's entitlement to weekly benefits 
 
         for 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 testified that he worked for Super Valu from 
 
         October 26, 1986 until October 2, 1987, as a mail messenger 
 
         clerk.  He stated that his duties consisted of running errands, 
 
         operating a printer and occasional warehouse work involving 
 
         lifting of material weighing from 50 to 60 pounds.  Claimant's 
 
         supervisor testified that claimant was discharged effective 
 
         October 2, 1987, after the work injury due to his overall poor 
 
         performance. Claimant asserts that he was discharged due to his 
 
         work injury. Claimant's personnel file indicates dissatisfaction 
 
         with claimant's tardiness and inattentiveness to duties beginning 
 
         in April of 1987, at which time he was warned he would be 
 
         dismissed if such conduct continued.
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that while attempting to carry a case of 
 
         lettuce, he slipped and fell landing on his back on the top of a 
 
         pallet lying on the floor.  Claimant stated that his back then 
 
         began to hurt and he sought treatment from the company doctor. 
 
         After a couple of days off, this physician returned claimant to 
 
         work to only light duty.  Claimant said that he worked only 
 
         part-time at Super Valu during his recovery period.  He said that 
 
         his wife then became ill and his absence from full time work at 
 
         Super Valu financially necessitated him to obtain additional 
 
         employment as a clerk at K-Mart.  Claimant said that this work 
 
         did not violate any of the restrictions imposed by the company 
 
         doctor. After three weeks, Super Valu found out about the K-Mart 
 
         job and pressured him to quit the second job by stating to him 
 
         that his workers' compensation benefits would be cut off unless 
 
         he did so. Claimant said that he then ended his K-Mart employment 
 
         and sought a full release from the company doctor.  When claimant 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         delivered a full release on September 17, 1987, to Super Valu, 
 
         claimant was told that he would be discharged for cause in two 
 
         weeks due to poor performance.  Claimant's supervisor denies that 
 
         the work injury had anything to do with their decision to 
 
         discharge claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that despite his release by the company 
 
         doctor, he still experienced back problems and only sought this 
 
         release to enable him to return to full duty and increase his 
 
         income.  However, it was not until March 1988, approximately five 
 
         months after his discharge, that he sought further treatment.  At 
 
         this time, he reported to his family doctor that he experienced a 
 
         recurrence of severe back pain from "turning over in bed." 
 
         Claimant was then referred for treatment to William Boulden, 
 
         M.D., an orthopedic surgeon.  Dr. Boulden diagnosed that claimant 
 
         was suffering from a degenerative disc at the L4-5 level of the 
 
         spine and that the injury was to claimant's "soft tissue" which 
 
         he treated with physical therapy and exercises.  Dr. Boulden 
 
         stated that claimant reached maximum healing on April 20, 1988.  
 
         With reference to causal connection and the extent of claimant's 
 
         disability from the injury, Dr. Boulden stated as follows on July 
 
         25, 1988:
 
         
 
              I cannot state with any type of medical probability that the 
 
              degeneration that we found at L4-5 (early) was related to 
 
              the August 8, 1987, [sic] injury.  At best all I could say 
 
              is that he had some aggravation of this.  Overall I would 
 
              not feel that he did not sustain any permanency from this 
 
              injury since we feel this symptom complex was a myofascial 
 
              problem.
 
         
 
         (Joint Exhibit 1, page 8)
 
         
 
              In October 1988, Jerome Bashara, M.D., another orthopedic 
 
         surgeon, evaluated claimant at the request of claimant's 
 
         attorney. He opined that claimant has suffered a five percent 
 
         permanent partial impairment due to the fall on August 10, 1987.
 
         
 
              In April 1989, claimant returned to Dr. Boulden and reported 
 
         to him that his symptoms have not improved.  However, Dr. Boulden 
 
         did not change any of his original diagnosis or recommendations 
 
         for treatment.  With reference to prognosis at that time, Dr. 
 
         Boulden stated as follows:
 
         
 
              At this time, I feel the patient, as long as he uses his 
 
              back properly and continues exercising and stretching, that 
 
              his symptoms can be tolerable and can function.  I still 
 
              would not recommend doing activities where he does bending 
 
              and twisting with his back.  I would not change my 
 
              recommendations for treatment.
 
         
 
         (Ex. 1, p. 10)
 
         
 
              Claimant testified that he had no back problems before the 
 
         fall of August 10, 1987.  He states that at the present time his 
 
         back is still stiff with occasional pain with strenuous activity. 
 
         He states that he cannot sit or stand for prolonged periods of 
 
         time.  He testified that he continues to take medication when 
 
         symptoms arise.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that his past employment consists of 
 
         washing cars, assistant manager of a pizza restaurant and a 
 
         salesclerk.  He said that after leaving Super Valu he has applied 
 
         for work with a printing company and a vacuum cleaner sales firm. 
 
         He stated that he could not accept such employment when he found 
 
         out the jobs required heavy lifting.  He said that he found 
 
         suitable employment running errands for a painting and decorating 
 
         business in January 1989, but this job ended when the business 
 
         closed.  At the time of hearing claimant said he was currently 
 
         unemployed and would like to get a part-time job so he could 
 
         attend a local community college.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant is 
 
         found credible.
 
              
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden. v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the case sub judice, the issue of the causal connection 
 
         of the injury to the claimed disabilities involve analysis of the 
 
         two expert opinions submitted in this case.  Defendants argue 
 
         that this administrative law judge should give greater weight to 
 
         Dr. Boulden as he was the treating physician and more clinically 
 
         involved in claimant's case.  Normally, this would be the case. 
 
         However, Dr. Boulden's opinions are rather confusing.  The July 
 
         1988 report quoted in the statement of facts is somewhat 
 
         contradictory in the doctor's use of a double negative sentence 
 
         in the second paragraph.  Also, in that report, he states that 
 
         claimant's injury is only a soft tissue injury and, therefore, is 
 
         not permanent because symptoms will subside over time.  However, 
 
         when he was told in April 1989 by claimant that his symptoms have 
 
         not decreased, Dr. Boulden did not change his original opinion. 
 
         The doctor offers no explanation as to why his position should 
 
         not change due to persistence of symptoms.  Also, he appears to 
 
         restrict claimant's future physical activity in the report of the 
 
         April 1989 evaluation.  The doctor never explained how a person 
 
         can have limitations on activity and not suffer a permanent 
 
         partial impairment.  On the other hand, Dr. Bashara was clear and 
 
         unequivocal in his letter report.  He simply states that claimant 
 
         has a five percent impairment due to his continuing difficulties. 
 
         This appears to be the most credible opinion which is consistent 
 
         with claimant's credible testimony.  Claimant's testimony with 
 
         reference to the fact that he had no problems prior to the work 
 
         injury and still is suffering symptoms is uncontroverted. 
 
         Therefore, it will be found that claimant suffers from a five 
 
         percent permanent partial impairment as a result of the August 
 
         10, 1987 injury.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  Claimant was fully able to perform physical tasks 
 
         such as heavy lifting, bending, twisting and stooping and 
 
         prolonged sitting and standing.  Claimant's physicians have 
 
         recommended a restriction on his bending and twisting in the 
 
         future.  Claimant states that he has difficulty lifting, sitting 
 
         and standing for prolonged periods of time.  Claimant's medical 
 
         condition limits his abilities to perform heavy manual labor 
 
         positions.
 
         
 
              Claimant has not shown that his termination at Super Valu 
 
         was due to his work injury due to the extensive documentation and 
 
         the evidence concerning his supervisor's dissatisfaction with his 
 
         job performance prior to the work injury.  Therefore, no part of 
 
         the award in this decision is attributable to his loss of work at 
 
         Super Valu.
 
         
 
              Claimant is young and a high school graduate.  He should be 
 
         able with some retraining to secure suitable employment in a 
 
         labor market in the foreseeable future.  However, at the present 
 
         time he is disabled and his disability should be fully 
 
         compensated.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 20 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 100 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 20 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits during his 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until he returns to work; until he is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of the injury; or, until it is indicated 
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.  The issue of why claimant was discharged 
 
         in October 1987, is irrelevant to the issue of whether he is 
 
         entitled to reinstatement of his healing period benefits in March 
 
         1988.  It is clear that Dr. Boulden felt that treatment at the 
 
         time was causally connected to the injury.  It is clear that he 
 
         was not working before the time he reached maximum healing and 
 
         was released by Dr. Boulden on April 20, 1988.  Claimant will be 
 
         awarded healing period benefits according.  There is nothing in 
 
         Iowa Code section 85.34(1) which would deny healing period 
 
         benefits to an injured worker who was discharged for cause during 
 
         his healing period.  I can find no agency precedent or supreme 
 
         court ruling that has ruled on such a matter.
 
         
 
                                 FINDINGS OF FACT
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
         
 
              2.  The work injury of August 10, 1987, is a cause of an 
 
         additional period of disability from work from March 6, 1988 
 
         through April 20, 1988.  During this period of time, claimant was 
 
         absent from work and received treatment of the work injury 
 
         consisting of various treatment modalities such as limitations on 
 
         activities; medications for pain and inflammation; home exercises 
 
         and supervised physical therapy.
 
         
 
              3.  The work injury of August 10, 1987, is a cause of a five 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of limited lifting, bending, twisting, sitting and 
 
         standing.  Claimant had no ascertainable functional impairment 
 
         prior to the work injury.
 
         
 
              4.  The work injury of August 10, 1987, and the resulting 
 
         permanent partial impairment is a cause of a 20 percent loss of 
 
         earning capacity.  Claimant is 22 years of age and has a high 
 
         school education.  Claimant had no ascertainable loss of earning 
 
         capacity prior to the work injury.  Claimant's physical 
 
         limitations prevent him from returning to heavy manual labor 
 
         jobs. Claimant's employment in manual labor occupations requiring 
 
         heavy lifting is a significant portion of his past employment 
 
         history. However, claimant has had experience in clerical jobs 
 
         and sales jobs not requiring heavy lifting.  Given his age and 
 
         appearance at hearing, claimant has good potential to return to 
 
         the work force in suitable employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to an 
 
         additional 6 2/7 weeks of healing period benefits and 100 weeks 
 
         of permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the rate of one 
 
         hundred forty-seven and 72/100 dollars ($147.72) per week from 
 
         April 21, 1988.
 
              
 
              2.  Defendants shall pay healing period benefits for the 
 
         periods of time set forth in finding number two above at the rate 
 
         of one hundred forty-seven and 72/100 dollars ($147.72) per week.
 
              
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
              
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              5.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 23rd day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 - 73rd St, Suite 16
 
         Des Moines, IA  50312
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed February 23, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES SCHARPER,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 860288
 
         
 
         SUPER VALU STORES, INC.,                  A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier, 
 
              Defendants.
 
         
 
         
 
         
 
         5-1803 - Extent of disability benefits - Nonprecedential