BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERON ROSSOW,                       File Nos. 865887 & 812650
 
         
 
              Claimant,                         A R B I T R A T I O N
 
                                            
 
         vs.                                       D E C I S I O N
 
         
 
         IOWA POWER & LIGHT COMPANY,                  F I L E D
 
         
 
              Employer,                              MAY 09 1989
 
              Self-Insured,
 
              Defendant.                    IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are arbitration proceedings brought by Sheron Rossow, 
 
         claimant, against Iowa Power and Light Company, self-insured 
 
         employer, defendant.  The cases were heard by the undersigned in 
 
         Council Bluffs, Iowa on April 4, 1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Alice Sundrup and Eileen 
 
         Lewis. The record additionally consists of claimant's exhibits 
 
         1-57 and defendant's exhibits 1-10.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on April 4, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether there is a causal relationship between the 
 
         alleged injuries and the disability;
 
              
 
              2.  Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits; and,
 
              
 
              3.  Whether claimant is an odd-lot doctrine employee.
 
              
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  These stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2.  That claimant sustained injuries on December 17, 1985 
 
         and June 25, 1987 which arose out of and in the course of 
 
         employment with employer;
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3.  That the alleged injury is a cause of temporary 
 
         disability during a period of recovery;
 
         
 
              4.  That the time off work for which claimant now seeks 
 
         either temporary total disability or healing period benefits is 
 
         stipulated to be from December 19, 1985 to July 22, 1986, and 
 
         from June 26, 1987 to July 8, 1988;
 
         
 
              5.  The type of permanent disability, if the injury is found 
 
         to be a cause of permanent disability, is stipulated to be an 
 
         industrial disability to the body as a whole; and the 
 
         commencement date for permanent partial disability, in the event 
 
         such benefits are awarded, is stipulated to be for the first 
 
         injury, July 23, 1986, and for the second injury, June 9, 1988; 
 
         and,
 
         
 
              6.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $285.46 per week for the 
 
         first injury and $287.35 per week for the second injury; and 
 
         claimant is married with two exemptions.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified she commenced her employment with 
 
         defendant on February 6, 1978.  Claimant was hired as a 
 
         stenographer and then as a secretary, positions she held for a 
 
         period of time.  During this time frame, claimant was not a 
 
         member of any union, although a collective bargaining unit for 
 
         the clerical workers was instituted at defendant's place of 
 
         business.
 
         
 
              Claimant reported she became dissatisfied with clerical and 
 
         bookkeeping positions.  These were the types of jobs she had held 
 
         for the duration of her working career.  Consequently, claimant 
 
         reported, she applied for a position with the physical unit at 
 
         defendant's place of business.  Claimant testified she eventually 
 
         filed a civil rights complaint on the basis that she was refused 
 
         a position.  Eventually, claimant stated she was hired into the 
 
         physical unit where she worked as a laborer.  Then claimant began 
 
         working as a meter reader.  Claimant became a member of I.B.E.W., 
 
         Local 499.
 
         
 
              During her hearing, claimant described the incidents 
 
         surrounding her work related injuries on December 17, 1985 and on 
 
         June 25, 1987.  After the first injury, claimant had a lumbar 
 
         laminectomy at L4-L5.  This was claimant'.s second back surgery. 
 
         She had had a previous laminectomy in 1974 which was unrelated to 
 
         any work situation.  Claimant testified she returned to her 
 
         normal duties after her first surgery, but she was unable to 
 
         return to work after her second surgery until July 22, 1986.  
 
         After claimant's second work injury, she testified she attempted 
 
         to return to work as a meter reader on February 29, 1988.  She 
 
         then worked for two full days and for part of another day.  
 
         However, claimant testified she had a severe headache and an 
 
         intense pain in her left leg.  According to claimant, her pain 
 
         was so severe she had to lie down in her truck to rest.  As a 
 
         result, claimant testified she drove her truck back to the work 
 
         center, reported her pain to her supervisor, Mr. Jim Mossman.  He 
 
         contacted the workers' compensation director, Mary Nelson.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated she did not return to work after February of 
 
         1988.  She remarked that no light duty position within the 
 
         physical unit had been offered to her although she maintained 
 
         there were positions dealing with inventorying equipment and 
 
         there were positions in the storeroom which were light duty jobs. 
 
         Claimant stated these light duty positions had been offered to 
 
         other physical unit workers.
 
         
 
              Claimant did reveal she had been offered a position within 
 
         the clerical unit.  The position she indicated was known as a 
 
         rotating service representative.  Claimant understood the job 
 
         involved prolonged sitting, talking on the telephone, some 
 
         lifting of small trunks and buckets, and some sorting of mail.  
 
         Claimant indicated she had contacted the chief union steward of 
 
         the clerical unit relative to the job offer.  Claimant reported 
 
         she did not believe an injured employee under the physical unit 
 
         could be placed in a job in the clerical unit because there was a 
 
         bidding process for awarding jobs.  Claimant testified she had no 
 
         knowledge of any man being changed from one unit to another.
 
         
 
              Claimant, through her attorney, initially turned down the 
 
         position as a rotating service representative.  She thought the 
 
         offer was a sham.  Later, claimant, again through her attorney, 
 
         indicated she would attempt to work at the position.  However, in 
 
         the interim, the position was filled by another employee of 
 
         defendant.
 
         
 
              Claimant testified she believed another position would be 
 
         offered to her.  However, claimant revealed she received a letter 
 
         from defendant terminating her workers' compensation benefits on 
 
         July 9, 1988.
 
         
 
              Claimant indicated she is currently able to do all of her 
 
         household chores, including vacuuming and sweeping.  She also 
 
         indicated she does light yard work but she has given up flower 
 
         gardening.  Claimant also reported she went golfing four or five 
 
         times during the prior year, that she walked the course and that 
 
         she carried her own golf bag.
 
         
 
              Claimant revealed she has only looked for a few positions 
 
         outside of employment with defendant.  Claimant has not been 
 
         successful in securing a position.
 
         
 
              Alice Sundrup testified for claimant.  She reported she is 
 
         the chief union steward for the clerical unit and that she has 
 
         been a steward since the onset of the collective bargaining unit. 
 
         Ms. Sundrup testified she is familiar with the duties of a 
 
         rotating service representative.  She reported the job involves 
 
         lifting mail buckets, bending, stooping, receiving telephone 
 
         calls from customers, and that the position is stressful because 
 
         of the customer contacts.
 
         
 
              Ms. Sundrup also reported that the clerical unit and the 
 
         physical unit are separate and distinct bargaining units.  She 
 
         stated she is not aware a person in one unit can transfer to a 
 
         light duty position in another unit.  Ms. Sundrup also reported 
 
         she cannot recall a male employee from the physical unit 
 
         transferring to a light duty job in the clerical unit.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Ms. Sundrup further stated she had been contacted by 
 
         claimant relative to the rotating service representative.  Ms. 
 
         Sundrup revealed she would have had complaints from other 
 
         clerical workers if claimant had taken the position offered to 
 
         her.  Alice also reported that if claimant would have accepted 
 
         this position, claimant would have lost her union seniority with 
 
         the physical unit but she would have retained her company 
 
         seniority.
 
         
 
              Under cross-examination, Ms. Sundrup testified a job bid is 
 
         kept open for seven days.  After seven days, if there is no bid, 
 
         the job is opened to the public.  Ms. Sundrup reported she was 
 
         unaware whether anyone had bid the position in question within 
 
         the seven day requisite period.  Ms. Sundrup also reported she 
 
         thought a light duty job was given to employees for 90 days but 
 
         she acknowledged some employees were in light duty jobs for 
 
         periods greater than 90 days.
 
         
 
              Ms. Eileen Lewis testified for defendant.  She reported she 
 
         is the clerical supervisor and that she has held this position 
 
         for 11 or 12 years.  Ms. Lewis described the position of rotating 
 
         service representative.  She indicated the position is on a 15 
 
         week rotating schedule where the duties change somewhat.  Ms. 
 
         Lewis reported there is no lifting of heavy trunks but there is 
 
         lifting of buckets.  Ms. Lewis also testified a service 
 
         representative is usually at her work station but a 
 
         representative is allowed to get up and walk around while talking 
 
         on the phone, pulling files, or sorting mail.  Ms. Lewis 
 
         indicated it is not problematic for any employee to stand at a 
 
         work station every 30 minutes for one or two minutes.
 
         
 
              Ms. Lewis testified Mr. Lloyd Hornback, vice president, 
 
         contacted her about claimant being offered the position.  Ms. 
 
         Lewis also reported the position was filled by another employee 
 
         but that the person did not bid the position within the seven day 
 
         requisite period.
 
         
 
              Ms. Lewis also reported the clerical employees are often 
 
         dissatisfied when employees are off work for prolonged periods of 
 
         time.  If an employee,,cannot handle all of the job duties, Ms. 
 
         Lewis reported her employees complain.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on December 17, 1985 and June 
 
         25, 1987, which arose out of and in the course of her employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of December 17, 1985 and June 25, 
 
         1987, are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              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, 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, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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.
 
         
 
              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); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
         also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist 
 
         v. Shenandoah Nurseries, 218 Iowa 724, 254.  N.W. 35 (1934).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking
 
              for the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was 
 
              indicating.justified a finding of "industrial disability." 
 
              Therefore, if a worker is placed in a position by his 
 
              employer after an injury to the body as a whole and because 
 
              of the injury which results in an actual reduction in 
 
              earning, it would appear this would justify an award of 
 
              industrial disability.  This would appear to be so even if 
 
              the worker's "capacity" to earn has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden, 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101 (Iowa 1985), a worker becomes an odd-lot employee when an 
 
         injury makes the worker incapable of obtaining employment odd-lot 
 
         worker worker can or quantity exist.  Id., 230 Lee v. Minneapolis 
 
         Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 
 
         (1050). The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima facie 
 
         in the odd-lot category, the burden should be on the employer to 
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         non-compensable by adding a presumption that light work is 
 
         available. Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton 373 
 
         N.W.2d at 106.  The court went on to state:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The commissioner did not in his analysis address any of the 
 
              other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  See 
 
              McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 
 
              1980).
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935) the court, addressing the issue of the meaning of 
 
         disability stated:
 
         
 
                   What is "permanent total disability"?  Does this clause 
 
              refer to "functional disability" or to "industrial 
 
              disability"?
 
         
 
                   For clearness we shall use the term "industrial 
 
              disability" as referring to disability from carrying on a 
 
              gainful occupation--inability to earn wage.  By "functional 
 
              disability" we shall refer to the disability to perform one 
 
              or more of the physical movements which a normal human being 
 
              can perform.
 
         
 
                   ....
 
         
 
                   It is obvious that "disability" here used cannot refer 
 
              to mere "functional disability",...
 
         
 
                   It is...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 terms of percentages of the total physical 
 
              and mental ability of a normal man.
 
         
 
                   ....
 
         
 
              ...[T]he Compensation law was passed for the purpose of 
 
              compensating the working man when injured.  The loss which 
 
              this claimant suffered due to the injury which he received 
 
              while in the employ of the company is the inability to carry 
 
              on the work he was doing prior to the time of the injury, or 
 
              any work which he could perform.  This man at fifty-nine 
 
              years of age, after thirty years as a street car motorman, 
 
              with little education, cannot find or hold a position that 
 
              would not require some manual labor, and, of course, due to 
 
              the condition of his back, he cannot perform such work.  To 
 
              say that he might become a stenographer or a lawyer or a 
 
              clerk or a bookkeeper is to suppose the impossible, for a 
 
              fifty-nine-year old man, with no education, is not capable 
 
              of securing or filling any such position.  His disability 
 
              may be only a twenty-five or thirty per cent disability 
 
              compared with the one hundred per cent perfect man, but, 
 
              from the standpoint of his ability to go back to work to 
 
              earn a living for himself and his family, his disability is 
 
              a total disability, for he is not able to again operate the 
 
              street car and perform the work which the company demanded 
 
              of him prior to the time of the accident.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that her injuries on December 17, 1985 and June 25, 1987, are 
 
         causally related to the disability on which she now bases her 
 
         claim.  There is medical testimony to substantiate the necessary 
 
         causal connection.
 
         
 
              Dr. Daniel L. McKinney, M.D., FACS, writes in his letter of 
 
         April 7, 1988:
 
         
 
              I first examined Sheron Rossow in my office on August 4, 
 
              1987.  Mrs. Rossow gave a history of having fallen on ice in 
 
              December, 1985 while at work.  She eventually underwent 
 
              lumbar disc surgery by Dr. R. Schuyler Gooding in January, 
 
              1986.  It should be noted that in 1975 she had also 
 
              undergone lumbar disc surgery by Dr. Maurice Margules.  She 
 
              had good relief from 1975 but did not respond as well after 
 
              January, 1986.  She was eventually able to return to work 
 
              but reinjured her back when she stepped in a hole on the job 
 
              on June 25, 1987.  My examination at that time revealed mild 
 
              weakness of the right hamstring muscle.  Straight leg 
 
              raising test produced pain in the back at 40o on the right.
 
         
 
              It was my impression that Mrs. Rossow had suffered a lumbar 
 
              strain and damage to a lumbar disc.  I thought she might be 
 
              also suffering from a thoracic outlet syndrome but since 
 
              that time I have dismissed that diagnosis.
 
         
 
                   ....
 
         
 
              I believe that Mrs. Rossow has suffered an additional 5-10o 
 
              injury to the body as a whole as a result of her second 
 
              injury.  I do not believe that she will be able to return to 
 
              her work at Iowa Power and Light.  I think, however, that it 
 
              is possible that she could be retrained for a lighter more 
 
              sedentary type of employment in the future.  If you have any 
 
              questions concerning this, please feel free to contact me.
 
         
 
              Dr. Bernard L. Kratochvil, M.D., also writes in his report 
 
         of March 16, 1989:
 
         
 
              This woman continues to have complaints of discomfort in the 
 
              neck and lower back as the result of a fall which occurred 
 
              in 1985, and a second fall which occurred in 1987.  She has 
 
              had considerable orthopedic and neurosurgical evaluation, 
 
              along with attendance at a pain clinic.  It is my opinion 
 
              that she has a 5% impairment of the whole body as a result 
 
              of her injuries....
 
         
 
              There is also the testimony of claimant.  She testified she 
 
         had recovered from her first back surgery in 1973.  It was not 
 
         until her fall on December 17, 1985 that claimant began having 
 
         back problems.  Between 1974 and December 17, 1985, claimant had 
 
         led an active life as a working mother who coached little league, 
 
         who gardened, and who acted as a 4-H leader.  Even after her 
 
         second surgery, claimant was able to return to her position as a 
 
         meter reader.  It was not until the fall in 1987 that claimant 
 
         claimed she was unable to return to that position.  In light of 
 
         the foregoing, it is the determination of the undersigned that 
 
         claimant has established the requisite causal connection.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The next issue to discuss is the issue of permanency.  As 
 
         mentioned previously, claimant has had a prior back condition 
 
         which is unrelated to her work.  She had surgery performed on 
 
         December 12, 1979, for a herniated lumbar disc at the L4, L-5 
 
         region.  Medical records do not establish any functional 
 
         impairment subsequent to the first surgery.
 
         
 
              Subsequent to the second surgery, claimant was evaluated by 
 
         her surgeon, R. Schuyler Gooding, M.D.  He determined that as of 
 
         May 2, 1987, claimant had a functional impairment of 20 percent 
 
         of the body as a whole.  This evaluation did not take into 
 
         account the fall in 1987.
 
         
 
              Claimant was also evaluated by Daniel L. McKinney, M.D., a 
 
         neurological surgeon.  He writes in his report of April 7, 1988:
 
         
 
              I first examined Sheron Rossow in my office on August 4, 
 
              1987.  Mrs. Rossow gave a history of having fallen on ice in 
 
              December, 1985 while at work.  She eventually underwent 
 
              lumbar disc surgery by Dr. R. Schuyler Gooding in January, 
 
              1986.  It should be noted that in 1975 she had also 
 
              undergone lumbar disc surgery by Dr. Maurice Margules.  She 
 
              had good relief from 1975 but did not respond as well after 
 
              January, 1986.  She was eventually able to return to work 
 
              but reinjured her back when she stepped in a hole on the job 
 
              on June 25, 1987.  My examination at that time revealed mild 
 
              weakness of the right hamstring muscle.  Straight leg 
 
              raising test produced pain in the back at 40o on the right.
 
         
 
              It was my impression that Mrs. Rossow had suffered a lumbar 
 
              strain and damage to a lumbar disc.  I thought she might be 
 
              also suffering from a thoracic outlet syndrome but since 
 
              that time I have dismissed that diagnosis.
 
         
 
                   ....
 
         
 
              Mrs. Rossow returned to my office on September 25, 1987 
 
              still complaining of low back pain and right lower extremity 
 
              pain and some lesser neck and right upper extremity pain.  
 
              Because of the persistence of her complaints I recommended a 
 
              myelogram to her.
 
         
 
              The myelogram was performed on September 28, 1987.  This was 
 
              normal in the lumbar region but did show a central disc type 
 
              defect in the cervical region.  This was at the sixth 
 
              cervical disc level.  Since most of her complaints were in 
 
              the lower back and right lower extremity and since the disc 
 
              bulging was more central than lateral I did not feel that it 
 
              warranted surgical treatment.
 
         
 
              Mrs. Rossow continued to be managed in a conservative 
 
              fashion.  She tried home traction but this did not help her 
 
              and in fact caused headaches.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Mrs. Rossow returned to my office on November 13, 1987.  Her 
 
              headaches were somewhat better but she was having more 
 
              numbness in her right lower extremity.  Her arm pain had 
 
              improved considerably.
 
         
 
              Because of the persistence of her complaints, Mrs. Rossow 
 
              was seen at the University of Nebraska Pain Center in 
 
              January, 1988.  I am enclosing a copy of that report.
 
         
 
              Mrs. Rossow last returned to my office on March 28, 1988.  
 
              She stated that the Pain Clinic had helped her to be more 
 
              active but that she continued to have low back pain.  She 
 
              also complained of a tightness in the back of her neck and 
 
              shoulders.  She was not having severe extremity.pain.  My 
 
              examination revealed no weakness, sensory loss or reflex 
 
              change.  Mrs. Rossow related that she had tried to return to 
 
              work but was able to work only two days and then the 
 
              activity caused too much pain for her to continue.
 
         
 
              I believe that Mrs. Rossow has suffered an additional 5-10o 
 
              injury to the body as a whole as a result of her second 
 
              injury.  I do not believe that she will be able to return to 
 
              her work at Iowa Power and Light.  I think, however, that it 
 
              is possible that she could be retrained for a lighter more 
 
              sedentary type of employment in the future.  If you have any 
 
              questions concerning this, please feel free to contact me.
 
         
 
              Claimant was also seen at the Pain Management Center at the 
 
         University of Nebraska Medical Center at University Hospital 
 
         Clinic.  According to Giuseppe Siracusano, R.P.T., claimant's 
 
         progress at the close of the program was as follows:
 
         
 
              Upon completion of the Pain Management Center's full 
 
              program, Sheron's overall flexibility has significantly 
 
              improved. Sheron's gait pattern has moderately improved.  
 
              Sheron's upper extremity strength has moderately improved.  
 
              The strength of the lower extremities has minimally 
 
              improved. Improvement in Sheron's endurance exercise 
 
              tolerance was limited by her cardiovascular status.  These 
 
              limitations do not exclude her from physical activities.  On 
 
              the practical side, Sheron's cardiovascular status 
 
              necessitates that she check her heart rate regularly and 
 
              alter the intensity of the activity accordingly.
 
         
 
              The counselor at the pain center, Linda McKee, determined 
 
         the following:
 
         
 
              COUNSELING:
 
         
 
              Sheron practiced relaxation techniques during her treatment 
 
              program.  She reponded [sic] best when using progressive 
 
              muscle techniques.
 
         
 
              Vocationally, Sheron plans to return to her position as a 
 
              meter reader at Iowa Power.  During her program, increases 
 
              in her muscle strength came very slowly.  She also 
 
              encountered increased heart rates at fairly low levels of 
 
              endurance exercises.  She is of the opinion that going back 
 
              to work on a part-time status and gradually working up to 
 
              full-time is not an option within her company.  Therefore, 
 
              she plans to return to her former position full-time.  In 
 
              view of the physical capacities she has reached at this 
 
              point, it will be imperative that Sheron pace herself 
 
              throughout the day if her return to work is to be 
 
              successful.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Charles Edward, M.D., a physician retained by defendant, 
 
         determined that as of January 6, 1988, claimant:
 
         
 
              Has been on non strenuous exercises  Has had improvement in 
 
              her head & neck pain but back pain remains the same.
 
         
 
              I do not feel she is capable to returning to work at this 
 
              time as a meter reader.
 
         
 
              Bernard L. Kratochvil, M.D., was retained by defendant to 
 
         examine and evaluate claimant.  He examined claimant on March 16, 
 
         1989 in anticipation of this proceeding.  Dr. Kratochvil opined 
 
         the following in his report of the same date:
 
         
 
              HISTORY:
 
         
 
              This woman was evaluated by me on the 2nd of April 1987.  
 
              She had fallen on some ice, while working, on the 17th of 
 
              December 1985.  After she was seen in April of 1987, she 
 
              apparently had another injury where she stepped in a hole, 
 
              in a yard, and reinjured her lower back.  At the time of my 
 
              examination on the 16th of March 1989, she had complaints of 
 
              neck and lower back pain.  The pain in the neck is located 
 
              in the posterior cervical area, to both sides of the 
 
              midline, and in the posterior shoulder area on both sides.  
 
              She has some tingling in her upper extremities.  She also 
 
              complains of lower back discomfort to both sides of the 
 
              midline, with an aching sensation in both lower extremities.  
 
              She is not working at this time.  She has been seen 
 
              previously by Dr. Daniel McKinney, a neurosurgeon, and has 
 
              had previous surgery by Dr. Schuyler Gooding, a 
 
              neurosurgeon.  She has had a myelogram performed by Dr. 
 
              McKinney, also.
 
         
 
              PHYSICAL EXAMINATION:
 
         
 
              This is a fifty-one year old woman, with the above 
 
              complaint. Examination of the neck reveals no muscle spasm 
 
              or structural deformity.  She complains of discomfort to 
 
              digital pressure in the paravertebral muscles of the neck 
 
              and posterior shoulder. She has full flexion and extension 
 
              of the neck, full right and left side bending and rotation 
 
              to the right and left.  Examination of the upper extremities 
 
              reveals no loss of strength or sensation, and no reflex 
 
              deficit.  There was no atrophy of the muscles of the upper 
 
              extremities.  There is full range of motion in the joints of 
 
              the upper extremities. Examination of the lower back reveals 
 
              tenderness to pressure in the lower lumbar area, to both 
 
              sides of the midline, but no muscle spasm or structural 
 
              deformity present.  The straight leg raising test is 
 
              negative bilaterally.  There was no loss of reflexes in the 
 
              lower extremities, and no sensory disturbance.  The strength 
 
              is good.  There is a well healed surgical scar in the lower 
 
              lumbar area.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              X-rays were not repeated.
 
         
 
              REMARKS:
 
         
 
              This woman continues to have complaints of discomfort in the 
 
              neck and lower back as the result of a fall which occurred 
 
              in 1985, and a second fall which occurred in 1987.  She has 
 
              had considerable orthopedic and neurosurgical evaluation, 
 
              along with attendance at a pain clinic.  It is my opinion 
 
              that she has a 5% impairment of the whole body as a result 
 
              of her injuries.  Her complaints are subjective and there 
 
              are very few objective findings except for the fact that she 
 
              has had previous surgery, and does have some minimal x-ray 
 
              findings....
 
         
 
              Dr. Kratochvil's evaluation is markedly disparate from 
 
         either the evaluation of Dr. McKinney or Dr. Gooding.  However, 
 
         Dr. Kratochvil was not a treating physician.  He was only 
 
         retained to evaluate claimant.  Dr. McKinney and Dr. Gooding were 
 
         treating physicians.  They had seen claimant on more than just 
 
         two occasions.  Greater weight is accorded their opinions.  See: 
 
         Reiland v. Palco, Inc., Thirty-Second Biennial Report of the 
 
         Industrial Commissioner 56 (1975); Dickey v. Continental Baking 
 
         Company, Thirty-Fourth Biennial Report of the Industrial 
 
         Commissioner 89 (1979).
 
         
 
              None of the three physicians determines whether any of the 
 
         functional.impairment is attributable to claimant's preexisting 
 
         condition.  This does not make it impossible to determine the 
 
         degree of functional impairment attributable to each work injury. 
 
         The undersigned finds that claimant is functionally impaired by 
 
         20 percent to the body as a whole as a result of the injury 
 
         sustained on December 17, 1985.  The undersigned finds the 
 
         claimant is functionally impaired by 10 percent as to the body as 
 
         a whole as a result of the work injury sustained on June 25, 
 
         1987.
 
         
 
              Claimant alleges she is permanently and totally disabled, or 
 
         that in the alternative, claimant alleges she is an odd-lot 
 
         employee under Guyton, supra.  Claimant maintains she is unable 
 
         to return to work as a meter reader due to her physical condition 
 
         and to the resulting pain which she is experiencing.  The record 
 
         indicates claimant returned to work for two and one half days 
 
         commencing on February 29, 1989.  Claimant indicated the pain was 
 
         so severe, she was forced to lie in her company vehicle on the 
 
         second day and that on the third day, claimant was unable to 
 
         complete the work shift because of her headache pain.  Claimant 
 
         reported she did not work after March 2, 1988.  From the facts 
 
         presented, it is apparent claimant can.no longer perform her 
 
         duties as a meter reader.
 
         
 
              Defendant argues claimant is quite capable of working. 
 
         Moreover, defendant maintains a light duty position has been 
 
         offered to claimant but she has refused a job as a rotating 
 
         service representative, even though claimant had held various 
 
         clerical positions throughout her 25 year work history.  
 
         Defendant further argues the position of sales representative is 
 
         a position which claimant's physicians, Dr. McKinney and Dr. 
 
         Gooding, opined was within the job restrictions placed upon 
 
         claimant so long as claimant was able to stand for one or two 
 
         minutes for every 30 minutes of work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Firstly, claimant states she is unable to handle the service 
 
         representative position because the job is too sedentary.  
 
         Claimant reports she cannot sit for long periods of time without 
 
         stiffness and pain.  Claimant also believes the job is too 
 
         stressful and she will have headaches if there is too much 
 
         stress.  Secondly, claimant states that initially she refused the 
 
         position because she thought the offer was a "sham."  However, 
 
         later through her attorney claimant reported she agreed to accept 
 
         the position on a trial basis.  In the interim, the job was taken 
 
         by another employee.  Claimant testified she was still waiting 
 
         for another position to be offered to her.
 
         
 
              In support of her position, claimant submits the report of 
 
         James T. Rogers, Certified Professional Counselor with Midlands 
 
         Rehabilitation Consultants.  He writes in his report of July 5, 
 
         1988:
 
         
 
              JOB ANALYSIS AND TRANSFERABLE JOB SKILLS:
 
         
 
              An inspection of Sheron's work background reveals that she 
 
              has worked as a meter reader, DOT Code #209.567.010; a 
 
              secretary, DOT Code #201.362.030; a bookkeeper, DOT Code 
 
              #210.382.014; a switchboard operator, DOT Code #235.462.010 
 
              and a laborer, power house, DOT Code #952.665.010.
 
         
 
              According to the Dictionary of Occupational Titles secretary 
 
              and bookkeeper are listed as sedentary work; meter reader 
 
              and switchboard operator as light work and power house 
 
              laborer as heavy work.  According to Sheron's doctors, she 
 
              is in need of sedentary employment, employment which does 
 
              not require long periods of standing and allows her to 
 
              alternate sitting and standing.  As such, she definitely is 
 
              excluded from returning to work as a power house laborer or 
 
              meter reader as well as the usual job of switchboard 
 
              operator.  Considering the above listed restrictions, the 
 
              jobs of secretary and bookkeeper would be appropriate only 
 
              on a selected basis.  It should be noted that Sheron 
 
              complains of neck and right upper extremity pain, (less than 
 
              back and leg pain) and that, according to Dr. McKinney, 
 
              myelogram did show a "disc type defect" in the cervical 
 
              region.  It has been my experience that cervical disc 
 
              problems may interfere with one's ability to type, 
 
              particularly for extended periods of time, due to neck, 
 
              shoulder and upper extremity pain.  While no doctor has 
 
              specifically restricted her in this regard, I would view it 
 
              as good rehabilitation practice to at least be on the alert 
 
              to a potential problem in this area.  Further, Sheron 
 
              complains of problems with headaches and states that 
 
              physical activity and "tenseness" bring on these headaches.  
 
              They are described as excruciating and may last for several 
 
              days. Sheron feels the tenseness associated with typing may 
 
              bring on these headaches.
 
         
 
              According to Sheron's education and work background, she 
 
              should have the following skills and abilities, some of 
 
              which are transferable to other jobs.  They include applying 
 
              basic math skills and visual abilities to maintain records, 
 
              conduct inventories and estimate quantities; recording 
 
              figures in ledges or operating calculators or similar 
 
              machines; concentrating on details; making change; using a 
 
              cash register; dealing tactfully and courteously with the 
 
              public; and adapting to routine work.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is apparent that Sheron does have transferable skills 
 
              into the sedentary work category, particularly in the Worker 
 
              Trait Groups (WTG) of mathematical detail, WTG #07.02; 
 
              financial detail, WTG #07.03; and oral communications, WTG 
 
              #07.04. Numerous sedentary jobs can be found in the above 
 
              listed categories.  Examples include claims clerk, 
 
              correspondence clerk, order clerk, cashier, ticket seller, 
 
              bookkeeper, night auditor, secretary, etc.  Even though 
 
              these jobs are sedentary, Sheron is in need of a special 
 
              job, one which allows her to sit and stand.  Ideally she 
 
              should have a job that allows her to work at her own pace.  
 
              She will need an understanding employer and probably 
 
              understanding coworkers as well.  Our experience suggests 
 
              that such jobs are difficult, though not impossible, to 
 
              obtain.  Sheron faces the additional employment difficulties 
 
              of being 50 years old, having no specialized post high 
 
              school training, and having a bad neck and bad back 
 
              requiring 2 surgical procedures. Sheron is likely to 
 
              encounter particular difficulties in finding employment with 
 
              primary employers--that is the employers who pay the highest 
 
              wages and can be most selective.
 
         
 
              DISCUSSION:
 
         
 
              Sheron Rossow is a lady who is obviously severely disabled. 
 
              Certainly she is unable to return to some of her past jobs 
 
              such as meter reader or laborer.  She does have some 
 
              transferable skills in the general area of office work, 
 
              secretarial, typing and bookkeeping.  These skills are not 
 
              up-to-date and her employability in the office area would be 
 
              improved with some additional short term training such as 
 
              word processing training as offered at the Computer Class 
 
              Room.
 
         
 
              Even with additional training, I am unsure whether or not 
 
              Sheron is going to be able to obtain and maintain 
 
              employment. She is going to need a special job with an 
 
              understanding employer.  These jobs are available but not 
 
              easy to get.  As Dr. McKinney pointed out her ability to 
 
              hold a job depends upon "her comfort level."  There is a 
 
              question whether or not she will be able to hold any job 
 
              considering her back and leg pain, neck and shoulder pain 
 
              and headaches.
 
         
 
              Since Sheron states that she definitely prefers to work if 
 
              at all possible, and that, in fact, she feels better 
 
              psychologically when working, I feel the most reasonable 
 
              rehabilitation approach in her case would be to provide her 
 
              with vocational rehabilitation services directed toward 
 
              competitive employment.  I would list the general vocational 
 
              goal as secretarial which would fall in the salary range of 
 
              $4.00 to $6.00 per hour, probably more toward the higher end 
 
              of that scale considering Sheron's experience.  In addition 
 
              to guidance, counseling and job placement services, Sheron 
 
              may benefit from work hardening, work adjustment training 
 
              and possibly short term training to bring Sheron's office 
 
              skills up to date.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              The fact is that no one knows if Sheron can obtain or hold a 
 
              job, and the simple truth is that the only way we will know 
 
              is to put her to work or put her into a simulated Work 
 
              situation.  Since she reports the motivation to do so, I 
 
              think it only fair to give her a try.
 
         
 
              If competitive employment does not workout for Sheron, she 
 
              would likely be a candidate for homebound employment.  It 
 
              has been my experience homebound employment ordinarily does 
 
              not provide incomes which one would consider competitive.  
 
              In general, this type of "employment" falls into the hobby 
 
              business category.  Such training can be obtained through 
 
              the state of Iowa's Department of Rehabilitation at Camp 
 
              Sunnyside in Des Moines.
 
         
 
              The undersigned finds claimant is not permanently and 
 
         totally disabled, nor is claimant an odd-lot employee under 
 
         Guyton. Claimant is physically incapable of handling the duties 
 
         of a meter reader.  While defendant has not been offered a light 
 
         duty position within the physical unit, defendant has offered a 
 
         position within the clerical unit which meets the medical 
 
         restrictions placed upon claimant.  Ms. Lewis has indicated the 
 
         job involves moving around the room.  Defendant has also agreed 
 
         to allow claimant a two minute "stretching" break for every 30 
 
         minutes of work.  This too is in keeping with medical 
 
         recommendations.  The job is in line with claimant's transferable 
 
         job skills.  From the facts presented, it appears this is the 
 
         "special job" with "the understanding employer", which is 
 
         discussed in Mr. Rogers' report.  Claimant is not an odd-lot 
 
         employee under Guyton.
 
         
 
              However, claimant has established she has an industrial 
 
         disability.  Claimant's physical impairment is, of course, only 
 
         one factor in determining the extent of industrial disability. 
 
         Claimant is 51 years old.  While her age may be working against 
 
         her, claimant has a high school education.  She has transferable 
 
         job skills from previous positions in the secretarial and 
 
         bookkeeping fields.
 
         
 
              Another factor to consider in determining the extent of 
 
         claimant's industrial disability is a loss of earnings.  As a 
 
         meter reader, claimant, in 1987, was earning $11.825 per hour.  
 
         It is acknowledged that clerical positions pay substantially less 
 
         per hour for entry level positions.  Mr. Rogers has determined an 
 
         appropriate salary range for clerical positions is in the $4.00 
 
         to $6.00 per hour range.  Even the service representative 
 
         position, which has been previously offered to claimant pays 
 
         considerably less than the meter reader position.  In April of 
 
         1988, the service representative position did pay $7.88 per hour.  
 
         The hourly rate differs sizeably.
 
         
 
              A separate factor to consider is a loss of earning capacity. 
 
         This is to be distinguished from a loss of earnings.  See Rauch 
 
         v. O'Bryan Brothers, Inc., File No. 828457 (Appeal Decision 
 
         December 30, 1988).  Claimant's impairments and her surgery have 
 
         clearly affected her ability to be hired for jobs that require 
 
         use of her back, or entail strenuous walking.  Claimant is unable 
 
         to hold positions such as meter reading.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Even if claimant would have accepted the position as a 
 
         service representative, there still would have been a loss of 
 
         earning capacity within the corporate structure.  Claimant would 
 
         have started as a new employee within the unit.  Claimant's 
 
         earning capacity would definitely be affected by her injury.
 
         
 
              Based upon the foregoing and based upon:  1) the personal 
 
         observation of claimant; 2) agency expertise, (Iowa 
 
         Administrative Procedures Act 17A.14(s); and, 3) claimant's 
 
         testimony, the undersigned finds the claimant has a 10 percent 
 
         industrial disability as a result of the injury on December 17, 
 
         1985 and that she has a 20 percent industrial disability as a 
 
         result of her injury on June 25, 1987.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              FINDING 1.  Claimant sustained a back injury arising out of 
 
         and in the course of her employment on December 17, 1985.
 
         
 
              FINDING 2.  Claimant sustained a back injury arising out of 
 
         and in the course of her employment on June 25, 1987.
 
         
 
              FINDING 3.  Claimant had a prior history of back problems 
 
         including a laminectomy from a fall from a horse.
 
         
 
              FINDING 4.  As a result of the injury on December 17, 1985, 
 
         claimant has an attributable functional impairment of 20 percent 
 
         of the body as a whole.
 
         
 
              FINDING 5.  As a result of the injury on June 25, 1987, 
 
         claimant has an attributable functional impairment of 10 percent 
 
         of the body as a whole.
 
         
 
              CONCLUSION A.  Claimant has met her burden of proving she 
 
         has a 10 percent permanent partial disability as a result of her 
 
         injury on December 17, 1985.
 
         
 
              CONCLUSION B.  Claimant has met her burden of proving she 
 
         has a 20 percent permanent partial disability as a result of her 
 
         injury on June 25, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant fifty (50) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred eighty-five and 46/100 dollars ($285.46) per week as a 
 
         result of the injury on December 17, 1985.
 
         
 
              Defendant is to pay unto claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         eighty-seven and 35/100 dollars ($287.35) per week as a result of 
 
         the injury on June 25, 1987.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant is to be given credit for all benefits previously 
 
         paid to claimant.
 
         
 
              Costs of this action is assessed against the defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
              Signed and filed this 9th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave.
 
         P. 0. Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Brian L. Campbell
 
         Attorney at Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            4100
 
                                            Filed May 9, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERON ROSSOW,
 
         
 
              Claimant,
 
                                            File Nos. 865887 & 812650
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         IOWA POWER & LIGHT COMPANY,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         4100
 
         
 
              Claimant sustained two back injuries on the job when she was 
 
         working as a meter maid.  Claimant was medically restricted from 
 
         returning to that position.  Defendant offered claimant a 
 
         position as a clerical worker.  Claimant refused the position 
 
         even though she had had 25 years of experience in the field, and 
 
         the job was in keeping with claimant's medical restrictions.  It 
 
         was held that claimant was not an odd-lot employee under Guyton.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
           
 
 
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD GENE JACKSON,
 
         
 
              Claimant,                             File No. 865892
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         KAST KEOKUK STEEL CASTINGS CO.,            D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      AUG 7 1989
 
         BITUMINOUS INSURANCE COMPANIES,
 
                                                INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              The above entitled cause was scheduled for hearing on July 
 
         13, 1989, at 8:00 a.m. at the Des Moines County Courthouse in 
 
         Burlington, Iowa.  Claimant's counsel appeared, but the claimant 
 
         himself did not appear.  Counsel for the claimant had exercised a 
 
         great deal of diligence in attempting to procure the claimant's 
 
         attendance, but had been unsuccessful.  It was ascertained that 
 
         the claimant was not present in the courthouse.
 
         
 
              Counsel for claimant requested that the case be dismissed 
 
         without prejudice while counsel for the employer and its 
 
         insurance carrier requested either that the case be dismissed 
 
         with prejudice or that a decision be entered on the merits of the 
 
         case.
 
         
 
              Counsel for claimant stated that it would not be possible to 
 
         prevail in the case without the testimony of the claimant and 
 
         declined to submit any evidence.
 
         
 
                                   ANALYSIS
 
         
 
              Under Iowa Rule of Civil Procedure 215, a party may dismiss 
 
         that party's own petition at any time before trial has begun.  In 
 
         this case, the claimant did not appear for the trial at the 
 
         appointed time.  The claimant had not notified or communicated 
 
         with his counsel as to the fact that he would not be appearing. 
 
         Counsel for the defendants had appeared and was ready to proceed 
 
         with the trial of the case.  Accordingly, it is determined that 
 
         claimant should not be allowed to dismiss the case without 
 
         prejudice.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
                                                
 
                                                         
 
         evidence that he received an injury on February 2, 1988 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154. N.W.2d 128 (1967).
 
         
 
              Claimant failed to introduce any.evidence whatsoever.  It is 
 
         therefore apparent that he has failed to meet the burden of proof 
 
         which the law places upon him.
 
         
 
                                   FINDING OF FACT
 
         
 
              1.  Claimant has failed to introduce evidence which shows it 
 
         to be probable that he sustained any injury on February 2, 1988. 
 
         
 
         
 
                                   CONCLUSION OF LAW
 
         
 
              1.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that he sustained an injury which arose out of and in 
 
         the course of his employment on February 2, 1988.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 7th day of August, 1989.
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.20, 51402.30
 
                                            Filed August 7, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GERALD GENE JACKSON,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 865892
 
         
 
         KAST KEOKUK STEEL CASTINGS CO.            A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         BITUMINOUS INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.20, 51402.30
 
         
 
              Claimant failed to appear for hearing.  His claim was 
 
         therefore denied.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
             
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        REX BELL,
 
        
 
            Claimant,                                 File No. 865895
 
        
 
        vs.                                            A R B I T R A T I 
 
        O N
 
        
 
        JOHN DEERE WATERLOO WORKS,                     D E C I S I O N
 
        
 
             Employer,
 
             Self-Insured,                         F I L E D
 
             Defendant.
 
                                                  DEC 18 1989
 
             
 
                                              INDUSTRIAL SERVICES
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Rex Bell 
 
             against his self-insured employer, John Deere Waterloo Works. 
 
             The case was heard and fully submitted at Waterloo, Iowa on April 
 
             20, 1989. The record in the proceeding consists of testimony 
 
             from Rex Bell and Robert Demuth. The record also contains 
 
             jointly offered exhibits A through J.
 
        
 
                                      ISSUES
 
        
 
             Claimant seeks compensation for injuries that he sustained 
 
             when he was involved in an altercation with a coemployee, Loren 
 
             Scott, on March 10, 1988. The parties stipulated to all 
 
             applicable issues, including healing period and permanent partial 
 
             disability entitlement, except for the issues of whether the 
 
             injury arose out of and in the course of employment and whether 
 
             the injury was barred by the provisions of Iowa Code sections 
 
             85.16(1) or (3). A further issue exists with regard to which 
 
             party carries the burden of proof regarding whether the injury 
 
             arose out of and in the course of employment or that the claim is 
 
             barred by the provisions of Iowa Code section 85.16.
 
        
 
                                 SUMMARY OF EVIDENCE
 
        
 
             The following is a summary of evidence presented in this 
 
             case. Only the evidence most pertinent to this decision is 
 
             discussed, but all of the evidence received at the hearing was 
 
             considered in arriving at this decision. Conclusions about what 
 
             the evidence showed are inevitable with any summarization. The 
 
             conclusions in the following summary should be considered to be 
 
             preliminary findings of fact.
 
             
 
             There is little actual dispute in the record with regard to 
 
             the material facts of this case. Claimant injured his knee on 
 
             March 10, 1988 while involved in an altercation with Loren Scott, 
 
             another John Deere ,employee. The altercation occurred on the 
 
             employer's premises at a place where it was reasonable,for 
 
             claimant to be in view of his work duties. Claimant testified 
 
             that Scott attacked him and that claimant acted only in 
 
             self-defense. The employer instituted disciplinary action 
 

 
        
 
 
 
 
 
             against both claimant and Scott. Both employees were discharged, 
 
             but subsequently reinstated. The information provided by 
 
             claimant at his disciplinary hearing was generally consistent 
 
             with the information which he provided through his testimony at 
 
             this hearing (exhibit B). The information provided by Scott at 
 
             his disciplinary hearing was to the effect that claimant had 
 
             insulted him and initiated the altercation (exhibit D). The 
 
             record reflects that the parties had a previous altercation on 
 
             the employer's premises, which altercation occurred on June 10, 
 
             1986. Disciplinary action was taken against both employees 
 
             following that incident. The disciplinary reports indicate that 
 
             each employee blamed the other for starting the altercation 
 
             (exhibits A and C). None of the reports from the disciplinary 
 
             hearings provide any information regarding the source or nature 
 
             of the animosity between claimant and Scott. Scott did not 
 
             appear and testify at this hearing.
 
        
 
             Claimant testified that he first met Scott in 1972 when they 
 
             both had entered the electrician apprentice program. Claimant 
 
             stated that he and Scott were both participants in the program 
 
             which claimant described as containing four years of 
 
             correspondence course study. Claimant stated that he and Scott 
 
             worked together on the correspondence courses and studied 
 
             together during the four-year course. Claimant stated that he was 
 
             not aware of any animosity between them while the course was 
 
             ongoing.,
 
             
 
             Claimant testified that when the term of the course had 
 
             ended, he was promoted into a job as an electrician, but that 
 
             the company felt Scott had not successfully completed the course 
 
             and Scott was returned to the foundry. Claimant stated that 
 
             Scott eventually was also made an electrician after an appeal 
 
             was taken.
 
        
 
            Claimant testified that he is not aware of the source of the 
 
        animosity which Scott apparently feels for him. He stated that 
 
        on one occasion in 1981 or 1982, he and Scott had an altercation 
 
        away from the employer's plant which was started by Scott. 
 
        Claimant stated that he generally avoids Scott, both within and 
 
        outside of the plant . Claimant stated that he has not actually 
 
        worked with Scott in the plant and has not maintained any 
 
        personal relationship with Scott inside or outside the plant 
 
        since the apprenticeship program ended.
 
        
 
             Claimant testified that he is not aware of the reason for 
 
             Scott's animosity. There is no other evidence in the record of 
 
             this case which provides any insight into the reason or basis for 
 
             the altercations which have occurred or of the animosity which 
 
             clearly exists between Bell and Scott.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on March 10, 1988 which arose 
 
             out of and in the course of his employment. McDowell v. Town of 
 
             Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
             Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             The injury must both arise out of and be in the course of 
 
             the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
             402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
             Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
             255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
             249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The words "in the course of" refer to the time and place and 
 

 
        
 
 
 
 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
        246 Iowa 402, 68 N.W.2d 63 (1955).
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Sheerin v. Holin Co.,,380 N.W.2d 415 (Iowa 
 
        1986); Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 
 
        (Iowa 1979); McClure v. Union et al. Counties, 188 N.W.2d 283 
 
        (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
        154 N.W.2d 128 (1967).
 
        
 
            The "arising out of" requirement is met by showing a causal 
 
        relationship between the injury and the employment. Sheerin v. 
 
        Holin Co., 380 N.W.2d 415 (Iowa 1986); Cedar Rapids Comm. Sch. 
 
        Dist. v. Cady, 278 N.W.2d~298 (Iowa 1979).
 
        
 
               In this case, claimant testified in person at hearing. His 
 
             evidence is uncontroverted, except for what appears in the 
 
             reports regarding Loren Scott's disciplinary hearings. Claimant 
 
             testified that Scott was the aggressor. Claimant's appearance 
 
             and demeanor were observed while he testified at the hearing 
 
             before the,undersigned. No witness who testified at the hearing 
 
             controverted claimant's testimony in any manner with regard to 
 
             who was the aggressor. Claimant is determined by the undersigned 
 
             to be a credible witness. It is therefore determined that the 
 
             claimant has proven, by a preponderance of the evidence, that the 
 
             injury to his knee occurred in the manner which he described at 
 
             hearing. In particular, the claimant proved that he was not the 
 
             aggressor and that the injury did not occur as a result of 
 
             claimant's willful intent to injure either himself or to injure 
 
             Loren Scott. From the evidence presented, claimant clearly 
 
             prevails with regard to Iowa Code section 85.16(1) regardless of 
 
             which party is assigned the burden of proof. It is recognized 
 
             that it has been held that the Iowa Supreme Court has ruled that 
 
             the burden of proving the bar to recovery which is provided by 
 
             Code section 85.16(2) rests on the defendant. Reddick v. Grand 
 
             Union Tea Co., 230 Iowa 108, 115, 296 N.W. 800, 803 (1941).
 
        
 
             The parties have both ably briefed the law regarding 
 
             injuries which result from third party actions. The decision in 
 
             this case turns upon which party must carry the burden of proof. 
 
             The record in this case does not contain any clear showing of the 
 
             reasons for the attack which Scott made against claimant or for 
 
             the animosity which apparently exists between them. In view of 
 
             the fact that their contact with each other has been almost 
 
             exclusively within the employer's plant, that fact alone provides 
 
             evidence that the reason for the animosity has something to do 
 
             with the employment. The undersigned would expect that Scott 
 
             would have developed animosity toward claimant in 1976 when the 
 
             electrician apprentice course was completed and claimant was 
 
             promoted but Scott was not. It is certainly conceivable that 
 
             Scott may have somehow blamed claimant for being sent to the 
 
             foundry when claimant was immediately assigned a position as an 
 
             electrician. Perhaps Scott felt that claimant had in some manner 
 
             betrayed him. The evidence of an employment connection with the 
 
             animosity is minimal. It is greater, however, than the evidence 
 
             of any source of animosity which did not arise from the 
 
             employment setting. The record is totally devoid of any 
 
             nonemployment source of animosity. The factual issue is 
 
             sufficiently close, however, that the legal issue regarding which 
 
             party has the burden of proof must be addressed.
 
             
 
             It is determined that the claimant has the initial burden of 
 
             making a prima facie showing that the injury arose out of the 
 

 
        
 
 
 
 
 
             employment. Attacks made by coemployees are considered to arise 
 
             out of the employment. Cedar Rapids Community Sch. v. Cady, 278 
 
             N.W.2d 298 (Iowa 1979). If the workplace places an employee in 
 
             close proximity to a mentally deranged coemployee, the resulting 
 
             injury is compensable. Likewise, if the workplace creates 
 
             animosity between employees, such as that arising from 
 
             competition for promotions or favorable work assignments, any 
 
             resulting injury is compensable.
 
        
 
            In this case the only substantial contact between Bell and 
 
        Scott shown in the record is that which resulted from the 
 
        employment. Claimant has therefore made the required prima facie 
 
        showing. In order to make the required prima facie showing, it 
 
        is not necessary for the claimant to disprove any of the section 
 
        85.16 defenses.
 
        
 
            The general rule with regard to burden of proof is that the 
 
        burden of proving an entitlement to anything rests on the 
 
        proponent. Norland v. Iowa Dep't of Job Serv., 412 N.W.2d 409, 
 
        410 (Iowa 1987); Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 
 
        1973). The defenses provided by Code section 85.16 are generally 
 
        considered to be affirmative defenses where the burden of 
 
        pleading and proof is placed on the defendant. Lawyer and Higgs, 
 
        Iowa Workers' Compensation -- Law and Practice, section 7-4. The 
 
        industrial commissioner recently confirmed the agency precedent 
 
        which places the burden on the employer. Schaapveld v. 
 
        University of Iowa, file number 814525 (App. Decn. August 15, 
 
        1989).
 
        
 
            It is therefore determined that, once the claimant makes a 
 
        prima facie showing that the injury arose out of the employment, 
 
        the burden of proving facts which would bar recovery under 
 
        section 85.16 rests on the employer. Where the evidence fails to 
 
        demonstrate, by a preponderance of the evidence, that one or more 
 
        of the three defenses provided by Code section 85.16 are 
 
        applicable, the claimant recovers. Since the employer has failed 
 
        to prove that Scott's attack was motivated by a reason personal 
 
        to claimant, rather than due to an animosity which has its source 
 
        in the employment, claimant is entitled to recover the benefits 
 
        which the parties stipulated would be payable in the event of 
 
        liability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
            1. Rex Bell injured his right knee on March 10, 1989 when 
 
        he was attacked by Loren Scott, a fellow employee, at the John 
 
        Deere plant.
 
        
 
            2. At the time of the attack, Bell was performing 
 
        activities which were consistent with and part of the duties of 
 
        his employment.
 
             
 
             3. Bell did not institute the altercation. To the 
 
             contrary, the altercation commenced with an attack by Scott.
 
             
 
             4. The evidence in the case shows it to be possible that the 
 
             reason for the attack, and the underlying animosity between Bell 
 
             and Scott, resulted from their association with each other as 
 
             coemployees of the John Deere Waterloo Works. The record 
 
             presented provides no basis, beyond mere speculation, that the 
 
             animosity between claimant and Scott arose from any source other 
 
             than their employment.
 
             
 
             5. The precise source of the animosity between claimant and 
 
             Scott cannot be determined with certainty from the evidence which 
 
             was introduced.
 

 
        
 
 
 
 
 
             
 
                                 CONCLUSIONS OF LAW
 
             
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
             
 
             2. Rex Bell sustained an injury to his right knee which 
 
             arose out of and in the course of his employment with John Deere 
 
             Waterloo Works on March 10, 1988.
 
             
 
             3. The employer has failed to prove by a preponderance of 
 
             the evidence that the injury was either the result of claimant's 
 
             willful intent to injure himself or to injury another.
 
             
 
             4. The employer has failed to prove by a preponderance of 
 
             the evidence that the injury was the result of a willful act of a 
 
             third party directed against claimant for reasons personal to 
 
             claimant.
 
             
 
             5. Claimant is therefore entitled to recover the benefits 
 
             which were stipulated by the parties.
 
             
 
                                      ORDER
 
             
 
             IT IS THEREFORE ORDERED that the employer pay claimant 
 
             twelve and three-sevenths (12 3/7) weeks of compensation for 
 
             healing period at the stipulated rate of four hundred thirty-two 
 
             and 76/100 dollars ($432.76) per week payable commencing March 
 
             11, 1988.
 
             
 
             IT IS FURTHER ORDERED that the employer pay claimant 
 
             twenty-two (22) weeks of compensation for a ten percent (10%) 
 
             permanent partial disability of the right leg under the 
 
             provisions of Iowa Code section 85.34(2)(o) payable commencing 
 
             June 6, 1988.
 
        
 
             IT IS FURTHER ORDERED that the entire amount thereof is past 
 
             due and shall be paid to claimant in a lump sum together with 
 
             interest computed from the date each payment came due until the 
 
             date of actual,payment at the rate of ten percent (10%) per annum 
 
             pursuant to Iowa Code section 85.30.
 
        
 
            IT IS FURTHER ORDERED that the costs of this proceeding are 
 
        assessed against the employer pursuant to Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
            IT IS FURTHER ORDERED that the employer file claim activity 
 
        reports as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
            Signed and filed this 18th day of December, 1989.
 
        
 
        
 
        
 
        
 
                                     MICHAEL G. TRIER
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Robert D. Fulton
 
        Attorney at Law
 
        6th Floor, 1st National Building
 
        P.O. Box 2634
 
        Waterloo, Iowa 50704
 
        
 

 
        
 
 
 
 
 
        Mr. John W. Rathert
 
        Attorney at Law
 
        620 Lafayette Street
 
        P.O. Box 178
 
        Waterloo, Iowa 50704
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                                          1402.30, 1403.30, 1602
 
                                          1603
 
                                          Filed December 18, 1989
 
                                          MICHAEL G. TRIER
 
        
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        REX BELL,
 
        
 
            Claimant,                                 File No. 865895
 
        
 
        vs.                                            A R B I T R A T I 
 
        O N
 
        
 
        JOHN DEERE WATERLOO WORKS,                     D E C I S I O N
 
        
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
             
 
             
 
        1402.30. 1403.30, 1602, 1603
 
        
 
             Claimant was injured in an altercation which occurred at 
 
             work with a coemployee. From the record which was made, it was 
 
             possible, though not clear, that a longstanding animosity between 
 
             the two individuals had its origin in the employment. No direct 
 
             evidence was introduced in the case which provided any source for 
 
             the animosity. It was held that the claimant has the initial 
 
             burden of making a prima facie showing that the injury arose out 
 
             of the employment by evidence which in some manner connects the 
 
             attack with the employment. Once the prima facie showing is 
 
             made, the burden of proof of any defense available under Code 
 
             section 85.16 lies with the employer. It is not necessary for 
 
             the claimant to disprove any of those possible defenses in order 
 
             to make the initial prima facie showing that the injury arose out 
 
             of the employment.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
                                               5-3000; 5-1802
 
                                               Filed October 29, 1992
 
                                               Byron K. Orton
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            DARRELL FOREMAN,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 865901
 
            FOREMAN ELECTRIC & HARDWARE,    
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            HERITAGE INSURANCE,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-3000
 
            Found claimant's rate based on his draw from his family 
 
            owned, closely held corporation to be $150.  This $150 draw 
 
            which equalled $7,800 per year was, in fact, what he 
 
            reported as his income as employee of his corporation, on 
 
            his and his wife's personal tax and corporate tax returns 
 
            and payroll returns.  It was this same amount on which he 
 
            figured his FICA and withholding.
 
            At his hearing, claimant contends he was worth $35,200 to 
 
            his corporation based on his time and expertise contribution 
 
            and that 61% of the rent and other expenses should be 
 
            considered for the workers' compensation rate, i.e., $676.92 
 
            gross vs. $150 gross.  The parties stipulated claimant had a 
 
            60% industrial disability.
 
            
 
            5-1802
 
            Found claimant's healing period was 66.857 weeks and not 104 
 
            weeks.  Healing period ended when claimant returned to work.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARRELL FOREMAN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 865901
 
            FOREMAN ELECTRIC & HARDWARE,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HERITAGE INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on September 26, 1991, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an injury occurring on 
 
            October 5, 1987.  The record in the proceeding consists of 
 
            the testimony of the claimant; claimant's wife, Nancy 
 
            Foreman; and John Booth; and joint exhibits 1 through 15; 
 
            and pages 16, 17, 18, 19, 47, 48 and 49 of joint exhibit 16.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's healing period;
 
            
 
                 2.  The rate at which healing period benefits are to be 
 
            paid; and
 
            
 
                 3.  The commencement date of the payment of permanent 
 
            partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 49 year old.  He related his education and 
 
            work experience prior to starting his and his wife's own 
 
            business approximately 23 years ago.  Claimant and his wife 
 
            incorporated this electrical heating, plumbing and hardware 
 
            business in 1981, pursuant to their accountant's advice, 
 
            mainly at the time, due to better tax treatment of insurance 
 
            funds to be received as a result of a fire damaging their 
 
            business.
 
            
 
                 Other than for the incorporation, the claimant and his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            wife ran this business basically the same as they did before 
 
            the incorporation except for a need to prepare different or 
 
            additional documents and tax returns and record keeping.
 
            
 
                 Claimant and his wife are now as they were at the time 
 
            of claimant's October 5, 1987 injury, the sole stockholders, 
 
            officers and directors of this corporation and are two of 
 
            approximately three or four employees.
 
            
 
                 The evidence is undisputed that defendant corporation 
 
            ran the corporation as a corporation and the federal and 
 
            state corporate tax returns, payroll tax returns and the 
 
            parties' personal tax returns that were prepared at the 
 
            required times reflect the true, accurate status of the 
 
            personal and the corporation's financial situation as to 
 
            income expenses, deductions, salaries, rents, etc.
 
            
 
                 Claimant, his wife, and their accountant also testified 
 
            there are no anticipated amendments and that the returns to 
 
            this day are correct and that no changes should or are to be 
 
            made.
 
            
 
                 It is undisputed that claimant drew $150 per week from 
 
            the corporation in fiscal year ending August 1986 and fiscal 
 
            year ending August 1987, and at the time of his injury on 
 
            October 5, 1987.  There was considerable testimony of 
 
            claimant and a vocational consultant indicating the nature 
 
            of claimant's work and time spent doing certain types of 
 
            work as an electrician, plumber, administrator, etc. As a 
 
            conclusion of this testimony, claimant believes his services 
 
            to defendant corporation and money generated in wages was at 
 
            least $23,000 to $37,000.  Claimant, through joint exhibits 
 
            1 and 2, in fact, believes his income as of October 5, 1987, 
 
            was $35,200 per year.  Claimant's vocational rehabilitation 
 
            expert indicated that with claimant's 23 years of expertise 
 
            and his supervisory ability, he would be making $37,000 per 
 
            year, at least, if he was working for another as an electri
 
            cian, plumber, heating and air conditioning, expert and 
 
            doing supervisory and administrative work.
 
            
 
                 Joint exhibits 8 through 12 reflects claimant's 
 
            personal and the corporation's tax returns and W2's for the 
 
            years 1986 and 1987.  Although they reflect the income and 
 
            expense picture of claimant and his wife and defendant 
 
            corporation, as per the testimony of claimant, his wife and 
 
            their accountant, claimant contends that his income should 
 
            be based on a 61 percent participation in the gross income 
 
            and that $150 per week should not be used for workers' 
 
            compensation purposes but that a gross weekly figure of 
 
            approximately $676.92 should be used in arriving at a rate.
 
            
 
                 It is undisputed that claimant and his witnesses 
 
            testified that claimant's salary on the tax return for 1986 
 
            was $7,800 (Jt. Ex. 10, p. 2), and the ordinary and required 
 
            FICA and withholding taxes were taken out accordingly.  
 
            Claimant testified he was paid $150 per week in 1987 until 
 
            his injury.  He also testified that upon his return to work 
 
            on or around January 15, 1989, he was continuing to draw 
 
            $150 per week until sometime apparently in 1991.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant contends part of the rent as well as part of 
 
            other expenses should be income notwithstanding the fact 
 
            that it was paid as rent or as other deductions by the 
 
            corporation and no FICA or withholding taxes were paid on 
 
            any of these expense amounts.
 
            
 
                 Claimant acknowledges that the payment of rent by 
 
            defendant corporation which was paid to claimant and his 
 
            wife was directly then paid by them on their personal loan 
 
            to the bank.  This loan was incurred when claimant and his 
 
            wife built the building in which defendant corporation is 
 
            doing business and paying rent.  Claimant further 
 
            acknowledges that if the rent or these other corporate 
 
            deductions were income at the time, then FICA and tax 
 
            withholding should have been paid or deducted which would 
 
            result in a reduction in the amount for which they would 
 
            have to timely pay their mortgage payments.  It is obvious 
 
            the claimant and his wife now take the position that some of 
 
            their rent is his income thereby indicating that the 
 
            corporation would not then be paying rent.  It is obvious 
 
            that in this scenario, the internal revenue service would 
 
            not allow claimant to take advantage of certain deductions 
 
            or expenses nor would it consider the corporation renting 
 
            free a building in order to get some other tax advantages 
 
            for its own family owned corporation.  The internal revenue 
 
            service would set a reasonable amount that it would consider 
 
            defendant corporation pay to a landlord as rent.  The 
 
            claimant's wife did not indicate that the money paid to her 
 
            which she applied on the personal loan was now considered 
 
            income to her.
 
            
 
                 Claimant's testimony reflects his contention that he is 
 
            worth more than $150 per week to defendant corporation.  He 
 
            contends that if he were an electrician and a plumber 
 
            working for someone else, he would be making substantially 
 
            more money.
 
            
 
                 Although claimant's expertise working for some other 
 
            person or corporation full time may result in more personal 
 
            income, the fact is claimant chose his way and style of 
 
            doing business.  With it comes many advantages which one 
 
            cannot apply a direct or exact monetary value.  Claimant and 
 
            his wife are sole owners of the corporation so they are 
 
            their own boss.  They can do what they please, take off many 
 
            tax deductions they could not otherwise take if they were 
 
            working for another, or if they had some other arrangement 
 
            within their corporate and personal affairs.  They do not 
 
            even have a written lease.  The undersigned listened with 
 
            interest the explanation of some of the expenses and 
 
            deductions that defendant corporation took which benefited 
 
            the claimant and his wife which might catch the observing 
 
            eye of a government tax auditor.  The accountant obviously 
 
            emphasized he took the figures that claimant and/or his wife 
 
            gave him.  It is apparent and undisputed that the claimant 
 
            took advantage of the tax laws when he incorporated.  He did 
 
            not incorporate under S Chapter provisions, at least through 
 
            his testimony, though there is other evidence he did.  That 
 
            is immaterial to the issue herein.  It is apparent to the 
 
            undersigned that defendant corporation is providing an 
 
            existence to claimant and his wife and a place to work and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            help in paying off their personal loan, so eventually, the 
 
            building will be owned by claimant and his wife free and 
 
            clear.  In this financial setup, the business could not pay 
 
            the claimant $23,000 to $37,000 a year and pay the necessary 
 
            corporate expenses.  It is apparent to the undersigned that 
 
            this is not a corporation that is able to provide claimant 
 
            with the tax advantages and deductions and a substantial 
 
            income on top of it.  The corporation paid no dividends.  
 
            
 
                 Claimant has gone to a great extent (Jt. Exs. 1 through 
 
            5) to convince the undersigned that claimant was making 
 
            $35,200 per year and it is upon this gross one should figure 
 
            the rate.  This figuring would not comply with the IRS 
 
            standards, and claimant and his accountant has no intent to 
 
            amend their tax return.  Claimant made his nest and he must 
 
            now lie in it.  Hindsight is always better than foresight.  
 
            Claimant now wants his cake and eat it both.  It would be 
 
            interesting to see claimant and defendant corporation defend 
 
            itself from the IRS and what position it would take if this 
 
            transcript was made available to the IRS.  Hindsight might 
 
            again come to haunt the claimant and defendant corporation.
 
            
 
                 The undersigned finds that there is no necessity to 
 
            dwell on this issue any longer or set out additional facts.  
 
            The claimant cites certain cases and in particular D & C, 
 
            Inc. v. Sperry, 450 N.W.2d 842 to additionally support its 
 
            contention.  The undersigned finds that the facts herein are 
 
            not similar to the facts in the Sperry case.  It is 
 
            important in the case at bar that claimant, himself, 
 
            determined prior to his injury his draw (salary) and this 
 
            was the figure he used on his tax returns which are signed 
 
            as correct under the penalty of law.  Defendants' attorney 
 
            did an excellent job of bringing out the obvious difficulty 
 
            of claimant's method that he is now trying to convince the 
 
            undersigned that the claimant's income was different than 
 
            what he claimed on the tax returns.
 
            
 
                 The undersigned finds that claimant's rate for weekly 
 
            benefits is $108.67 per week based on claimant's gross 
 
            salary of $150.00 per week, married with one dependent 
 
            child, as of the date of October 5, 1987.
 
            
 
                 The remaining issue is the extent of claimant's healing 
 
            period.  Claimant contends it is two years beginning October 
 
            6, 1987, up to but not including October 6, 1989.  
 
            Defendants contend it is October 6, 1987, up to and 
 
            including October 5, 1988, and November 17, 1988 through 
 
            January 15, 1989, which amounts to 60.857 weeks.
 
            
 
                 The record is confusing as to the extent of claimant's 
 
            healing period.  The testimony of Scott B. Neff, D.O., in 
 
            his deposition, adds to this confusion as he indicates that 
 
            as of April 9, 1989, he did not have nor was he able to 
 
            determine a healing period date for claimant (Jt. Ex. 16).  
 
            (Also, see Jt. Ex. 13, p. 9)  On page 7 of joint exhibit 13, 
 
            Dr. Neff refers to a two year average healing period 
 
            following a femur fracture.  The doctor made a similar two 
 
            year comment in his deposition (Jt. Ex. 16, p.17).  On page 
 
            47 and 48 of joint exhibit 16, Dr. Neff seems to indicate in 
 
            July 1989 that he could do nothing for claimant and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            acknowledges he is making seemingly contradictory statements 
 
            as to claimant's healing period.  On page 6 of joint exhibit 
 
            13, Dr. Neff's notes indicate "I believe that he is capable 
 
            of returning to work on a light duty basis with gradual 
 
            increase of work capability."
 
            
 
                 Claimant was asked when he resumed any part of his 
 
            duties, either physical or administrative, and it appears in 
 
            his deposition he agreed or at least referred to the date 
 
            defendant insurance company had for the end of his healing 
 
            period, namely, January 1989 (Jt. Ex. 14, pp. 32, 33).
 
            
 
                 The evidence shows claimant was drawing $150 per week 
 
            in January of 1989, which was what he was drawing at the 
 
            time of his October 5, 1987 injury.  It appears later this 
 
            was increased to $200 per week, possibly sometime in 1991.  
 
            Claimant's wife was not being paid anything for her full-
 
            time work until December 1990, when she was paid $200 per 
 
            week (Jt. Ex. 15, pp. 4, 5)  Mrs. Foreman said claimant was 
 
            not being paid anything more than the $150 at that time but 
 
            sometime thereafter claimant was paid more.  It appears from 
 
            the evidence claimant was possibly beginning to posture 
 
            himself for this litigation or playing some more tax game 
 
            gymnastics.
 
            
 
                 The undersigned finds that the most credible date is 
 
            January 15, 1989.  This date is supported by the greater 
 
            weight of evidence even though it is not an easy decision.  
 
            Claimant was back to his full draw (salary).  Although his 
 
            duties were less, he was back to work and contributed to his 
 
            family owned corporation.  From the evidence, it is hard to 
 
            determine the gap in defendants' contention in which healing 
 
            period would not be payable from October 6, 1988 up to 
 
            November 17, 1988, a period of approximately six weeks.  The 
 
            undersigned finds that claimant's healing period began on 
 
            October 6, 1987 through January 15, 1989, amounting to 
 
            66.857 weeks.  With this healing period established, any 
 
            permanent partial disability would begin January 16, 1989.
 
            
 
                 The parties had stipulated to the extent of claimant's 
 
            industrial disability, which they stipulated to be 60 
 
            percent.  The parties agreed that defendants would be given 
 
            credit for 360.571 weeks of benefits that they have either 
 
            paid or will be paying and that what has been paid has been 
 
            paid at the rate of $108.67.
 
            
 
                 The net result of this decision after allowing the 
 
            credits for amounts paid or to be paid under the stipulated 
 
            industrial disability, is that claimant is entitled to an 
 
            additional 6.286 weeks of disability benefits which is 
 
            represented by the additional healing period as set out 
 
            above.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.36(1), provides:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                    1.  In the case of an employee who is paid on a 
 
                 weekly pay period basis, the weekly gross 
 
                 earnings.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's gross income was $150 per week at the time 
 
            of his October 5, 1987 work injury.
 
            
 
                 Claimant claimed, for purposes of his personal, federal 
 
            and state income tax returns, payroll tax, FICA and 
 
            withholding deductions, that his gross income on the date of 
 
            his injury of October 5, 1987, was $150 per week and that 
 
            this $150 gross was claimant's salary and that the rate of 
 
            $108.67 per week is based on Iowa Code section 85.36(1).
 
            
 
                 Claimant returned to work on January 16, 1989, and 
 
            resumed light duty work and received the same salary as he 
 
            received prior to his injury, namely, $150 gross per week 
 
            which he took out as a draw but, in fact, per his income tax 
 
            returns, this was his resulting salary.
 
            
 
                 Claimant incurred a healing period beginning October 6, 
 
            1987 through January 15, 1989, which encompasses a total of 
 
            66.857 weeks, payable at the rate of $108.67 per week.  The 
 
            commencement of claimant's permanent partial disability 
 
            benefits would begin January 16, 1989.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall be paid the sixty percent (60%) 
 
            industrial disability, which amounts to 300 weeks and which 
 
            has been stipulated by the parties.  Said benefits shall be 
 
            paid at the weekly rate of one hundred eight and 67/100 
 
            dollars ($108.67) per week.
 
            
 
                 That claimant shall be paid healing period beginning 
 
            October 6, 1987 through January 15, 1989, amounting to 
 
            sixty-six point eight five seven (66.857) weeks at the rate 
 
            of one hundred eight and 67/100 dollars ($108.67) per week.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That permanent partial disability benefits shall begin 
 
            on January 16, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Steven C Jayne
 
            Attorney at Law
 
            5835 Grand Ave  Ste 201
 
            Des Moines IA 50312
 
            
 
            
 
            Mr Roger L Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      3000; 1802
 
                      Filed October 4, 1991
 
                      Bernard J. O'Malley
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARRELL FOREMAN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 865901
 
            FOREMAN ELECTRIC & HARDWARE,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HERITAGE INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3000
 
            Found claimant's rate based on his draw from his family 
 
            owned, closely held corporation to be $150.  This $150 draw 
 
            which equalled $7,800 per year was, in fact, what he 
 
            reported as his income as employee of his corporation, on 
 
            his and his wife's personal tax and corporate tax returns 
 
            and payroll returns.  It was this same amount on which he 
 
            figured his FICA and withholding.
 
            At his hearing, claimant contends he was worth $35,200 to 
 
            his corporation based on his time and expertise contribution 
 
            and that 61% of the rent and other expenses should be 
 
            considered for the workers' compensation rate, i.e., $676.92 
 
            gross vs. $150 gross.  The parties stipulated claimant had a 
 
            60% industrial disability.
 
            
 
            1802
 
            Found claimant's healing period was 66.857 weeks and not 104 
 
            weeks.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BILL KRAMME,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 865928
 
            STYLE CRAFT, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed November 14, 1988.  Claimant sustained an 
 
            injury to his shoulder arising out of and in the course of 
 
            his employment with defendant Style Craft, Inc., on 
 
            September 8, 1987, while maneuvering rolls of fabric during 
 
            the course of his warehouse duties.  He now seeks benefits 
 
            under the Iowa Workers' Compensation Act from that employer 
 
            and its insurance carrier, The Travelers.
 
            
 
                 Hearing on the arbitration petition was had in Storm 
 
            Lake, Iowa, on December 26, 1989.  The record consists of 
 
            joint exhibits 1 through 12 and the testimony of the 
 
            following witnesses:  claimant, Stanley Thorpe, Paula Zenor, 
 
            Thomas Lynn and Craig Schmeling.  In addition, three of the 
 
            exhibits consist of the depositions of Marilea Bailey, 
 
            Arlene Berry Luchtel and Dean Schoning.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Style Craft, 
 
            Inc., on September 8, 1987; that the injury caused temporary 
 
            and permanent disability; that the extent of claimant's 
 
            entitlement to healing period benefits is not in dispute; 
 
            that claimant sustained an industrial disability to the body 
 
            as a whole and the commencement date for permanency benefits 
 
            is December 2, 1987; that the appropriate rate of weekly 
 
            compensation is $202.45; that defendants paid 12.5 weeks of 
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  the extent of 
 
            claimant's entitlement to compensation for permanent 
 
            disability; the extent of entitlement to medical benefits 
 
            (although defendants conceded that the only accrued and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            unpaid bill, exhibit 9, should be compensated); taxation of 
 
            costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, 37 years of age at the time of hearing and a 
 
            1970 high school graduate, has taken four years of college 
 
            courses, and has been awarded an Associate of Arts degree.  
 
            He last attended classes in 1974.  His work history includes 
 
            seasonal and manual labor in the twisted rope department of 
 
            Berkeley & Company, seasonal work as a carpenter, driving 
 
            and delivery work, warehouse work, brick and block laying, 
 
            heavy equipment operation and warehouse work with defendant 
 
            as a laborer and in a supervisory capacity.  Defendant Style 
 
            Craft, Inc., is a furniture manufacturer.
 
            
 
                 Claimant has worked a number of jobs since the work 
 
            injury.  He attempted to lay concrete block with some 
 
            friends, but found that his shoulder was too painful after 
 
            two days at that endeavor.  He worked for a tree service, 
 
            but found himself unable to climb because of his shoulder 
 
            and dislike of heights.  He worked as a carpenter for two 
 
            different companies, but found overhead work and hanging 
 
            sheet rock too painful.  He worked in a sales position for a 
 
            time, but left because of low commissions.  Just over a 
 
            month before hearing, claimant took a position as head of 
 
            the receiving department for a discount department store.  
 
            Claimant earned $7.50 per hour with defendant, and now earns 
 
            $4.85 per hour without fringe benefits.  However, he 
 
            anticipates a $.15 hourly raise after his 90-day 
 
            probationary period.  Claimant also anticipates gaining 
 
            various fringe benefits at that time, including health 
 
            insurance and a profit sharing and stock option program.
 
            
 
                 Claimant sustained his injury while manipulating rolls 
 
            of fabric.  He developed pain in the right shoulder, like 
 
            something "let go" and his arm dropped.  Claimant is 
 
            right-handed.
 
            
 
                 He was thereafter treated by J. Michael Donohue, M.D.  
 
            Dr. Donohue released claimant to work with restrictions and 
 
            defendant did allow light-duty employment for a time.  As of 
 
            December 2, 1987, Dr. Donohue's chart notes reflect that 
 
            claimant had reached maximum medical recovery and he was 
 
            released for all activities with a permanent restriction 
 
            against repetitive use of the right upper extremity above 
 
            chest level.  Dr. Donohue later opined that claimant had 
 
            sustained a permanent impairment of the right upper 
 
            extremity equivalent to 2%-3% of the body as a whole 
 
            attributable to the stipulated work injury.  His diagnosis 
 
            was of mild impingement syndrome.
 
            
 
                 Claimant's restrictions would make it difficult or 
 
            impossible for him to do at least some parts of his regular 
 
            job.  However, he was not given the opportunity to try any 
 
            work and was discharged because of his medical restrictions.  
 
            Defendants assert that the reason for the discharge was job 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            misconduct on claimant's part.  In fact, the record is 
 
            replete with evidence that claimant was in many respects an 
 
            unsatisfactory employee.  For example, he was of surly 
 
            temperament, wasted time, made excessive careless errors and 
 
            engaged and permitted others to engage in a great deal of 
 
            horseplay (rubber band wars, paper wad basketball and 
 
            suchlike, with a watch posted against the possible 
 
            appearance of a more responsible supervisor).  Claimant had 
 
            in fact been demoted approximately one month prior to the 
 
            work injury.  However, the incidents upon which defendants 
 
            base their case for a misconduct discharge generally 
 
            occurred before the injury, defendants did not contest 
 
            claimant's subsequent claim for job insurance benefits 
 
            (resulting in a determination by the Department of 
 
            Employment Services that he had not been discharged for 
 
            misconduct and resulting in the payment of benefits), the 
 
            progressive disciplinary scheme contemplated by company 
 
            policy was largely ignored (although claimant was repeatedly 
 
            "counseled" and given one vacation day to conduct an 
 
            "attitude check"), and personnel manager Zenor admitted that 
 
            medical restrictions were (at least) part of the reason for 
 
            his discharge.  None of the other participants in the 
 
            horseplay incidents were discharged.  While defendant may 
 
            well have been motivated to make a greater effort at keeping 
 
            claimant employed had he been a more satisfactory employee, 
 
            it is clear to this observer and it is so found that the 
 
            primary reason for claimant's discharge was his work injury 
 
            and resultant medical restrictions.  Executive vice- 
 
            president Ben Frazier wrote to claimant on June 7, 1988:  
 
            "[w]e regret that your medical condition led to this 
 
            situation" (a layoff due to the lack of appropriate work due 
 
            to claimant's medical restrictions).  Defendant now employs 
 
            approximately three times as many employees as was the case 
 
            when claimant was injured, but has not elected to offer him 
 
            any employment whatsoever.
 
            
 
                 In 1987, claimant's earnings were approximately $13,000 
 
            (the injury being in September), and in 1988 and 1989, he 
 
            earned only a total of approximately $7,500.
 
            
 
                 Claimant now suffers from a sore shoulder with overhead 
 
            work and suffers some pain at other times, sometimes even 
 
            when resting.  He has lost jobs due to his inability to work 
 
            over chest level and believes that he was not hired in 
 
            others due to his history of shoulder injury and 
 
            restrictions (which he discloses on job applications).
 
            
 
                 Stanley Thorpe testified as a vocational rehabilitation 
 
            specialist.  He is employed by Iowa Lakes Community College 
 
            in that field.  His assessment pointed out that claimant has 
 
            many aptitudes, scoring high in mental, verbal and skills 
 
            areas, and that his extensive, if incomplete, college 
 
            education and age favor his employability.  However, he 
 
            noted that employment in fields involving heavy labor would 
 
            now be difficult for claimant because of the type of injury 
 
            and because of reluctance of some employers to hire people 
 
            so injured.  He believed that claimant has suffered a 
 
            diminution in his employability because he is now unable to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            perform most of the jobs in his work history.
 
            
 
                 Dr. Donohue charged $23.10 for a brief examination of 
 
            claimant on June 22, 1988.  Claimant had noted increased 
 
            symptomatology and was assessed as having recurrent 
 
            impingement syndrome.  Dr. Donohue's chart notes reflect 
 
            that claimant was reevaluated "for his right shoulder injury 
 
            from last year."
 
            
 
                                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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Many of Stanley Thorpe's observations were well taken.  
 
            The single most important factor in determining industrial 
 
            disability in this case is that claimant is disabled from 
 
            the vast majority of work he performed pre-injury because of 
 
            his current medical restriction against repetitive lifting 
 
            at chest level or above.  In particular, carpentry, brick 
 
            laying and warehouse laboring seem out of the question.  
 
            Claimant's impairment rating may be minor (and in the 
 
            experience of this writer, seems perhaps less than many 
 
            other physicians might assign), but the restriction as to 
 
            the use of claimant's right shoulder (he is right-handed) is 
 
            severe, especially given his vocational background.  
 
            Although claimant did not seem particularly well motivated 
 
            to seek further employment, he has performed work, has 
 
            sought yet other work, and has nonetheless sustained a 
 
            serious drop in income.  Defendant's refusal to offer him 
 
            any employment following the injury may itself give rise to 
 
            industrial disability.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).  Defendant's refusal to offer work 
 
            is illustrative of the problems claimant may find in seeking 
 
            work with other employers.  That is, it is unfortunately the 
 
            case that his desirability as a potential employee is surely 
 
            diminished in the eyes of at least some potential employers.
 
            
 
                 On the other hand, claimant's age, educational 
 
            background and intelligence should facilitate retraining and 
 
            give him something of a competitive advantage in seeking 
 
            future employment.
 
            
 
                 Considering the record in general and these factors in 
 
            particular, it is held that claimant has sustained an 
 
            industrial disability equivalent to 50 percent of the body 
 
            as a whole, or 250 weeks.
 
            
 
                 Dr. Donohue's bill totalling $23.10 was clearly 
 
            incurred following a recurrence of claimant's mild 
 
            impingement syndrome.  There is a clear causal relationship 
 
            to the work injury and no shred of contrary evidence exists 
 
            of record.  Defendants shall be ordered to pay this bill.  
 
            To the extent claimant seeks an award of future medical 
 
            benefits, it should be noted that defendants' stipulation 
 
            that the injury arose out of and in the course of employment 
 
            carries with it the obligation to furnish reasonable medical 
 
            services and supplies and reasonably necessary 
 
            transportation expenses incurred for the services.  Iowa 
 
            Code section 85.27.  There are no specific treatment 
 
            modalities at issue here, except for Dr. Donohue's 
 
            recommendation that claimant reinstitute his exercise 
 
            program.  Reasonable charges for that exercise program 
 
            should be paid by defendants; the issue of future medical 
 
            entitlement is otherwise moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Defendants are to pay unto claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred two and 45/100 dollars 
 
            ($202.45) per week, totalling fifty thousand six hundred 
 
            twelve and 50/100 dollars ($50,612.50).  The commencement 
 
            date for permanent partial disability benefits is December 
 
            2, 1987.
 
            
 
                 Defendants shall pay Dr. Donohue's bill of June 30, 
 
            1988 totalling twenty-three and 10/100 dollars ($23.10).
 
            
 
                 Defendants shall supply medical services and supplies 
 
            reasonably necessary to reinstitute claimant's exercise 
 
            program as per Dr. Donohue's recommendation.
 
            
 
                 All accrued 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 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph L. Fitzgibbons
 
            Attorney at Law
 
            108 North Seventh Street
 
            P.O. Box 496
 
            Estherville, Iowa  51334
 
            
 
            Mr. Maynard M. Mohn
 
            Attorney at Law
 
            103 North Ninth Street
 
            P.O. Box 72
 
            Estherville, Iowa  51334
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed September 6, 1990
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BILL KRAMME,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 865928
 
            STYLE CRAFT, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Industrial disability determination.