Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         LOUISE INGRAM,		   :
 
		                   :
 
              Claimant,		   :
 
		                   :
 
		         vs.       :
 
        		           :      File No. 870305
 
         GENERAL MILLS,	           :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
        		           :
 
         LIBERTY MUTUAL,  	   :
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 9, 1991 and all rulings herein are affirmed and is adopted 
 
         as the final agency action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave. SW, Ste 114
 
         Cedar Rapids, Iowa 52404
 
         
 
         Mr. Kevin Rogers
 
         Mr. Jeffrey Greenwood
 
         Attorneys at Law
 
         P.O. Box 1200
 
         Waterloo, Iowa 50704
 
              
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 20, 1991
 
            BYRON K. ORTON
 
            MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            LOUISE INGRAM,	      :
 
                      		      :
 
                 Claimant, 	      :	
 
		                      :
 
            		vs.           :
 
 		                      :       File No. 870305
 
            GENERAL MILLS, 	      :
 
		                      :         A P P E A L
 
                 Employer, 	      :
 
 		                      :       D E C I S I O N
 
            		and 	      :
 
                      		      :
 
            LIBERTY MUTUAL,           :
 
                      		      :
 
                 Insurance Carrier,   : 
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 9, 
 
            1991.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         LOUISE INGRAM,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  870305
 
         GENERAL MILLS,                :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in arbitration brought by Louise Ingram 
 
         as a result of injuries to her low back which occurred on August 
 
         23, 1987.  Defendants denied compensability for the injury, paid 
 
         weekly benefits and some medical expenses.
 
         
 
              The case was heard and fully submitted at Cedar Rapids, 
 
         Iowa, on February 20, 1991.  The record in the proceeding 
 
         consists of joint exhibits A through K; claimant's exhibit 1 
 
         through 5 and testimony from claimant.
 
         
 
              All briefs filed on behalf of claimant and defendants' were 
 
         considered.
 
         
 
                                      issues
 
         
 
              The issues presented for determination are as follows:
 
         
 
              1.  Whether claimant sustained an injury on August 23, 1987, 
 
         arising out of and in the course of employment with employer.
 
         
 
              2.  Whether the injury is a cause of temporary total 
 
         disability or healing period.
 
         
 
              3.  Whether the injury is a cause of permanent partial 
 
         disability and the extent of entitlement under Iowa code section 
 
         85.34(2)(u). 
 
         
 
              4.  Claimant's entitlement to medical benefits pursuant to 
 
         Iowa Code section 85.27 and the causal connection to the alleged 
 
         injury; and 
 
         
 
              5.  Whether claimant is entitled to odd-lot status.
 
         
 
                                 findings of fact
 
         
 
              Having considered all the evidence received the following 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         findings of fact are made:
 
         
 
              Claimant, Louise Ingram, began working for employer, General 
 
         Mills, in September 1982.  On August 23, 1987, claimant worked in 
 
         the Pop Secret Department.  She was a production worker 
 
         responsible for the operation of a machine which packaged 
 
         popcorn.  Claimant began work at 11 p.m. on August 23, 1987.  
 
         Claimant was responsible for obtaining boxes from a pallet at the 
 
         head of her machine.  The boxes contained bags which would be fed 
 
         into the machine.  Each box weighed approximately 40 to 50 
 
         pounds.  Claimant would open the box, remove the bags and feed 
 
         them into the machine.  The bags would then go on down the 
 
         production line for further processing.  On the evening of August 
 
         23, 1987, claimant picked up one of these boxes and while 
 
         carrying it to her work station she stepped on some corn and slid 
 
         into a wall.  Claimant reported no immediate pain until her shift 
 
         was over.  At shift's end, claimant was taken to the hospital in 
 
         Cedar Rapids for low back pain.  Claimant did not report further 
 
         significant problems until the beginning of October 1987.  At 
 
         that time, her low back was bothering her so much that she 
 
         decided to bid on a new job so as to get off her feet. 
 
         
 
              In October, claimant went to the company authorized 
 
         physician for treatment.  She was then referred to Warren N. 
 
         Verdeck, M.D., for further treatment.  She was also seen by 
 
         William Roberts, M.D.  Dr. Verdeck diagnosed claimant's problem 
 
         on November 13, 1987, as spinal stenosis and nerve root 
 
         compression (exhibit E, page 4).  Dr. Verdeck later described 
 
         claimant's problem as lumbar strain (ex. E, p. 11).  He noted on 
 
         March 23, 1988, that he was unable to equate her level of pain 
 
         symptoms with the findings of the physical examination (ex. E, p. 
 
         7).  It is also noted that on April 7, 1988, an EMG test revealed 
 
         no evidence of neuro compression (ex. E, p. 8).  Claimant made 
 
         numerous attempts to return to work for employer, but was unable 
 
         to do so because of back pain.  She went off work as a result of 
 
         the August 23, 1987, injury on November 2, 1987.  Subsequent to 
 
         that date claimant has not returned to work, nor has she applied 
 
         for any other jobs. 
 
         
 
              Claimant was examined by Richard Neiman, M.D., neurologist, 
 
         on several occasions.  Dr. Neiman stated that claimant had a 
 
         preexisting degenerative arthritis in her low back which was 
 
         aggravated by the August 1987 injury (ex. 3B, pp. 30 & 45).  Dr. 
 
         Neiman stated that the low back pain was an aggravation of a 
 
         preexisting condition.  He further stated on February 11, 1991, 
 
         that claimant should be restricted from sitting or standing for 
 
         more than 15 minutes to one-half hour at a time.  He stated that 
 
         claimant should be allowed to change positions with no prolonged 
 
         walking.  Dr. Neiman rated claimant's permanent partial 
 
         impairment which resulted from the August 23, 1987, injury as 15 
 
         to 18 percent of the body as a whole (ex. 3B, p. 38).  Dr. Neiman 
 
         stated that claimant is currently experiencing depression 
 
         secondary to the injury of August 23, 1987.  Dr. Neiman stated in 
 
         his deposition that he is a neurologist and is not an expert in 
 
         psychology or psychiatry (ex. 3B, p. 55).
 
         
 
              Dr. Verdeck was of the opinion that claimant could not 
 
         return to her previous job that she held on August 23, 1987.  He 
 
         imposed a 15-pound lifting restriction upon claimant on June 30, 
 
         1988 (ex. E, pp. 8 & 9).  His work restrictions were based in 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         part upon a functional capacity assessment (ex. E, p. 23).  In 
 
         that assessment Carol Thompson, physical therapist, noted that 
 
         claimant was self-limiting in her participation and the 
 
         assessment indicates what the patient wants to do (ex. E, p. 23).  
 
         Dr. Roberts opined on July 20, 1988, that claimant should be 
 
         restricted from repetitive work and lifting above 10 pounds (ex. 
 
         E, p. 35).  However, Dr. Roberts changed his opinion to a 
 
         15-pound restriction (ex. E, p. 36).  He also was of the opinion 
 
         that claimant could not return to her old job for employer.  On 
 
         December 2, 1988, Dr. Roberts found that claimant had incurred a 
 
         10 percent permanent partial impairment to her low back.
 
         
 
              The employer was unable to meet claimant's work 
 
         restrictions.  A vocational rehabilitation consultant was 
 
         retained in an effort to assist claimant with further schooling 
 
         and job placement.  Claimant also sought the assistance of a 
 
         state vocational rehabilitation counselor.  Claimant's 
 
         rehabilitation program consisted primarily of attempts to enter a 
 
         retraining program at the Kirkwood Community College.  She made 
 
         numerous attempts at participating in class work at the college 
 
         each resulting in failure with the exception of one computer 
 
         course which was completed in the spring of 1990.  Claimant 
 
         stated that she was unable to finish various courses due to pain 
 
         and difficulty with her memory as well as other shoulder and neck 
 
         problems.  On cross-examination it was revealed that claimant had 
 
         encountered a bronchitis and pneumonia problem during one of her 
 
         semesters which forced her to drop out of school.  It was also 
 
         revealed on cross-examination that claimant had signed up for 
 
         many courses in the past without completing those courses (ex. K, 
 
         pp. 27-30).  
 
         
 
              To date of hearing claimant had failed to complete any 
 
         retraining program.  Claimant also testified that to date of 
 
         hearing she had not applied for any other work.  However, 
 
         claimant had applied for and received social security benefits.  
 
         
 
              Claimant still complains of severe low back pain as well as 
 
         right hand pain and cervical spine pain.  However, claimant does 
 
         not relate the right hand carpal tunnel syndrome to the accident 
 
         of August 23, 1987.  Dr. Neiman does not relate the cervical 
 
         spine pain to the accident of August 23, 1987 (ex. 3B, p. 59).  
 
         
 
              The first issue to be resolved is whether claimant sustained 
 
         an injury on August 23, 1987, arising out of and in the course of 
 
         employment with employer.  Claimant's testimony that she slipped 
 
         and fell against a wall on August 23rd was essentially unrefuted.  
 
         The medical records substantiate a history of having been treated 
 
         for low back pain on that date.  Dr. Neiman's testimony, at his 
 
         deposition of February 11, 1991, linked claimant's current low 
 
         back problems to the August 23, 1987, injury (ex. 3B, pp. 30 & 
 
         45).  It is found that on August 23, 1987, claimant sustained an 
 
         injury to her low back when she slipped and fell against a wall 
 
         which arose out of and in the course of employment with employer.
 
         
 
              The next issue to be decided is whether the August 23, 1987, 
 
         injury is a cause of temporary total disability or healing 
 
         period.  The parties stipulated that the extent of weekly 
 
         compensation for healing period, if defendants are liable, is 
 
         from November 2, 1987 through December 2, 1988.  The medical 
 
         records, when combined with claimant's testimony, indicate that 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         during that period of time, claimant was under active medical 
 
         care for the treatment of her low back problems.  It is found 
 
         that the injury of August 23, 1987, was the cause of claimant's 
 
         lost time during the period November 2, 1987 through December 2, 
 
         1988.  
 
         
 
              The third issue to be determined concerns whether the injury 
 
         is a cause of permanent disability and the extent of entitlement 
 
         under Iowa Code section 85.34(2)(u).  Both Dr. Neiman and Dr. 
 
         Roberts stated that claimant sustained permanent partial 
 
         impairment to her low back (ex. 3B, p. 39; ex. E, p. 39).  Dr. 
 
         Neiman, Dr. Roberts and Dr. Verdeck all agreed that claimant 
 
         should be restricted in performing physical labor as a result of 
 
         her low back problem (ex. E, pp. 8, 35; ex. 3B, p. 35).  Dr. 
 
         Neiman specifically stated that the impairment and the work 
 
         restrictions were a direct result of the aggravation injury of 
 
         August 23, 1987.  It is found that the low back injury is a cause 
 
         of permanent disability.  
 
         
 
              The next issue concerns the extent of entitlement to 
 
         industrial disability.  Factors to be considered when assessing 
 
         industrial disability include claimant's age, education, 
 
         experience, work restrictions, permanent impairment and 
 
         employer's offer of work or vocational rehabilitation.
 
         
 
              In the case at hand, claimant was age 49 on the date of 
 
         injury.  Claimant's education consists of high school with an 
 
         additional two years of accounting completed at a community 
 
         college in 1981.  Claimant stated that she received an associate 
 
         of arts degree from the community college.  Claimant's work 
 
         history consists of approximately six and one-half years work at 
 
         General Mills which is a food processing plant.  Her duties could 
 
         best be described as production line labor work which required 
 
         occasional lifting of up to 50 pounds.  Claimant was earning 
 
         $14.85 per hour at the time of the injury on August 23, 1987.  
 
         Claimant's past work experience includes acting as an assistant 
 
         payroll clerk on a part-time basis, working on a production line 
 
         for an electronics firm, working on a production line at a 
 
         packing plant, and again working on a production line in a box 
 
         factory.  With the exception of the part-time payroll clerk 
 
         position, claimant's work experience consists primarily of 
 
         production line labor.  
 
         
 
              Claimant's work restrictions imposed as a result of the 
 
         August 23, 1987, injury now limit claimant to lifting no more 
 
         than 15 pounds on a repetitive basis.  This work restriction 
 
         prevents claimant from returning to her work with employer and 
 
         probably from returning to any of the other jobs for which she 
 
         has prior training, with the exception of the assistant payroll 
 
         clerk.  The work restrictions imposed by the various physicians 
 
         reveal a significant loss of access to work for which claimant 
 
         has prior training and experience.
 
         
 
              Claimant's impairment ratings ranged from 10 percent to 20 
 
         percent of the body as a whole.  The impairment ratings, when 
 
         viewed in conjunction with the work restrictions, weigh heavily 
 
         in favor of a finding of industrial disability. 
 
         
 
              Claimant was not offered a light duty position with employer 
 
         subsequent to her achieving maximum medical improvement in 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         December of 1988.  However, employer did offer the assistance of 
 
         a vocational rehabilitation counselor so as to assist claimant in 
 
         locating reemployment or being retrained.  
 
         
 
              Lewis E. Vierling is a vocational rehabilitation counselor.  
 
         He issued a report on February 12, 1991, stating that claimant is 
 
         employable in the range of $4 to $6 per hour (ex. C, pp. 24 & 
 
         25).  When compared to claimant's pre-injury wage of over $14 per 
 
         hour, it is apparent that claimant has sustained a significant 
 
         loss of earning capacity as a result of the August 23, 1987, 
 
         injury.  Claimant, at age 49, would be expected to work at least 
 
         another 16 years before retirement.  Claimant's work restriction 
 
         of lifting no more than 15 pounds repetitively also severely 
 
         limits her ability to locate employment.  On the other hand, 
 
         claimant's two year degree in accounting lessens the impact of 
 
         the work restrictions.  Having considered all the material 
 
         factors, it is found that claimant sustained 40 percent 
 
         industrial disability as a result of injuries to her low back 
 
         which occurred on August 23, 1987.  
 
         
 
              Claimant alleged that she is entitled to odd-lot status.  A 
 
         worker becomes an odd-lot employee when an injury makes the 
 
         worker incapable of obtaining employment in any well known branch 
 
         of the labor market.  In the case at hand, claimant's argument 
 
         for odd-lot fails for two reasons.  First, claimant has not made 
 
         a search for employment subsequent to achieving maximum medical 
 
         improvement in December 1988.  Second, Lewis E. Vierling, a 
 
         rehabilitation consultant, opined that claimant is employable 
 
         (ex. C, pp. 24 & 25).  Claimant has failed to prove by a 
 
         preponderance of the evidence that she is not employable in any 
 
         well known branch of the labor market.  
 
         
 
              The final issue concerns claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27 and the causal connection 
 
         to the alleged injury.  Having proven that she sustained an 
 
         injury on August 23, 1987, it follows that claimant is entitled 
 
         to medical benefits related to the low back injury.  It should be 
 
         noted that claimant's petition alleges an injury on August 23, 
 
         1987, to the low back.  Injuries or afflictions of the upper 
 
         extremity or cervical spine are not at issue in this case.  Any 
 
         alleged request for medical benefits relating to treatment of the 
 
         right upper extremity or the cervical spine are, therefore, not 
 
         compensable.  Claimant is entitled to receive payment for all 
 
         Iowa Code section 85.27 expenses which relate direct to the 
 
         treatment of the low back condition in question.  Payment for the 
 
         medical expenses should be made direct to the medical provider.  
 
         Claimant is entitled to reimbursement for medical expenses only 
 
         where she has paid them from her own funds.
 
         
 
              The final issue concerning medical expenses involves 
 
         claimant's allegation of a work-related depression.  Dr. Neiman 
 
         stated that claimant was suffering from a moderate depression 
 
         secondary to the pain caused by the low back (ex. 3B, pp. 30 & 
 
         31).  Dr. Neiman also stated that the depression was not a cause 
 
         of permanent disability (ex. 3B. p. 59).  In a workers' 
 
         compensation case, it is claimant's burden to prove by a 
 
         preponderance of the evidence the issues presented.  Dr. Neiman 
 
         issued an opinion stating that the cause of the depression was 
 
         the work-related low back injury.  However, Dr. Neiman is a 
 
         neurologist (ex. 3B, p. 55).  Dr. Neiman stated that he was not a 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         psychologist or psychiatrist.  His opinion on causation is 
 
         rejected due to his lack of psychiatric expertise.  It is also 
 
         noted that Dr. Neiman only saw claimant on two separate occasions 
 
         (ex. 3B, p. 41).  Claimant failed to offer sufficient credible 
 
         medical evidence supporting her allegation of a work-related 
 
         depression.  For that reason all section 85.27 expenses related 
 
         to the alleged depression are not compensable as claimant has 
 
         failed to prove by a preponderance of the evidence a causal 
 
         connection to the August 23, 1987, injury to her low back.  
 
         
 
                                conclusions of 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 an injury on August 23, 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). 
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         on August 23, 1987, she sustained an injury to her low back which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Section 85.34(1), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered 
 
         permanent partial disability until (1) he has returned to work; 
 
         (2) is medically capable of returning to substantially similar 
 
         employment; or (3) has achieved maximum medical recovery.  The 
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Company, Vol. 2-1, State of Iowa Industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
              Claimant has proven by a preponderance of the evidence 
 
         entitlement to weekly compensation for healing period benefits 
 
         beginning November 2, 1987, through December 2, 1988.  
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.   
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, l985).
 
         
 
              The medical opinion of Dr. Neiman established that claimant 
 
         sustained permanent disability as a result of an aggravation of a 
 
         preexisting arthritic back condition.  Upon considering all the 
 
         material factors it is found that the evidence in this case 
 
         supports an award of 40 percent permanent partial disability 
 
         which entitles the claimant to recover 200 weeks of benefits 
 
         under Iowa Code section 85.34(2)(u) as a result of low back 
 
         injury incurred on August 23, 1987.
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-
 
         lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.  Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950).  
 
         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 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such cases 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         noncompensable 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).
 
         
 
              If a claimant has made no attempt to find work, then he 
 
         cannot be determined to be an odd-lot employee.  Emshoff v. 
 
         Petroleum Transportation Services, file no. 753723 (Appeal 
 
         Decision March 31, 1987); Collins v. Friendship Village, Inc., 
 
         IAWC Decisions of the Iowa Industrial Commissioner 151 (1988).
 
         
 
              Claimant has failed to produce substantial evidence showing 
 
         that she is not employable in the competitive labor market and 
 
         her claim for odd-lot doctrine fails.  
 
         
 
              The employer, for all injuries compensable under chapter 85 
 
         or chapter 85A, shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical 
 
         rehabilitation, nursing, ambulance and hospital services and 
 
         supplies; therefore, and shall allow reasonable necessary 
 
         transportation expenses incurred for such services.  The employer 
 
         has the right to choose the provider of care.  Iowa Code section 
 
         85.27.
 
         
 
               "Claimant is not entitled to reimbursement for medical 
 
         bills unless he shows that he paid them from his own funds."  See 
 
         Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
              Claimant has proven entitlement to receive payment of Iowa 
 
         Code section 85.27 expenses which are related to the low back 
 
         injury of August 23, 1987.  Claimant has failed to prove by a 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         preponderance of the evidence that her depression resulted from 
 
         the work-related injury of August 23, 1987.
 
         
 
                                      order
 
         
 
              IT IS THEREFORE, ORDERED:
 
         
 
              Defendants are to pay healing period benefits at the rate of 
 
         three hundred sixty-five and 85/100 dollars ($365.85) per week 
 
         for the period November 2, 1987 through December 2, 1988.
 
         
 
              Defendants are to pay claimant two hundred (200) weeks of 
 
         permanent partial disability at the rate of three hundred 
 
         sixty-five and 85/100 dollars ($365.85) per week commencing 
 
         December 3, 1988.
 
         
 
              Defendants are to pay claimant's section 85.27 expenses 
 
         related to treatment of the low back injury incurred on August 
 
         23, 1987.
 
         
 
              It is further ordered that defendants shall receive credit 
 
         for benefits previously paid.
 
         
 
              It is further ordered that all accrued benefits are to be 
 
         paid in a lump sum.
 
         
 
              It is further ordered that interest will accrue pursuant to 
 
         Iowa Code section 85.30. 
 
         
 
              It is further ordered that the costs of this action are 
 
         assessed against defendants pursuant to rule 343 IAC 4.33.
 
         
 
              It is further ordered that defendants file claim activity 
 
         reports as requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of April, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MARLON D. MORMANN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave SW STE 113
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. Kevin Rogers
 
         Mr. Jeffrey Greenwood
 
         Attorneys at Law
 
         528 W. Fourth St.
 
         PO Box 1200
 
         Waterloo, Iowa  50704
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100 51802 52500 51803 54100
 
                      Filed April 9, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOUISE INGRAM,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  870305
 
            GENERAL MILLS,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100 51802 52500
 
            Claimant sustained her burden in proving that a fall at work 
 
            aggravated her preexisting low back condition and claimant 
 
            was entitled to healing period and Iowa Code section 85.27 
 
            benefits.
 
            
 
            51803
 
            Claimant with nonsurgical low back injury at age 49, a high 
 
            school education and two years accounting with primarily 
 
            manual labor experience, found entitled to 40 percent 
 
            permanent partial disability.  Claimant had a 10 to 20 
 
            percent impairment rating and 15 pound work restriction.  
 
            Employer did not reemploy, but did offer vocational 
 
            rehabilitation.
 
            
 
            54100
 
            Claimant did not prove odd-lot as she never made a search 
 
            for work.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOUISE INGRAM,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  870305
 
            GENERAL MILLS,                :
 
                                          :      R U L I N G  O N 
 
                 Employer,                :
 
                                          :    A P P L I C A T I O N
 
            and                           :
 
                                          :            F O R
 
            LIBERTY MUTUAL,               :
 
                                          :      R E H E A R I N G
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            Claimant filed an application for rehearing pursuant to Rule 
 
            343 IAC 4.24 on April 29, 1991.
 
            Claimant alleges among other things that industrial 
 
            disability should be increased because claimant does not 
 
            have an accounting degree.  The record must be clarified to 
 
            reflect that "accounting" was an error in dictation that did 
 
            not affect the finding of industrial disability.  Joint 
 
            exhibit K clearly reveals claimant's academic history.  This 
 
            exhibit, as well as all the other exhibits, was read and 
 
            considered prior to filing the arbitration decision.
 
            The reasoning that claimant's prior college course work 
 
            lessens the impact of the work restrictions did not hinge 
 
            upon claimant having a degree in accounting.  Other factors 
 
            were also considered, such as claimant's extreme lack of 
 
            credibility based upon her actions and demeanor while on the 
 
            witness stand.  This lack of credibility detracts from the 
 
            weight to be given claimant's testimony.  It is also noted 
 
            that claimant demonstrated little motivation to seek 
 
            reemployment.  The prior finding of industrial disability is 
 
            correct.
 
            Claimant's remaining arguments are also rejected as having 
 
            no merit.
 
            IT IS THEREFORE, ORDERED THAT:
 
            Claimant's application for rehearing is denied.
 
            
 
            
 
            Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas Wertz
 
            Attorney at Law
 
            4089 21st Ave SW STE 114
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. Kevin Rogers
 
            Mr. Jeffrey Greenwood
 
            Attorneys at Law
 
            PO Box 1200
 
            Waterloo, Iowa  50704
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            SUSAN GROVE,                    :
 
                                            :
 
                 Claimant,                  :       File No. 870388
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            MARIAN HEALTH CENTER,           :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      issues
 
            
 
                 The dispositive issue on appeal is:  Whether the 
 
            claimant has proved that her injury was the cause of a 
 
            permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 Claimant started to work for employer on February 10, 
 
            1986, after passing a physical examination administered on 
 
            February 4, 1986 (ex. U, p. 10).  Claimant's medical record 
 
            with employer shows no shoulder, neck or back injuries until 
 
            this injury which occurred on November 21, 1987 (ex. U, p. 
 
            5).  
 
            
 
                 This corroborates claimant's testimony that she enjoyed 
 
            good health when she accepted this job except for being 
 
            overweight.  The Mayo Clinic recorded that claimant is five 
 
            foot three inches tall and weighed 248 pounds (ex. C, p. 
 
            12).  
 
            
 
                 The supervisors incident investigation report stated 
 
            that an elevator did not stop level with the landing and 
 
            claimant lifted the housekeeping cart from the elevator onto 
 
            the landing and pulled muscles in her back (ex. U, p. 42).
 
            
 
                 On the date of the injury, November 21, 1987, S. E. 
 
            Vlach, M.D., diagnosed that claimant sustained a muscular 
 
            strain on the right latissimus dorsi muscle (ex. I).  The 
 
            location of this muscle is in the mid to upper back.  As 
 
            claimant's treatment continued on December 4, 1987, J. P. 
 
            Tiedeman, M.D., diagnosed that claimant had a low grade 
 
            muscle strain of the dorsolumbar muscle area (ex. J).  On 
 
            December 14, 1987, John H. Roberts, M.D., diagnosed 
 
            subscapular bursitis (ex. L).  On December 24, 1987, D. J. 
 
            Greco, M.D., assessed follow-up thoracic strain (ex. M).  
 
            When John A. Walck, M.D., of the Back Rehabilitation Clinics 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of America, Inc., evaluated claimant on March 22, 1988, he 
 
            assessed strain of the medial scapular musculature - 
 
            probably includes rhomboid major (ex. S).  Dr. Liudahl, who 
 
            became claimant's primary treating physician, diagnosed 
 
            chronic thoracic and cervical paraspinus muscle strain in 
 
            addition to trapezius muscle strain (trapezius syndrome) 
 
            when he first examined claimant on December 22, 1987 (ex. A, 
 
            page 1).  The Mayo Clinic, on July 18, 1988, indicated that 
 
            claimant had suffered cervical and thoracic strain with 
 
            associated tension myalgias (ex. C, p. 13).
 
            
 
                 After a lengthy course of treatment which included pain 
 
            medications, muscle relaxants, cortisone injections, a TENS 
 
            unit, heat, massage, ultrasound, an EMG which showed no 
 
            indication of cervical radiculopathy, and an evaluation at 
 
            the Mayo Clinic, Dr. Liudahl dismissed claimant to return to 
 
            full activities with no restrictions, on September 1, 1988, 
 
            and determined that she had a three percent impairment of 
 
            the upper extremity for residual pain and weakness in this 
 
            upper extremity (ex. A, pp. 5 & 8-10).
 
            
 
                 Only plain x-rays were taken of claimant's injury and 
 
            all of them were within normal limits (ex. A, p. 1; ex. B, 
 
            p. 3; ex. C, pp. 6 & 29; ex. J, p. 4; ex. S, p. 1).
 
            
 
                 Claimant was examined at the Mayo Clinic and tested 
 
            extensively between July 17, 1988 and July 22, 1988.  
 
            Sherwin Goldman, M.D., of the Mayo Clinic Impairment 
 
            Evaluation Center, stated that examination of the right 
 
            shoulder showed no definite areas of instability; range of 
 
            motion was complete and full and there was no definite 
 
            rotator cuff, biceps tenderness or disruption.  He did state 
 
            that Cybex testing disclosed low torque values, especially 
 
            on the right, and she was consistently weak in abduction and 
 
            extension with primarily some weakness in flexion and 
 
            extension.  Dr. Goldman stated, "A work tolerance screen 
 
            revealed a safe work level at the light category as defined 
 
            by the United States Department of Labor in the Dictionary 
 
            of Occupational Titles.  This would include occasional 
 
            lifting of up to 20 pounds with frequent lifting of up to 10 
 
            pounds." (ex. B, p. 3; ex. C, p. 14).  
 
            
 
                 Dr. Goldman concluded there was no indication for any 
 
            further investigative procedures, hospitalizations or 
 
            surgery.  He recommended further strengthening programs and 
 
            work hardening.  He said her condition at that time appeared 
 
            to be permanent and stationary, but there was no evidence of 
 
            any permanent physical impairment (ex. B, p. 3; ex. C, p. 
 
            14).  
 
            
 
                 Employer went to great lengths after the injury on 
 
            October 21, 1987, to try to accommodate claimant's 
 
            limitations.  Employer went so far as to follow Dr. 
 
            Liudahl's recommendation that claimant work one hour a day 
 
            for one week, two hours a day for a second week and so on 
 
            until she was able to work a full eight hours a day.  
 
            Claimant testified that she did this for two hours one day, 
 
            "And then after the two hours I couldn't hardly move, the 
 
            pain was so bad; so I went back to outpatients and saw Dr. 
 
            Tiedeman and --" (tr. p. 40).  September 12, 1988, was the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            last day the claimant worked (tr. p. 41).
 
            
 
                 Defendants retained the services of Gail F. Leonhardt, 
 
            M.S., C.R.C., C.I.R.S., a vocational rehabilitation 
 
            consultant.  Leonhardt did not interview claimant, but did 
 
            perform an extensive study of the duties of claimant's job 
 
            as a housekeeper for employer (ex. T, pp. 1-7).  Among other 
 
            things, he found that the job involved lifting up to 25 
 
            pounds (ex. T, p. 2), which placed this job in the medium 
 
            strength category as defined in the Dictionary of 
 
            Occupational Titles.  The medium classification means 
 
            lifting 50 pounds maximum with frequent lifting and/or 
 
            carrying of objects weighing up to 25 pounds (ex. T, p. 3).  
 
            At the hearing, Leonhardt testified that he met with Dr. 
 
            Liudahl on September 15, 1988, and discussed the particular 
 
            job in detail.  Leonhardt testified that Dr. Liudahl 
 
            endorsed it and indicated that those restrictions were far 
 
            below the workers capacity and were safely within her 
 
            limits.  In fact, she would be able to do more than that.  
 
            
 
                 Leonhardt conceded that the housekeeping job, which was 
 
            in the low end of the medium category of strength level, was 
 
            not within the light duty work category prescribed by Dr. 
 
            Goldman at the Mayo Clinic Impairment Evaluation Center (tr. 
 
            p. 90).
 
            
 
                 Previously, there were no limitations on claimant's 
 
            strength and lifting ability.  She could lift over 50 pounds 
 
            which would be the heavy work strength level.  Now she is 
 
            limited to only occasional lifting of up to 20 pounds and 
 
            frequently lifting of up to 10 pounds (ex. B, p. 3; ex. C, 
 
            p. 14).
 
            
 
                 Maynard Grove, claimant's husband of 17 years, 
 
            testified that claimant can no longer vacuum, do dishes, 
 
            scrub floors.  She can no longer play volleyball and 
 
            softball on the league team for employer once a week as she 
 
            formerly did.  He stated that she cannot lift her right arm 
 
            above shoulder level to get in the cupboard at home.  She is 
 
            in constant pain, depressed and goes to bed early because of 
 
            the pain (tr. pp. 67-69).  
 
            
 
                 Treating physicians and employer contemplated sending 
 
            claimant to a pain clinic on one or two occasions, but never 
 
            did so (tr. pp. 39, 47 & 48).  Claimant testified that she 
 
            became depressed and contacted Siouxland Mental Health, but 
 
            got no help.  She also saw a psychiatrist on her second trip 
 
            to Mayo Clinic in January of 1990 and he indicated that he 
 
            would call Dr. Liudahl about prescribing an anti-depressant 
 
            for claimant (tr. pp. 51 & 65; ex. C, p. 27).  
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant has the burden of proving that her injury was 
 
            the cause of a permanent disability.  Dr. Liudahl released 
 
            claimant to return to full activities with no restrictions.  
 
            On September 1, 1988, however, Dr. Liudahl determined that 
 
            claimant had a three percent impairment of the upper 
 
            extremity for residual pain and weakness.  The apparent 
 
            inconsistency in Dr. Liudahl's assessments are unexplained.  
 
            From this record it cannot be said that it is Dr. Liudahl's 
 
            opinion that claimant's injury was the cause of a permanent 
 
            disability.  Dr. Goldman found that there was no evidence of 
 
            any permanent physical impairment.  It is also worth noting 
 
            that the early diagnosis of claimant indicated that she had 
 
            a muscle strain.  There is no reliable medical evidence in 
 
            the record that claimant's work injury caused a permanent 
 
            disability.  Claimant has not met her burden of proving that 
 
            her work resulted in a permanent disability.
 
            
 
                 It is determined that claimant is entitled to $1,779.60 
 
            in medical and medical transportation expenses for the trip 
 
            to Mayo Clinic on July 17, 1988.  These expenses are 
 
            itemized on claimant's exhibit 2 and constitute the charges 
 
            of the clinic, $1,471.40; the round trip mileage of $123.20; 
 
            five nights lodging at $135 and meals for five days in the 
 
            amount of $50.  Both parties agreed that claimant was sent 
 
            to the clinic at this time pursuant to Dr. Liudahl's 
 
            referral (ex. A, p. 4).
 
            
 
                 It is determined that claimant is not entitled to $971 
 
            in medical mileage and transportation expenses for the 
 
            second trip to the Mayo Clinic on January 22 through January 
 
            24, 1990; for the reason that claimant testified that no one 
 
            from employer or insurance carrier authorized this trip (tr. 
 
            p. 61).  Nor did an authorized physician refer claimant to 
 
            Mayo Clinic on this occasion.  Claimant's attorney 
 
            acknowledged that this trip was not authorized by employer 
 
            or insurance carrier (ex. V).
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).  Claimant has the burden of proving that the fees 
 
            charged for such services are reasonable.  Anderson v. High 
 
            Rise Constr. Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 That defendant pay to claimant or the provider of 
 
            medical services one thousand seven hundred seventy-nine and 
 
            60/100 dollars ($1,779.60) in medical expenses as itemized 
 
            above.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William Miller
 
            Attorney at Law
 
            P.O. Box 3107
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Matthew A. Grotnes
 
            Mr. Frank Harrison
 
            Attorney at Law
 
            2700 Grand Ave., Ste. 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1402.40
 
            Filed January 28, 1993
 
            Byron K. Orton
 
            WRM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            SUSAN GROVE,                    :
 
                                            :
 
                 Claimant,                  :       File No. 870388
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            MARIAN HEALTH CENTER,           :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1402.40
 
            Claimant failed to prove that her injury was the cause of a 
 
            permanent disability.  Claimant's treating doctor returned 
 
            her to full activities with no restrictions.  However, this 
 
            doctor gave claimant an impairment rating for residual pain 
 
            and weakness.  The apparent inconsistencies were unexplained 
 
            in the record.  Another doctor who did extensive testing 
 
            when claimant was seen at the Mayo Clinic indicated that 
 
            there was no evidence of any permanent physical impairment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN GROVE,                  :
 
                                          :
 
                 Claimant,                :       File No. 870388
 
                                          :
 
            vs.                           :
 
                                          :     A R B I T R A T I O N
 
            MARIAN HEALTH CENTER,         :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Susan 
 
            Grove, claimant, against Marian Health Center, employer, and 
 
            self-insured defendant, for benefits as a result of an 
 
            injury which occurred on November 21, 1987.  A hearing was 
 
            held in Sioux City, Iowa, on April 5, 1990, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by William L. Miller.  Defendant was represented 
 
            by Matthew A. Grotnes and Frank T. Harrison.  The record 
 
            consists of the testimony of Susan Grove, claimant; Maynard 
 
            Grove, claimant's husband; Rita Murphy, manager of 
 
            compensation and benefits; Gail Leonhardt, rehabilitation 
 
            consultant; joint exhibits A through T; claimant's exhibits 
 
            1, 2 and 3; and defendant's exhibits U and V.  Defendant 
 
            presented a brief description of disputes at the time of the 
 
            hearing.  The deputy ordered a transcript of the hearing.  
 
            Both attorneys submitted excellent posthearing briefs.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury that arose out of and in the course of employment 
 
            with employer on November 21, 1987.
 
            
 
                               preliminary matters
 
            
 
                 Claimant's attorney, in his brief, agreed with the 
 
            employer that temporary total disability ceased on or about 
 
            September 1, 1988, when Kevin J. Liudahl, M.D., an 
 
            orthopedic surgeon and claimant's treating physician, 
 
            determined that claimant had attained maximum medical 
 
            improvement.  Therefore, the issues of whether the injury 
 
            was the cause of additional temporary disability and whether 
 
            claimant is entitled to additional temporary disability 
 
            benefits, as shown on the hearing assignment order and the 
 
            prehearing report, are now moot and will not be addressed in 
 
            this decision.  
 
            
 
                 The parties agreed that defendant paid claimant 7 1/2 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of $133.07 per week based upon a 3 percent 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            permanent functional impairment to the right arm.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether claimant sustained an injury to the right 
 
            arm, a scheduled member, or whether claimant sustained an 
 
            injury to the body as a whole;
 
            
 
                 2.  Whether the injury was a cause of additional 
 
            permanent disability;
 
            
 
                 3.  Whether claimant is entitled to additional 
 
            permanent disability benefits and, if so, the extent of 
 
            benefits to which she is entitled; and
 
            
 
                 4.  Whether claimant is entitled to medical benefits.
 
            
 
                         scheduled member-body as a whole
 
            
 
                 It is determined that claimant has sustained an injury 
 
            to the body as a whole.
 
            
 
                 The fact that a physician rates a body as a whole 
 
            injury in terms of the right upper extremity does not 
 
            convert a body as a whole injury to a scheduled member 
 
            injury.  Iowa Code section 85.34(2)(m) provides for 250 
 
            weeks of benefits for an injury to an arm.  The Guides To 
 
            The Evaluation of Permanent Impairment, Third Edition, 
 
            published by the American Medical Association, beginning at 
 
            section 3.1, The Hand and Upper Extremity, includes a 
 
            criteria for rating the shoulder at section 3.1(g).  Thus an 
 
            injury to the upper extremity is not equated to an injury to 
 
            the arm.  Shoulder injuries are most often determined to be 
 
            injuries to the body as a whole in workers' compensation 
 
            determinations.  Certain shoulder parts are included in the 
 
            upper extremity by physicians.  Physicians typically rate 
 
            shoulder injuries in terms of the upper extremity.  However, 
 
            this does not constitute shoulder injuries as injuries to 
 
            the arm under Iowa Code section 85.34(2)(m).
 
            
 
                 In this case, on the date of an injury, November 21, 
 
            1987, S. E. Vlach, M.D., diagnosed that claimant sustained a 
 
            muscular strain on the right latissimus dorsi muscle 
 
            (exhibit I).  The location of this muscle is in the mid to 
 
            upper back.  As claimant's treatment continued on December 
 
            4, 1987, J. P. Tiedeman, M.D., diagnosed that claimant had a 
 
            low grade muscle strain of the dorsolumbar muscle area (ex. 
 
            J).  On December 14, 1987, John H. Roberts, M.D., diagnosed 
 
            subscapular bursitis (ex. L).  On December 24, 1987, D. J. 
 
            Greco, M.D., assessed follow-up thoracic strain (ex. M).  
 
            When John A. Walck, M.D., of the Back Rehabilitation Clinics 
 
            of America, Inc., evaluated claimant on March 22, 1988, he 
 
            assessed strain of the medial scapular musculature - 
 
            probably includes rhomboid major (ex. S).  Dr. Liudahl, who 
 
            became claimant's primary treating physician, diagnosed 
 
            chronic thoracic and cervical paraspinus muscle strain in 
 
            addition to trapezius muscle strain (trapezius syndrome) 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            when he first examined claimant on December 22, 1987 (ex. A, 
 
            page 1).  The Mayo Clinic, on July 18, 1988, indicated that 
 
            claimant had suffered cervical and thoracic strain with 
 
            associated tension myalgias (ex. C, p. 13).
 
            
 
                 The supervisors incident investigation report stated 
 
            that the elevator did not stop level with the landing and 
 
            claimant lifted the housekeeping cart from the elevator onto 
 
            the landing and pulled muscles in her back (ex. U, p. 42).
 
            
 
                 Consequently, it is manifestly clear that employer 
 
            recorded a back injury from the outset and claimant never 
 
            has been treated for an arm injury by any of the doctors who 
 
            have examined her.
 
            
 
                 Wherefore, it is determined that claimant has sustained 
 
            an injury to the right shoulder, neck and upper back which 
 
            is an injury to the body as a whole.  Iowa Code section 
 
            85.34(2)(u).
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that all permanent disability which 
 
            claimant has sustained was caused by this injury.  
 
            
 
                 It is further determined that claimant has sustained a 
 
            20 percent industrial disability to the body as a whole and 
 
            is entitled to 100 weeks of workers' compensation permanent 
 
            partial disability benefits commencing on September 1, 1988, 
 
            when Dr. Liudahl stated, "...that the patient has reached 
 
            maximal medical benefit." (exhibit A, page 8).  
 
            
 
                 Claimant started to work for employer on February 10, 
 
            1986, after passing a physical examination administered on 
 
            February 4, 1986 (ex. U, p. 10).  Claimant's medical record 
 
            with employer shows no shoulder, neck or back injuries until 
 
            this injury which occurred on November 21, 1987 (ex. U, p. 
 
            5).  
 
            
 
                 This corroborates claimant's testimony that she enjoyed 
 
            good health when she accepted this job except for being 
 
            overweight.  The Mayo Clinic recorded that claimant is five 
 
            foot three inches tall and weighed 248 pounds (ex. C, p. 
 
            12).  
 
            
 
                 After a lengthy course of treatment which included pain 
 
            medications, muscle relaxants, cortisone injections, a TENS 
 
            unit, heat, massage, ultrasound, an EMG which showed no 
 
            indication of cervical radiculopathy,and an evaluation at 
 
            the Mayo Clinic, Dr. Liudahl dismissed claimant to return to 
 
            full activities with no restrictions, on September 1, 1988, 
 
            and determined that she had a 3 percent impairment of the 
 
            upper extremity for residual pain and weakness in this upper 
 
            extremity (ex. A, pp. 5 & 8-10).
 
            
 
                 Only plain x-rays were taken of claimant's injury and 
 
            all of them were within normal limits (ex. A, p. 1; ex. B, 
 
            p. 3; ex. C, pp. 6 & 29; ex. J, p. 4; ex. S, p. 1).
 
            
 
                 Defendants retained the services of Gail F. Leonhardt, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            M.S., C.R.C., C.I.R.S., a vocational rehabilitation 
 
            consultant.  Leonhardt did not interview claimant, but did 
 
            perform an extensive study of the duties of claimant's job 
 
            as a housekeeper for employer (ex. T, pp. 1-7).  Among other 
 
            things, he found that the job involved lifting up to 25 
 
            pounds (ex. T, p. 2), which placed this job in the medium 
 
            strength category as defined in the Dictionary of 
 
            Occupational Titles.  The medium classification means 
 
            lifting 50 pounds maximum with frequent lifting and/or 
 
            carrying of objects weighing up to 25 pounds (ex. T, p. 3).  
 
            At the hearing, Leonhardt testified that he met with Dr. 
 
            Liudahl on September 15, 1988, and discussed the particular 
 
            job in detail.  Leonhardt testified that Dr. Liudahl 
 
            endorsed it and indicated that those restrictions were far 
 
            below the workers capacity and were safely within her 
 
            limits.  In fact, she would be able to do more than that.  
 
            
 
                 Claimant testified that her housekeeping job required 
 
            her to lift the ends of beds which weighed 60 pounds and 
 
            hold it while she cleaned up the frames (tr. pp. 24 & 25).
 
            
 
                 Claimant was examined at the Mayo Clinic and tested 
 
            extensively between July 17, 1988 and July 22, 1988.  
 
            Sherwin Goldman, M.D., of the Mayo Clinic Impairment 
 
            Evaluation Center, stated that examination of the right 
 
            shoulder showed no definite areas of instability; range of 
 
            motion was complete and full and there was no definite 
 
            rotator cuff, biceps tenderness or disruption.  He did state 
 
            that Cybex testing disclosed low torque values, especially 
 
            on the right, and she was consistently weak in abduction and 
 
            extension with primarily some weakness in flexion and 
 
            extension.  Dr. Goldman stated, "A work tolerance screen 
 
            revealed a safe work level at the light category as defined 
 
            by the United States Department of Labor in the Dictionary 
 
            of Occupational Titles.  This would include occasional 
 
            lifting of up to 20 pounds with frequent lifting of up to 10 
 
            pounds." (ex. B, p. 3; ex. C, p. 14).  
 
            
 
                 Dr. Goldman concluded there was no indication for any 
 
            further investigative procedures, hospitalizations or 
 
            surgery.  He recommended further strengthening programs and 
 
            work hardening.  He said her condition at that time appeared 
 
            to be permanent and stationary, but there was no evidence of 
 
            any permanent physical impairment (ex. B, p. 3; ex. C, p. 
 
            14).  
 
            
 
                 It is difficult to understand how claimant is reduced 
 
            from an unlimited lifting and strength capacity to only 
 
            light lifting and strength capacity and to not have suffered 
 
            some permanent functional or physical impairment.
 
            
 
                 Dr. Liudahl, claimant's authorized and primary treating 
 
            physician, also disagreed with the fact that Dr. Goldman did 
 
            not give a permanent impairment rating (ex. a, p. 6).
 
            
 
                 Leonhardt conceded that the housekeeping job, which was 
 
            in the low end of the medium category of strength level, was 
 
            not within the light duty work category prescribed by Dr. 
 
            Goldman at the Mayo Clinic Impairment Evaluation Center (tr. 
 
            p. 90).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Employer went to great lengths after the injury on 
 
            October 21, 1987, to try to accommodate claimant's 
 
            limitations.  Employer went so far as to follow Dr. 
 
            Liudahl's recommendation that claimant work one hour a day 
 
            for one week, two hours a day for a second week and so on 
 
            until she was able to work a full eight hours a day.  
 
            Claimant testified that she did this for two hours one day, 
 
            "And then after the two hours I couldn't hardly move, the 
 
            pain was so bad; so I went back to outpatients and saw Dr. 
 
            Tiedeman and --" (tr. p. 40).  September 12, 1988, was the 
 
            last day the claimant worked (tr. p. 41).
 
            
 
                 In this case, the opinion of Dr. Goldman, to the effect 
 
            that claimant is limited to light duty work, is preferred 
 
            over the opinion of Dr. Liudahl who believed that claimant 
 
            could perform her old job which entailed at least medium 
 
            level work.  Rockwell Graphics Systems, Inc. v. Prince, 366 
 
            N.W.2d 187, 192 (Iowa 1985).  Both physicians were retained 
 
            by employer, but the Mayo Clinic physician at the Impairment 
 
            Evaluation Center would appear to have the greater expertise 
 
            and a more detached and independent view.  Furthermore, Dr. 
 
            Goldman did perform a work tolerance screen.  Reiland v. 
 
            Palco, Inc., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 56 (1975);  Dickey v. ITT Continental Baking 
 
            Co., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 89 (1979).  
 
            
 
                 Thus, even though Dr. Liudahl's impairment rating at 3 
 
            percent of the right upper extremity, which converts to 2 
 
            percent of the whole person, Guides, table 3 page 20, is not 
 
            great; and even though Dr. Goldman did not find that 
 
            claimant's impairment was ratable; nevertheless, claimant is 
 
            foreclosed from performing her employment as a housekeeper 
 
            with this employer and probably most of her former 
 
            employments of motel maid, child care person (nanny), 
 
            hospital laundry worker, dietary cook, her self-employment 
 
            in the recycling business where she loaded and unloaded 
 
            trucks, and a mail handler lifting mail bags weighing 35 and 
 
            40 pounds overhead (ex. U, p. 9; tr. pp. 16-23).  Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (Appeal Decision January 
 
            30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).  
 
            
 
                 Previously, there were no limitations on claimant's 
 
            strength and lifting ability.  She could lift over 50 pounds 
 
            which would be the heavy work strength level.  Now she is 
 
            limited to only occasional lifting of up to 20 pounds and 
 
            frequently lifting of up to 10 pounds (ex. B, p. 3; ex. C, 
 
            p. 14).  This results in a significant loss of earning 
 
            capacity in the competitive employment market, if, and when 
 
            claimant should try to reenter the competitive employment 
 
            market again.  
 
            
 
                 Maynard Grove, claimant's husband of 17 years, 
 
            testified that claimant can no longer vacuum, do dishes, 
 
            scrub floors.  She can no longer play volleyball and 
 
            softball on the league team for employer once a week as she 
 
            formerly did.  He stated that she cannot lift her right arm 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            above shoulder level to get in the cupboard at home.  She is 
 
            in constant pain, depressed and goes to bed early because of 
 
            the pain (tr. pp. 67-69).  
 
            
 
                 Treating physicians and employer contemplated sending 
 
            claimant to a pain clinic on one or two occasions, but never 
 
            did so (tr. pp. 39, 47 & 48).  Claimant testified that she 
 
            became depressed and contacted Siouxland Mental Health, but 
 
            got no help.  She also saw a psychiatrist on her second trip 
 
            to Mayo Clinic in January of 1990 and he indicated that he 
 
            would call Dr. Liudahl about prescribing an anti-depressant 
 
            for claimant (tr. pp. 51 & 65; ex. C, p. 27).  
 
            
 
                 Claimant, born October 8, 1948, was 38 years old at the 
 
            time of the injury; 41 years old at the time of the hearing; 
 
            and 42 years old at the time of this decision.  Since this 
 
            injury occurred at the peak of claimant's earnings career, 
 
            her industrial disability is greater than it would be for a 
 
            younger or older person.  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Walton v. B & H Tank Corp., II 
 
            Iowa Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 
 
            (Appeal Decision 1989).  
 
            
 
                 Claimant has a high school education and, therefore, 
 
            meets the minimum standard for finding other employment in 
 
            the competitive employment market.  Claimant is young enough 
 
            to be retrained if she is open to vocational rehabilitation 
 
            and retraining.  Employer did not provide claimant with any 
 
            private vocational rehabilitation assistance, but this is 
 
            understandable because it was Rita Murphy's understanding 
 
            from the company physician, Dr. Liudahl, that claimant could 
 
            return to her job as a housekeeper.  Claimant attempted to 
 
            obtain vocational rehabilitation from the Iowa State 
 
            Vocational Rehabilitation Service, but was told they could 
 
            not help her because of Dr. Luidahl's report, presumably the 
 
            fact that she could return to work without any restrictions 
 
            whatsoever, and that she only sustained a 3 percent 
 
            impairment to the right upper extremity (tr. p. 89).  
 
            
 
                 Defendants did make every effort to modify claimant's 
 
            work and make accommodations for her prior to when she left 
 
            the employment in September of 1988.  She was notified of a 
 
            switchboard operator job and an admitting clerk job, but she 
 
            was not selected for either one of these two positions.  She 
 
            was notified of other positions, but did not respond (tr. 
 
            pp. 77 & 78).  Claimant testified she did not apply for the 
 
            dietary cart job which was offered to her because she was 
 
            not able to pull the cart (tr. p. 42).  
 
            
 
                 Claimant's motivation to work is seriously questioned 
 
            because she has not sought any work since she last worked 
 
            for employer.  She is supported by her husband who has a 
 
            full-time job.  She has two teenaged children who need her 
 
            attention.  Since claimant has made no attempt to find any 
 
            work of any kind, it deprives the industrial commissioner of 
 
            any hard facts to determine what claimant can or cannot do 
 
            within the boundaries of her disability of being restricted 
 
            to light duty work.  Schofield v. Iowa Beef Processors, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Inc., II Iowa Industrial Commissioner Report 334, 336 
 
            (1981).
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit by a showing of some attempt to find work.  
 
            Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 
 
            144 (Appeal Decision 1981); Beintema v. Sioux City 
 
            Engineering Co., II Iowa Industrial Commissioner Report 24 
 
            (1981); Cory v. Northwestern States Portland Cement Company, 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            104 (1976).
 
            
 
                 Employers are responsible for the reduction in earning 
 
            capacity caused by the injury.  They are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).  
 
            
 
                 Wherefore, based upon based upon: (1) a permanent 
 
            impairment rating of 2 percent to the body as a whole; (2) 
 
            the fact that claimant's strength work level is reduced from 
 
            the heavy category to the light category; (3) that 
 
            claimant's disability occurs at the peak of her earnings 
 
            career; (4) that she is foreclosed from this employment and 
 
            most of her past employments; (5) based upon all of the 
 
            evidence presented; and (6) all of the factors used to 
 
            determine industrial disability, Christensen v. Hagen, Inc., 
 
            vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (Appeal Decision March 26, 1985); Peterson v. 
 
            Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654, 658 (Appeal Decision 
 
            February 28, 1985); and relying on agency expertise, [Iowa 
 
            Administrative Procedure Act 17A.14(5)]; it is determined 
 
            that claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of workers' compensation benefits at the stipulated 
 
            rate of $133.07 per week.
 
            
 
                                        
 
            
 
                                 medical benefits
 
            
 
                 It is determined that claimant is entitled to $1,779.60 
 
            in medical and medical transportation expenses for the trip 
 
            to Mayo Clinic on July 17, 1988.  These expenses are 
 
            itemized on claimant's exhibit 2 and constitute the charges 
 
            of the clinic, $1,471.40; the round trip mileage of $123.20; 
 
            five nights lodging at $135 and meals for five days in the 
 
            amount of $50.  Both parties agreed that claimant was sent 
 
            to the clinic at this time pursuant to Dr. Liudahl's 
 
            referral (ex. A, p. 4).
 
            
 
                 It is determined that claimant is not entitled to $971 
 
            in medical mileage and transportation expenses for the 
 
            second trip to the Mayo Clinic on January 22 through January 
 
            24, 1990; for the reason that claimant testified that no one 
 
            from employer or insurance carrier authorized this trip (tr. 
 
            p. 61).  Nor did an authorized physician refer claimant to 
 
            Mayo Clinic on this occasion.  Claimant's attorney 
 
            acknowledged that this trip was not authorized by employer 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            or insurance carrier (ex. V).
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of November 21, 1987, was an injury to 
 
            the body as a whole and that claimant is entitled to 
 
            industrial disability.  Iowa Code section 85.34(2)(u).
 
            
 
                 That the injury was the cause of additional permanent 
 
            disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 
 
            18 N.W.2d 607 (1945).  
 
            
 
                 That claimant has sustained an industrial disability of 
 
            20 percent to the body as a whole.  Diederich v. Tri-City R. 
 
            Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963).
 
            
 
                 That claimant is entitled to 100 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant is entitled to $1,779.60 in medical 
 
            expenses for the first trip to the Mayo Clinic.
 
            
 
                 That claimant is not entitled to $971 in medical 
 
            expenses for the second trip to Mayo Clinic.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred thirty-three and 07/100 dollars ($133.07) per week 
 
            for a twenty (20) percent industrial disability to the body 
 
            as a whole in the total amount of thirteen thousand three 
 
            hundred seven dollars ($13,307) commencing on September 1, 
 
            1988.
 
            
 
                 That defendant is entitled to a credit for seven and 
 
            one-half (7 1/2) weeks of permanent partial disability 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            one hundred thirty-three and 07/100 dollars ($133.07) per 
 
            week in the total amount of nine hundred ninety-eight and 
 
            03/100 dollars ($998.03) as stipulated to by the parties.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendant pay to claimant or the provider of 
 
            medical services one thousand seven hundred seventy-nine and 
 
            60/100 dollars ($1,779.60) in medical expenses as itemized 
 
            above.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 That the costs of this action including the cost of the 
 
            attendance of the court reporter at hearing and the 
 
            transcript are charged to defendant pursuant to rule 343 IAC 
 
            4.33 and Iowa Code section 86.19(1).
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. William Miller
 
            Attorney at Law
 
            PO Box 3107
 
            504 9th St
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Matthew A. Grotnes
 
            Mr. Frank Harrison
 
            Attorneys at Law
 
            2700 Grand Ave. STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1803.1 51108.50 51401 51402.40 
 
                                          51803 52902 51803 51402.60 
 
                                          52501 52700
 
                                          Filed August 23, 1991
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN GROVE,                  :
 
                                          :
 
                 Claimant,                :       File No. 870388
 
                                          :
 
            vs.                           :
 
                                          :     A R B I T R A T I O N
 
            MARIAN HEALTH CENTER,         :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            1803.1
 
            The fact that a physician rates a body as a whole injury in 
 
            terms of the upper extremity does not convert a body as a 
 
            whole injury into a scheduled member injury.  Iowa Code 
 
            section 85.34(2)(m) provides benefits for an injury to any 
 
            arm.  Section 3.1 of the Guides to the Evaluation of 
 
            Permanent Impairment provides a method to measure impairment 
 
            to the upper extremity and the upper extremity includes the 
 
            shoulder.  Thus, an injury to the upper extremity is not 
 
            equated to an arm injury.  Physicians typically rate 
 
            shoulder injuries in terms of the right upper extremity, but 
 
            this does not constitute a shoulder injury as an injury to 
 
            the arm or convert a shoulder injury into an injury to the 
 
            arm.
 
            
 
            51108.50 51401 51402.40 51803 52902
 
            The evidence established that his injury was the cause of 
 
            all of claimant's permanent disability.  There was no 
 
            evidence to the contrary.  Claimant passed a preemployment 
 
            physical examination, her health history showed no prior 
 
            neck, shoulder or back problems.  She and her husband 
 
            testified that she had not had any prior problems.  The 
 
            entire history begins with this injury.  No other cause was 
 
            suggested by any medical or nonmedical evidence.
 
            
 
            51803
 
            Claimant was age 38, had a high school education and average 
 
            intelligence sufficient for retraining or vocational 
 
            rehabilitation.  Treating physician awarded 3 percent 
 
            impairment of the right upper extremity which converts to 2 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            percent of the body as a whole.  He said she could do medium 
 
            work and perform her old job as a housekeeper.
 
            Mayo Clinic physician awarded no impairment rating, but said 
 
            claimant was only capable of light work based on their 
 
            performance screening at the impairment evaluation center.  
 
            A zero impairment rating was questioned if claimant was 
 
            reduced from an unlimited strength and lifting capability to 
 
            the light capability.  Claimant's local treating physician 
 
            disagreed with the zero rating too.  Defendant's vocational 
 
            rehabilitation consultant conceded that claimant's work as a 
 
            housekeeper was in excess of the light lifting and strength 
 
            determination by the Mayo Clinic.  It was determined that 
 
            claimant was foreclosed from housekeeping work and all of 
 
            her past employments which were of a physical nature and 
 
            required lifting over 20 pounds.
 
            Claimant's motivation to work was questioned.  She did not 
 
            appear to cooperate with exceptional efforts made by 
 
            employer to accommodate her.  She was supported by her 
 
            husband of 17 years who had a full-time job.  She had 
 
            teenaged children at home.  She did not actively seek 
 
            employment after she left work after this injury.
 
            Only plain x-rays were taken and all were normal.  No 
 
            surgery was performed or considered.  A pain clinic was 
 
            considered, but never offered to claimant.
 
            Claimant was awarded 20 percent industrial disability.
 
            
 
            51402.60 52501 52700
 
            Claimant was awarded medical expenses and travel expenses 
 
            for the first trip to the Mayo Clinic which all parties 
 
            agreed was recommended by claimant's authorized treating 
 
            physician.  Claimant showed no authority for a second trip 
 
            to the Mayo Clinic and these expenses were denied.  
 
            Claimant's attorney admitted they were unauthorized.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALLEN WANDER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 870427
 
            CULLIGAN WATER CONDITIONING,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed April 6, 1989.  Claimant sustained a work 
 
            injury to his back when he missed a step while carrying a 
 
            bag of salt down stairs in the course of his duties as a 
 
            route serviceman.  He now seeks benefits under the Iowa 
 
            Workers' Compensation Act from his employer, Culligan Water 
 
            Conditioning, and its insurance carrier, Liberty Mutual 
 
            Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Mason 
 
            City, Iowa, on March 27, 1990.  The record consists of 
 
            claimant's exhibits 1 through 26, defendants' exhibits A and 
 
            B and the testimony of claimant and Margaret Wander.
 
            
 
                                      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 Culligan Water 
 
            Conditioning ("Culligan") on November 25, 1987; that if 
 
            claimant sustained permanent disability resulting from the 
 
            injury, it is an industrial disability to the body as a 
 
            whole; that affirmative defenses are waived; that all 
 
            requested medical benefits (except mileage) have been or 
 
            will be paid by defendants; that prior to hearing, 
 
            defendants paid temporary total disability benefits at the 
 
            rate of $174.50 per week from November 27, 1987 through 
 
            October 17, 1988 and, per defendants' designation, permanent 
 
            partial disability benefits from October 18, 1988 through 
 
            the date of hearing (intending to continue the same through 
 
            April 19, 1990).
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused temporary or permanent disability; the 
 
            extent of claimant's entitlement to temporary disability; 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the extent and commencement date of claimant's entitlement 
 
            to permanent disability; the rate of compensation (although 
 
            it was stipulated that claimant was married and entitled to 
 
            four exemptions); taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was born on September 9, 1960 and was 29 years 
 
            old at the time of hearing.  He is a 1978 high school 
 
            graduate and, since the injury, has taken one-half year of 
 
            community college course work, earning B's and C's in basic 
 
            courses (there is no indication that defendants contributed 
 
            to educational expenses).  Claimant's demeanor and 
 
            educational history indicate that he is intellectually 
 
            capable of further education, and certainly of retraining in 
 
            various fields of enterprise.
 
            
 
                 After graduating from high school, claimant worked for 
 
            several months driving a gravel truck and doing some shovel 
 
            work which he considered to be medium in terms of exertional 
 
            requirements.  Thereafter, he worked for several years for a 
 
            manufacturing concern assembling farm equipment.  Claimant 
 
            considered this work heavy.  He then drove a gravel truck 
 
            for another concern for approximately one and one-half 
 
            years, worked on road construction for one week, and began 
 
            employment with Culligan in April, 1986.  He continued in 
 
            that employment as a route serviceman until his injury, but 
 
            has not worked since.  Claimant has applied for various jobs 
 
            since then with manufacturers, a delivery service, gas 
 
            stations, cleaning businesses and the like, but most of his 
 
            applications were in the two months prior to hearing, 
 
            suggesting that the hearing itself was a major factor 
 
            motivating his search for work.  As noted, claimant also 
 
            began an educational course in January, 1989 through the 
 
            Iowa Vocational Rehabilitation program.  He did not continue 
 
            with a fall semester or in 1990 since grant monies were 
 
            unavailable.
 
            
 
                 Claimant's position with Culligan involved delivering 
 
            salt, tanks and filters for home water conditioning systems 
 
            within a 50-mile radius of Mason City.  The work was fairly 
 
            heavy in that claimant frequently carried 75 pounds and 
 
            more, often down stairs to residential basements.
 
            
 
                 Claimant was paid on an hourly basis.  During the 14 
 
            weeks prior to the work injury (he was paid on a biweekly 
 
            basis, and it is impossible from the record submitted to 
 
            determine his earnings for 13 weeks) he earned $3,526.25, or 
 
            an average gross weekly wage of $251.88.
 
            
 
                 Claimant sustained an injury on November 25, 1987 while 
 
            carrying salt down a flight of steps.  He missed a step and 
 
            "drove" his left foot into the foot in a stiff-legged 
 
            fashion.  Claimant experienced a "pop" in the middle of his 
 
            back (approximately at the belt line) and suffered pain 
 
            radiating down both legs.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Prior to the work injury, claimant suffered some bouts 
 
            of back pain, particularly stiffness after riding a 
 
            motorcycle in 1980.  Claimant sought chiropractic care on 
 
            that occasion, and symptoms resolved after some 8-10 
 
            treatments by Richard Haas, D.C.  Based on a May 29, 1987 
 
            evaluation, Dr. Haas reported an impression of:  (1) 
 
            paraspinal myofascitis secondary to spinal strain and (2) 
 
            spinal fixations and subluxations producing abnormal spinal 
 
            joint movement, spinal instability, spinal joint irritation, 
 
            and paraspinal hypertonus.
 
            
 
                 Claimant's primary treating physician, Sterling J. 
 
            Laaveg, M.D., is of the view that claimant had preexisting 
 
            degenerative disc disease and arthritis which was aggravated 
 
            by the work injury.  In any event, claimant had missed no 
 
            work prior to the work injury because of his back problems 
 
            and labored under no preexisting medical restrictions 
 
            related to the back.  Claimant underwent a physical 
 
            examination by his family physician, Samuel R. Hunt, M.D., 
 
            only a month before the work injury.  Dr. Hunt's report of 
 
            October 23, 1987 made no mention of any back problems 
 
            whatsoever.
 
            
 
                 Following the injury, claimant was seen on the same day 
 
            by James K. Coddington, M.D., an associate of Dr. Hunt.  Dr. 
 
            Coddington's initial impression was of muscular strain and 
 
            claimant was treated with pain medications and warm packs.  
 
            Shortly thereafter, he was treated with anti-inflammatory 
 
            and muscle relaxant medications and, in early December, was 
 
            started on physical therapy.  Claimant continued to be 
 
            followed by that office until January 5, 1988, following 
 
            which he was referred to Dr. Laaveg, an orthopaedic surgeon.
 
            
 
                 As early as April 21, 1986, Dr. Hunt's office (notes by 
 
            Paul H. Gordon, M.D.) indicated an impression of possible 
 
            very minimal disc narrowing at L4-5 in an otherwise negative 
 
            lumbar spine view.  No other back complaints appear until 
 
            the date of the work injury, and chart notes going back to 
 
            May 9, 1984 show no other back pain complaints.  On 
 
            September 9, 1988, Dr. Hunt noted that he had not seen 
 
            claimant since referral to Dr. Laaveg and was unable to 
 
            determine the length of disability or the present severity 
 
            of his impairment; in a letter dated November 17, 1988, he 
 
            wrote of his opinion that claimant's back pain was directly 
 
            related to the subject work injury.
 
            
 
                 Dr. Laaveg first saw claimant on January 7, 1988 and 
 
            charted an initial impression of low back pain with 
 
            degenerative disc disease at L4-5 and L5-S1 mild to moderate 
 
            with recent exacerbation due to a lumbosacral sprain, work 
 
            related.  Dr. Laaveg continued treating claimant through 
 
            1988, last seeing him on November 21 of that year.  Recovery 
 
            was slow and the possibility of a lumbosacral fusion was 
 
            discussed on several occasions, although not performed.  On 
 
            December 22, 1988, Dr. Laaveg wrote that claimant continued 
 
            to have intermittent low back pain and that an MRI scan 
 
            showed a minimal bulging central disc at L5-S1 and that 
 
            evidence of decreased water content at L4-5 and L5-S1 
 
            indicated degenerative disc disease at those levels.  He 
 
            further noted that a lumbosacral fusion should be 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            considered, but only if body casting failed to relieve 
 
            claimant's pain.  Dr. Laaveg further noted that claimant had 
 
            reached maximum healing on a conservative management 
 
            program, but that claimant might require a lumbosacral 
 
            fusion at a later date.
 
            
 
                 Dr. Laaveg saw claimant again on October 24, 1989.  He 
 
            continued to have pain and discomfort in the back with 
 
            activity or sitting, but showed no neurological symptoms of 
 
            any major degree.  Claimant was referred at that time to an 
 
            occupational medicine work hardening program.  Noting in his 
 
            chart that claimant had a lumbosacral spine injury 
 
            exacerbating previous L4-5 and L5-S1 degenerative disc 
 
            disease, the doctor wrote that claimant had a physical 
 
            impairment rating of 12 percent of the body as a whole, 
 
            two-thirds of which was due to the injury and one-third 
 
            being due to the underlying condition.
 
            
 
                 Following the work hardening program, Dr. Laaveg 
 
            imposed final medical restrictions on January 9, 1990:  
 
            claimant was released to lift 85-90 pounds occasionally, 
 
            frequently lift up to 45 pounds, repetitiously lift up to 
 
            20-25 pounds, and should avoid repetitious bending and 
 
            twisting for long periods or prolonged standing or sitting 
 
            without being able to change position every 60-90 minutes.
 
            
 
                 Claimant was also seen for evaluation by David W. Beck, 
 
            M.D., apparently at defendants' request.  Dr. Beck wrote on 
 
            October 18, 1988 that claimant had low back pain without any 
 
            radicular symptoms and that he would recommend job 
 
            retraining, as a heavy lifting job would be out of the 
 
            question due to persistent back pain.  He believed claimant 
 
            at that point had probably healed as much as he would from 
 
            the injury.  Dr. Beck stated that he was unimpressed with 
 
            the 1980 motorcycle incident and that he believed claimant's 
 
            problems all stemmed from the work injury and that he did 
 
            not have degenerative disc disease to any extent greater 
 
            than normal for his age.  Based on low back pain with no 
 
            neurological deficit, Dr. Beck rated claimant as having 
 
            sustained an eight percent body as a whole impairment.
 
            
 
                 Claimant was also seen for evaluation for John R. 
 
            Walker, M.D.  Dr. Walker wrote on March 15, 1989 that 
 
            claimant had been examined and that he had taken x-ray 
 
            films.  He found claimant to suffer from an extremely 
 
            painful lumbosacral sprain at L5-S1.  He believed that in 
 
            the future claimant would require fusion at L5-S1, and that 
 
            possibly L4-5 would become symptomatic and be included.  Dr. 
 
            Walker felt that if claimant did undergo a successful 
 
            fusion, he would predictably end up with a permanent 
 
            impairment amounting to 20 percent of the body as a whole.  
 
            He agreed with some preliminary medical restrictions imposed 
 
            by Dr. Laaveg (not carrying over 50 pounds, lifting over 40 
 
            pounds from the floor, avoiding repetitious bending or 
 
            twisting or prolonged standing or sitting of over two hours' 
 
            duration) and noted that claimant "certainly" could not do 
 
            "any" lifting, twisting, bending, crawling or climbing 
 
            ladders, etc.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant currently complains of constant low back pain 
 
            on both sides.  He states that he is now unable to do heavy 
 
            work, bicycling, extensive walking or weight lifting.  He 
 
            considered his condition to be about the same as was the 
 
            case in fall, 1988.  His mother, Margaret Wander, testified 
 
            that claimant now becomes stiff, walks with an odd gait, 
 
            complains of back pain, and is unable to lift weights or do 
 
            physical work.
 
            
 
                 Claimant has accrued unreimbursed mileage of 180 miles 
 
            for a round trip to Dr. Walker, 4 miles for a round trip to 
 
            Dr. Beck, 48 miles for round trips to Dr. Laaveg, 132 miles 
 
            for occupational therapy and physical therapy prescribed by 
 
            Dr. Laaveg and 360 miles for a trip to Rochester, Minnesota 
 
            for a prescribed magnetic resonance imaging study.  Total 
 
            unreimbursed mileage is thus 724 miles.
 
            
 
                                conclusions of law
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of his employment as per 
 
            his allegation.  They dispute whether the work injury caused 
 
            either temporary or permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            25, 1987 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The evidence is absolutely overwhelming that the work 
 
            injury caused both temporary and permanent disability.  
 
            Prior to the work injury, claimant did not miss work or 
 
            labor under medical restrictions relating to his back.  
 
            Since the very day of his injury, he has not worked and now 
 
            has medical restrictions.  Medical opinion unanimously 
 
            favors a causal nexus between the stipulated injury and both 
 
            temporary and permanent impairment.  Claimant has clearly 
 
            met his burden of proof on this issue.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant has never returned to work and was clearly not 
 
            medically capable of returning to substantially similar 
 
            employment through fall, 1988.
 
            
 
                 Defendants are of the view that his healing period 
 
            ended on October 18, 1988, when Dr. Beck found that he had 
 
            probably healed as much as he would from the injury.  
 
            Claimant is of the view that the healing period ended on 
 
            December 22, 1988, when Dr. Laaveg opined that he had 
 
            reached maximum healing.  Dr. Laaveg's December 22 opinion 
 
            was based upon claimant's condition at an examination on 
 
            November 21.  Prior to that, claimant had last been seen on 
 
            September 18.  Dr. Beck's opinion is dated between September 
 
            18 and November 21, and is not inconsistent with claimant 
 
            having reached maximum medical improvement prior to November 
 
            21.  It is held that claimant is entitled to healing period 
 
            benefits from the date of the injury through October 18, 
 
            1988, or exactly 47 weeks.
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Dr. Laaveg and Dr. Walker have imposed very different 
 
            medical restrictions (Dr. Walker's restrictions being based 
 
            upon the much more limiting restrictions Dr. Laaveg had 
 
            imposed on a temporary basis during the healing period).  As 
 
            the long-term treating physician most familiar with this 
 
            case and as a qualified orthopaedic surgeon, Dr. Laaveg's 
 
            views as to medical restrictions are more persuasive in 
 
            determining the impact on claimant's earning capacity.  As 
 
            claimant is a young man, his work history is somewhat 
 
            limited.  He has held positions requiring medium and heavy 
 
            exertion.  At least some of those jobs (gravel truck 
 
            driving) appear to be within Dr. Laaveg's restrictions.  
 
            Also, at least some factory assembly work would not be 
 
            barred by the restrictions.  Nonetheless, the repetitious 
 
            lifting restriction, the restrictions against repetitious 
 
            bending and twisting, and against prolonged standing or 
 
            sitting without changing position will surely bar claimant 
 
            from many such manufacturing positions.  In addition, the 
 
            fact that he has sustained a back injury causing such a 
 
            lengthy period of temporary disability will surely cause him 
 
            to be a less attractive potential employee in the eyes of at 
 
            least some employers.  Particularly is this so since he may 
 
            require future lumbosacral surgery at one or two levels, 
 
            which may potentially be seen as arising out of subsequent 
 
            employment if claimant's condition worsens.  Note also that 
 
            defendants have been unable to offer claimant continued 
 
            employment within his restrictions.
 
            
 
                 On the other hand, even though defendants are not 
 
            entitled to take credit for claimant's additional education 
 
            since they did not financially contribute, it is clear that 
 
            he is of an age and apparent education suitable for 
 
            retraining and further education.
 
            
 
                 Considering these factors in specific and the record in 
 
            general, it is held that claimant has sustained an 
 
            industrial disability equivalent to 25 percent of the body 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            as a whole, or 125 weeks.  This determination specifically 
 
            assumes that claimant will not be required to undergo 
 
            surgical treatment to his back, especially lumbosacral 
 
            fusion.
 
            
 
                 The parties dispute the rate at which claimant should 
 
            be compensated.  Claimant points to the first unnumbered 
 
            paragraph of Iowa Code section 85.36, and particularly 
 
            argues that weekly earnings are determined by "customary 
 
            hours for the full pay period in which the employee was 
 
            injured."  On the theory that claimant's customary hours 
 
            were 40 per week, he argues that his hourly wage should be 
 
            multiplied by 40 to determine the appropriate gross weekly 
 
            earnings.
 
            
 
                 The flaw in this argument is that claimant worked a 
 
            full 80 hours during only one of the biweekly pay periods 
 
            during the 14 weeks completed immediately prior to the work 
 
            injury.  The first unnumbered paragraph of 85.36 continues 
 
            to specify that the customary hours "as regularly required 
 
            by the employee's employer" are to be determined "as follows 
 
            and then rounded to the nearest dollar:"
 
            
 
                 * * *
 
            
 
                 6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 Clearly then, claimant's "customary hours" are not 
 
            determined by the maximum which he might be required to 
 
            work, but by the hours he actually worked in the preceding 
 
            thirteen weeks in the case of an hourly employee.  As noted, 
 
            the record does not permit a determination of claimant's 
 
            earnings during the preceding thirteen weeks because pay 
 
            periods were biweekly and the most remote pay period is not 
 
            divided between the thirteenth and fourteenth weeks.  
 
            Therefore, it is appropriate to determine claimant's gross 
 
            weekly wages by dividing the preceding fourteen weeks' 
 
            earnings by fourteen, yielding a quotient of $251.88 per 
 
            week.  The Guide to Iowa Workers' Compensation Claim 
 
            Handling published by this office and effective July 1, 1987 
 
            reflects that a married worker entitled to four exemptions 
 
            who is so situated is entitled to a rate of $174.50.
 
            
 
                 Claimant's unreimbursed mileage was accrued for trips 
 
            to the treating physician, trips to physical or occupational 
 
            therapy prescribed by the treating physician (and reasonable 
 
            and necessary to treatment), a trip to Minnesota for 
 
            magnetic resonance imaging tests causally related to the 
 
            work injury, a trip to Dr. Walker's office for an 
 
            independent medical examination (the prehearing order shows 
 
            that Iowa Code section 85.39 is an issue for hearing) and a 
 
            trip to Dr. Beck at defendants' behest.  Claimant is 
 
            entitled to be reimbursed for 724 miles.  At $.21 per mile, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            he shall be awarded $152.04.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant forty-seven (47) 
 
            weeks of healing period benefits commencing November 25, 
 
            1987 at the rate of one hundred seventy-four and 50/100 
 
            dollars ($174.50) per week and totalling eight thousand two 
 
            hundred one and 50/100 dollars ($8,201.50).
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits commencing October 19, 1988 at the rate of one 
 
            hundred seventy-four and 50/100 dollars ($174.50) per week 
 
            and totalling twenty-one thousand eight hundred twelve and 
 
            50/100 dollars ($21,812.50).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall pay unto claimant mileage expenses 
 
            totalling one hundred fifty-two and 04/100 dollars 
 
            ($152.04).
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            214 North Adams
 
            P.O. Box 679
 
            Mason City, Iowa  50401
 
            
 
            Mr. Kevin R. Rogers
 
            Mr. Jeffrey J. Greenwood
 
            Attorneys at Law
 
            528 West Fourth Street
 
            P.O. Box 1200
 
            Waterloo, Iowa  50704
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed December 5, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ALLEN WANDER,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 870427
 
            CULLIGAN WATER CONDITIONING,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Twenty-nine-year-old high school graduate with medium and 
 
            heavy work history awarded 25 percent permanent partial 
 
            disability following back injury.  Defendants did not offer 
 
            continuing employment and he had restrictions against 
 
            lifting 85-90 pounds occasionally, 45 pounds frequently, 
 
            20-25 pounds repetitiously, against repetitious bending and 
 
            twisting and against prolonged standing or sitting.