BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            ROY VAN DRASKA, JR.,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 874804
 
            SAM BERMAN AND SONS,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 On August 25, 1988, Roy Van Draska, Jr., (claimant) 
 
            filed a petition for arbitration as a result of an injury to 
 
            claimant's back occurring on December 18, 1987.  Sam Berman 
 
            & Son (Berman) was identified as employer and Allied 
 
            Insurance Co. (Allied) was identified as the workers' 
 
            compensation insurer for Berman (collectively defendants).  
 
            On August 13, 1990, the first portion of this dispute came 
 
            on for hearing in Ottumwa, Iowa.  On September 7, 1990, 
 
            Deputy Industrial Commissioner Walter McManus issued his 
 
            decision that claimant was entitled to an award of 25 
 
            percent industrial disability benefits resulting from the 
 
            injury claimant suffered on December 18, 1987.  At the time 
 
            of that hearing, claimant bifurcated the issue of penalties 
 
            and an additional award for failure to supply notice of the 
 
            termination of benefits pursuant to Iowa Code section 86.13 
 
            (1991).  
 
            
 
                 On April 22, 1991, the issues regarding the penalty and 
 
            the additional benefits came on for hearing in Des Moines, 
 
            Iowa.  The parties appeared as follows:  the claimant in 
 
            person and by his counsel Larry Wilson and Donald Beattie of 
 
            Altoona, Iowa and Berman and Allied by their counsel Jeff 
 
            Margolin and Marvin Duckworth of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, and Holly 
 
            Swartzbaug.  
 
            
 
                 2.  Joint exhibit W.
 
            
 
                 Additionally, official notice of the agency file was 
 
            taken along with the exhibits that had been previously 
 
            submitted at the time of the first hearing in this matter.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                               PRELIMINARY MATTERS
 
            
 
                 1.  The findings of fact and conclusions of law made by 
 
            Deputy McManus in his decision of September 7, 1990, are 
 
            incorporated herein as if fully set out in this decision.  
 
            
 
                 2.  In the September 7, 1990 decision, Deputy McManus 
 
            awarded claimant healing period benefits from June 10, 1988 
 
            until the date claimant's primary treating physician, Ronald 
 
            R. Reschly, M.D., indicated that claimant had reached 
 
            maximum medical improvement, August 18, 1988.    
 
            
 
 
 
                                  ISSUES   
 
 
 
                 The issues for resolution are as follows:
 
            
 
                 1.  Whether claimant is entitled to a penalty for a 
 
            delay in payments pursuant to Iowa Code section 86.13 
 
            (1991).
 
            
 
                 2.  Whether claimant is entitled to further benefits 
 
            for failure by defendants to give a 30 day notice of 
 
            termination of benefits as required by Iowa Code section 
 
            86.13 (1991) and Auxier v. Woodward State Hospital and 
 
            School, 266 N.W.2d 139 (Iowa 1978).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence including a 
 
            review of the evidence and decision already on file in this 
 
            dispute, and the arguments of counsel, the undersigned makes 
 
            the following findings of fact and conclusions of law.
 
            
 
                 1.  After claimant reported his injury to Berman, 
 
            defendants commenced payment of healing period benefits(1) on 
 
            December 28, 1987 at the rate of $149.60 per week.  
 
            Temporary total disability payments continued until claimant 
 
            returned to work on January 28, 1988.  Claimant was off work 
 
            again and receiving temporary total disability payments from 
 
            February 18, 1988 until May 2, 1988.  On May 2, 1988, 
 
            claimant returned to work to perform light duty work.  
 
            Claimant worked every other day from May 10, 1988 until June 
 
            10, 1988.  At that point claimant voluntarily left work and 
 
            did not try to return until after he had been released from 
 
            medical care by Ronald R. Reschly, M.D., in September of 
 
            1988.  Defendants paid claimant temporary partial disability 
 
            benefits from May 2, 1988 until June 9, 1988.  
 
            
 
                 2.  The medical records from Dr. Reschly do not 
 
            indicate Dr. Reschly withdrew claimant's release to return 
 
            to work until an entry in office notes dated July 11, 1988.  
 
            Claimant was kept off work due to pain in his back.
 
            (1).  These benefits have changed character as a result of 
 
            the finding of entitlement to permanent partial disability 
 
            payments found by the decision of September 7,1990.  At the 
 
            time of the payment of these benefits, defendants were 
 
            paying temporary total disability (TTD) benefits.  Agency 
 
            precedent has long viewed TTD payments and healing period 
 
            benefits as two sides of the same coin.  The true character 
 
            of these benefits is unknown until permanency is 
 
            established.  These payments have the same characteristics 
 
            and the agency has determined that the provisions should be 
 
            interpreted accordingly.  See, Peterson v. John Morrell & 
 
            Co., File Nos. 906408, 933308, Slip op. (Iowa Ind. Comm'r 
 
            Arb. May 21, 1991).  For the purpose of this decision the 
 
            terms healing period and temporarty total disability will be 
 
            used interchangeably.
 
            
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 3.  At the time claimant left his employment on June 
 
            10, 1988, Berman had light duty work available for claimant 
 
            to perform within his restrictions.  Berman believed that it 
 
            had met claimant's restrictions by offering part time work.
 
            
 
                 4.  In a report prepared for Allied by Dr. Reschly on 
 
            July 18, 1988, he indicated that claimant had been taken off 
 
            work.  The report gave a diagnosis of claimant's condition 
 
            as low back pain with a bulging disc at L4-5.  Dr. Reschly 
 
            further indicated that he did not know when claimant could 
 
            return to work or whether there would be any permanent 
 
            disability as a result of claimant's current condition.  
 
            This report did not indicate whether claimant's condition 
 
            had been caused by a work-related injury.
 
            
 
                 5.  When claimant left work voluntarily on June 10, 
 
            1988, without consultation with or direction from Dr. 
 
            Reschly, Allied discontinued making temporary partial 
 
            disability payments to claimant in reliance on Iowa Code 
 
            section 86.13 (1991).  Payments were discontinued because 
 
            light duty work within claimant's restrictions was available 
 
            and claimant refused to accept this work.  The more 
 
            compelling evidence from the first hearing and claimant's 
 
            testimony indicate that claimant left this employment in 
 
            order to care for his daughter over whom he had physical 
 
            custody for the summer.  At the time Allied discontinued 
 
            payment, it did not send claimant a notice advising that 
 
            claimant's payments would be terminated.  
 
            
 
                 6.  During the course of claimant's treatment, claimant 
 
            had a variety of tests to determine the source of the 
 
            ongoing pain in his low back.  Between January 15, 1988 and 
 
            August 1, 1988, claimant had x-ray studies, a CAT scan and 
 
            an MRI study.  Claimant declined to have a myelogram study.  
 
            The results of these tests were contradictory.  The x-ray 
 
            studies performed after the injury were negative.  The CAT 
 
            scan showed a probable ruptured disc centrally at L4-5.  The 
 
            MRI study showed a slight loss of disc space height at L4-5 
 
            with an apparent right sided disc herniation at L4-5.  
 
            Claimant refused to undergo a myelogram to confirm the disc 
 
            problem in his back.
 
            
 
                 7.  On August 1, 1988, Dr. Reschly's concluded that 
 
            claimant appeared to have a right sided herniation at L4-5.  
 
            He felt that this result was consistent with claimant's pain 
 
            complaints.  Claimant, at that point, declined to have 
 
            surgical intervention to repair the herniated disc.  
 
            Claimant was seen by Dr. Reschly again on August 18, 1988.  
 
            At that examination, Dr. Reschley advised claimant that he 
 
            had nothing more to offer him short of surgical 
 
            intervention.  Claimant was returned to the care of his 
 
            family physician.  He had reached maximum medical 
 
            improvement on that date.  Dr. Reschly rated claimant's 
 
            permanent functional impairment at 15 percent on September 
 
            13 1988 based on the AMA Guides to the Evaluation of 
 
            Permanent Impairment, edition unknown.
 
            
 
                 8.  Dr. Reschly did not at any time prior to December 
 
            6, 1988 indicate in any of the reports to Allied or in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            medical records that were served on defendants that 
 
            claimant's injury had been caused by the injury of December 
 
            18, 1987.  e.g., Ex. C, p. 15.  Moreover, Dr. Reschly was 
 
            not consistent in filling out the supplemental medical 
 
            reports supplied by Allied.  For example, on the reports 
 
            dated May 3, 1988, July 18, 1988, July 28, 1988, and August 
 
            23, 1988, Dr. Reschly indicated that it was unknown whether 
 
            claimant would have a permanent disability as a result of 
 
            the condition diagnosed in the report.  On the August 
 
            report, Dr. Reschly indicated that claimant would be unable 
 
            to return to his job but did not indicate at that time what 
 
            his permanent disability was.
 
            
 
                 9.  Claimant had significant history of back problems 
 
            prior to the incident of December 1987.  Most significantly, 
 
            claimant had a back injury in January of 1985.  
 
            
 
                 10. After the rating was given, claimant demanded 
 
            payment of permanent partial disability benefits to the 
 
            extent of the rating given by Dr. Reschly.  Defendants 
 
            refused, indicating that a question of casual connection 
 
            between the injury and disability was in dispute.  
 
            Defendants relied on claimant's extensive preexisting back 
 
            problems as the basis of their refusal to make payment.  
 
            Defendants wanted to depose claimant, have him evaluated by 
 
            their own doctor and wanted answers to interrogatories 
 
            before they would consider payment.  Claimant responded to 
 
            interrogatories on November 11, 1988.
 
            
 
                 11. On March 1, 1989, defendants advised claimant that 
 
            they had set up an appointment for claimant to see Thomas A. 
 
            Carlstrom, M.D., for an evaluation on July 27, 1989.  In the 
 
            meantime, defendants fixed a date in June to take claimant's 
 
            deposition.  Claimant failed to appear for the first 
 
            deposition.  Claimant's deposition was eventually taken on 
 
            July 17, 1989.  
 
            
 
                 12. After the evaluation of July 27, 1989, Dr. 
 
            Carlstrom issued a report to the defendants which indicated 
 
            that claimant had suffered an injury in 1985 that had 
 
            apparently smoldered during 1986 and came to light during 
 
            1987 and 1988.  Dr. Carlstrom was not given a complete 
 
            history by claimant regarding his prior back injuries.  Dr. 
 
            Carlstrom assigned an eight percent functional impairment to 
 
            claimant's back.  Based on this evaluation, defendants 
 
            continued to refuse to pay permanent partial disability 
 
            benefits to claimant on the ground that the disability was 
 
            caused by a 1985 incident rather that the 1987 incident.  
 
            
 
                 13. On September 6, 1989, Dr. Carlstrom wrote a letter 
 
            to claimant's counsel indicating that claimant was confused 
 
            about the dates of the injury.  He then agreed that the 
 
            injury date was December of 1987 and that all remaining 
 
            dates should be extrapolated from that point.  After this 
 
            letter, defendants still had questions regarding the date of 
 
            the injury and whether claimant had advised Dr. Carlstrom of 
 
            his history regarding his back.  Dr. Carlstrom was then 
 
            provided with additional information regarding claimant's 
 
            preexisting back condition.  He then wrote another confusing 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            letter on November 7, 1989.  Dr. Carlstrom wrote: 
 
            
 
                    I do not think, after reviewing my data and 
 
                 that of the rest of the chart, that his current 
 
                 clinical problem is one of chronic myofascial low 
 
                 back pain I do note that he has a small herniated 
 
                 disc in his back, but I don't thing that has any 
 
                 bearing upon his clinical status.  I think that at 
 
                 present his impairment, suggested in my previous 
 
                 letter as 8% of the body as whole, should be 
 
                 related to the 1987 lifting incident, and I think 
 
                 he should be considered to have reached maximum 
 
                 benefits of healing in mid 1988.  I suspect that 
 
                 he had a fair amount of previous clinical 
 
                 problems, with respect to his low back, which to a 
 
                 certain extent made him vulnerable to a more 
 
                 serious injury at the time of his incident in 
 
                 1987.  Perhaps a few percent should be related to 
 
                 that.
 
            
 
            (Def. Ex. A).
 
            
 
                 14. Dr. Carlstrom then corrected himself again in a 
 
            letter dated on February 15, 1990, where he indicated that 
 
            claimant was in fact suffering from myofascial low back 
 
            pain.  Dr. Carlstrom clarified all of his conclusions in his 
 
            deposition on February 5, 1990 (Def. Ex. O).  As a result of 
 
            the deposition, Allied paid claimant accrued permanent 
 
            partial disability benefits with interest in the amount of 
 
            $6,582.40 on February 20, 1990.  Claimant had received no 
 
            payments from June 1988 until the payment in February 1990 
 
            was made.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  Whether claimant is entitled to a penalty for a 
 
            delay in payments pursuant to Iowa Code section 86.13 
 
            (1991).
 
            
 
                 Claimant argues that he was entitled to payment of 
 
            permanent partial disability benefits as early as September 
 
            13, 1988 when Dr. Reschly gave claimant his functional 
 
            impairment rating.  Claimant goes on to argue that even if 
 
            the September 1988 date is rejected, it was clear that 
 
            claimant was entitled to payment in July of 1989 after Dr. 
 
            Carlstrom rated claimant at eight percent.  If this date is 
 
            rejected, then claimant's argue that permanent partial 
 
            disability benefits should have been paid after Dr. 
 
            Carlstrom corrected himself in November of 1989.  Defendants 
 
            had no right to wait until February 1990 to make the payment 
 
            to claimant and must be penalized for that delay.  
 
            
 
                 Defendants, on the other hand, urge that the dispute 
 
            between claimant and defendants was fairly debatable during 
 
            the time defendants were attempting to obtain sufficient 
 
            information regarding claimant's status and past medical 
 
            history.  Dr. Carlstrom's initial evaluation report 
 
            supported defendants' contention that claimant's injury was 
 
            not work related, but was related to an injury suffered in 
 
            1985.  The claim remained a bona fide dispute until Dr. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Carlstrom was able to clarify the series of letters he wrote 
 
            regarding the claimant's condition and the cause of 
 
            claimant's back complaints.  Consequently, defendants urge 
 
            no penalty is due.
 
            
 
                 Iowa Code section 86.13(1991) is the governing 
 
            provision for the assessment of penalties and provides in 
 
            relevant part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapters 85, 85A or 
 
                 85B up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Under section 86.13, a penalty is not awarded for 
 
            nonpayment of medical expenses.  Penalty benefits are only 
 
            applicable to weekly compensation benefits.  Zahn v. Iowa 
 
            State Men's Reformatory, IV Iowa Industrial Commissioner 
 
            Report 409, 410 (Arb.1983).  If it is alleged that an 
 
            employer wrongfully withholds weekly compensation benefits 
 
            from a claimant, the claimant must establish the benefits 
 
            were withheld unreasonably in order for the claimant to 
 
            receive additional benefits under section 86.13.  Curtis v. 
 
            Swift Independent Packing, IV Iowa Industrial Commissioner 
 
            Report 88, 93 (Arb. 1984).  It is reasonable for an employer 
 
            to withhold benefits when the employer was not alerted to 
 
            occurrences which would notify a reasonable person that 
 
            benefits would be due or when there was no work time lost.  
 
            McCormack v. Sunsprout, I Iowa Industrial Commissioner 
 
            Decisions No. 1, 142, 144 (1984).  However, if there are no 
 
            contradictions in the claimant's claim then a penalty will 
 
            be assessed.  Willis v. Ruan Transport Corporation, IV Iowa 
 
            Industrial Commissioner 395, 396 (1984) (The doctors' 
 
            reports and the claimant's statements regarding the injury 
 
            and its connection to an incident at work are consistent.  
 
            Withholding benefits in this instance was found to be 
 
            unreasonable and a penalty was assessed to the healing 
 
            period benefits.  Employer was given the benefit of the 
 
            doubt as to whether the injury caused a permanent impairment 
 
            due to claimant's preexisting back complaints); Peterman v. 
 
            American Freight System, File No. 747931 Slip op. (Iowa Ind. 
 
            Comm'r Arb. August 10, 1988).  The standard, then is whether 
 
            defendant's claim is fairly debatable.  Where defendants 
 
            assert a claim that is fairly debatable, they do not act 
 
            unreasonably in the denial of payment.  Seydel v. U of I 
 
            Physical Plant, File No. 753405, Slip op. (Iowa Ind. Comm'r 
 
            App. November 1, 1989).
 
            
 
                 The agency has found that a claim is fairly debatable 
 
            when the medical evidence was confusing or complex.  Hoskins 
 
            v. Quaker Oats, File No. 708553, Slip op. (Iowa Ind. Comm'r 
 
            App. July 18, 1985).  Additionally, if there is a fair 
 
            question as to entitlement, a claim is fairly debatable and 
 
            no penalty will be awarded.  Curtis v. Swift Independent 
 
            Packing, IV Iowa Industrial Commissioner Reports 88, 93 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (App. 1984).  If there are significant questions of fact or 
 
            law, a claim is fairly debatable and no penalties will be 
 
            awarded.  Danehy v. Walnut Grove Products, IV Iowa 
 
            Industrial Commissioner Report 94, 98 (Arb. 1984).  Finally, 
 
            where there is a bona fide dispute between the parties, no 
 
            penalty benefits are assessed.  Just v. Hygrade Food 
 
            Products Corp., IV Iowa Industrial Commissioner Report 190, 
 
            191 (App. 1984). 
 
            
 
                 In this instance, payments to claimant were terminated 
 
            and delayed.  Each instance of nonpayment requires separate 
 
            analysis.
 
            
 
                 The termination of benefits in June of 1988 was 
 
            reasaonable.  Claimant voluntarily left work without medical 
 
            authorization.  Since light duty work was available that 
 
            satisfied Dr. Reschly's restrictions, claimant lost his 
 
            benefits when he left work.  However, the failure to resume 
 
            payments of temporary total disability after July 18, 1988 
 
            was not reasonable.  Temporary total disability benefits are 
 
            available to a claimant when the claimant is unable to work 
 
            due to a work-related injury.  Boyd v. Western Home, File 
 
            No. 890207, Slip op. (Iowa Ind. Comm'r App. June 26, 1991) 
 
            (Healing period benefits awarded when claimant has inability 
 
            to work); Accord, 2 Larson Workmen's Compensation, Section 
 
            57.66 at 10-307-8 (1989).  Allied knew that claimant had 
 
            been on and off work as a result of back complaints since 
 
            early in the year.  Allied also knew that claimant had been 
 
            released to return to light duty work but that the release 
 
            was withdrawn in July when Dr. Reschly indicated that 
 
            claimant could no longer work.  Moreover, it was clear to 
 
            Allied that claimant was unable to return to his job when he 
 
            attempted to return in September of 1988.  The report from 
 
            Dr. Reschly in August had made that point clear.  As a 
 
            result, defendants will be assessed a penalty on healing 
 
            period benefits in the amount of 30 percent. 
 
            
 
                 With regard to the question of permanency, payments of 
 
            this benefit remained a bona fide dispute until Dr. 
 
            Carlstrom cleared up the confusion caused by his report and 
 
            subsequent letters.  The question of permanency was fairly 
 
            debatable in light of claimant's significant preexisting 
 
            back condition, the reports from Dr. Reschly and the report 
 
            from Dr. Carlstrom.  The medical records from both Dr. 
 
            Reschly and Dr. Carlstrom were not models of clarity.  This 
 
            factor combined with Dr. Reschly's observation that claimant 
 
            was motivated by a secondary gain factor cast serious doubt 
 
            on whether there was a causal nexus between the injury 
 
            suffered on December 18, 1987 and the permanent disability 
 
            claimed by claimant.
 
            
 
                 A fair reading of agency precedent does not require the 
 
            insurance carrier to perform a due diligence investigation 
 
            to decide whether to begin or terminate benefits as 
 
            suggested by the claimant.  Rather, the carrier should 
 
            satisfy itself that the claim is fairly debatable after 
 
            considering the medical information available to it at the 
 
            time the decision is made to either delay or terminate 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            benefits.  The carrier may not rely on creative legal 
 
            theories to avoid payment.  Sinclair v. Ellsworth Freight 
 
            Lines, Inc., File No. 840779, Slip op. (Iowa Ind. Comm'r 
 
            Arb. September 13, 1989).  The carrier's decision must be 
 
            grounded in fact and based upon the conclusions of experts 
 
            who can supply it with solid reasons for delaying or 
 
            terminating payment.  Otherwise, the carrier and the 
 
            employer will be assessed a penalty.  
 
            
 
                 Since the claim of permanency remained a bona fide 
 
            dispute until after Dr. Carlstrom's deposition on February 
 
            5, 1990, defendants had probable cause to delay payment of 
 
            the permanent partial disability benefit payments until the 
 
            date the accrued benefits were paid and no penalty will be 
 
            assessed on those benefits.
 
            
 
                 2.  Whether claimant is entitled to further benefits 
 
            for failure by defendants to give a 30 day notice of 
 
            termination of benefits as required by Iowa Code section 
 
            86.13 (1991) and Auxier v. Woodward State Hospital School, 
 
            266 N.W.2d 139 (Iowa 1978).
 
            
 
                 The second prong of claimant's request for further 
 
            benefits is based upon Allied's failure to provide notice of 
 
            termination of benefits when it suspended payment of the 
 
            temporary partial disability benefits in June of 1988.  
 
            Claimant makes this argument based on Auxier v. Woodward 
 
            State Hospital School, 266 N.W.2d 139 (Iowa 1978) and 
 
            Himschoot v. Montequma Manufacturing, No. 9-604/89-341, 
 
            Slip op. (Iowa Ct. App. Feb. 22, 1990).  Defendants rely on 
 
            the same authority and the language of the Iowa Code to 
 
            assert that they were not required to give claimant a notice 
 
            of the termination of his benefits since he had returned to 
 
            work.  In the event the notice was required, claimant's 
 
            additional benefits would only be from the date of 
 
            termination of benefits to the date claimant filed his 
 
            petition on August 25, 1988.  Himschoot, Slip op. at 13.  
 
            Based on this authority, 10 weeks of benefits would 
 
            therefore be available to the claimant.
 
            
 
                 The Auxier court held that worker's compensation 
 
            benefits may not be taken away without due process of law.  
 
            Auxier, 266 N.W.2d at 142.  Justice Harris observed that 
 
            not only is some pretermination notice required under the 
 
            tenants of Goldberg v. Kelley, 90 S.Ct. 1011 (1970), but 
 
            claimant must also be accorded some opportunity to protest 
 
            and present proof as to why the benefits should not be 
 
            terminated.  The Auxier court concluded that before workers' 
 
            compensation benefits are terminated, due process requires 
 
            the following:
 
            1.  That claimant recieve a notice which tells the           
 
            claimant about the contemplated termination of          
 
            benefits;
 
            2.  That the termination will take place at a specified      
 
            time not less than 30 days after the notice;
 
            3.  The reason for the termination;
 
            4.  That the claimant has the right to submit evidence       
 
            or documents disputing the termination;
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            5.  Claimant has the right to be advised whether             
 
            termination is still contemplated;
 
            6.  Claimant has the right of review reopening pursuant      
 
            to Iowa Code section 86.34.
 
            If the claimant demonstrates recovery by returning to work, 
 
            then the requirements of Auxier are not applicable to a 
 
            subsequent termination of benefits.  See, Iowa Code section 
 
            86.13 (1991); Auxier 266 N.W.2d at 142.
 
            
 
                 The agency has construed the phrase, "demonstrated 
 
            recovery by returning to work" to mean performing duties for 
 
            the employer which consist of engaging in gainful activity 
 
            futhering the employer's business.  Sparks v. Herberger 
 
            Construction Co., IV Iowa Industrial Commissioner Report 
 
            343, 344 (Interim Dec. 1983).  Where a claimant returns to 
 
            work for one or two days and the employer takes the worker 
 
            back in apparent good faith, and the claimant stops working 
 
            because of a subjective perception of the extent and effect 
 
            of the injury, Auxier does not require a notice of the 
 
            termination of benefits;  Armstrong v. State of Iowa 
 
            Building & Grounds, II Iowa Industrial Commissioner Report 
 
            14, 15 (App. 1981), aff'd on other grounds, 382 N.W. 2d 181 
 
            (Iowa 1986).  This interpretation is consistent with the 
 
            underlying purpose of worker's compensation benefits which 
 
            contemplates benefit payments for the injured worker for the 
 
            time the worker is unable to work.  When the employee 
 
            actually returns to work and begins receiving wages, 
 
            compensation is no longer necessary and compensation 
 
            payments are suspended.  Sparks, at 344.  Likewise, when 
 
            suitable work is available and the claimant voluntarily 
 
            leaves work, the employer is entitled to suspend payments.  
 
            2 Larson Workmen's Compensation, Section 57.66 at 10-307-8 
 
            (1989).
 
            
 
                 In this instance, claimant had returned to light duty 
 
            work.  At the time claimant's benefits were terminated, 
 
            claimant was released for light duty work.  The work, even 
 
            though light duty work, was designed to further the business 
 
            interests of the employer.  Claimant's employer had light 
 
            duty work available and claimant had performed those duties 
 
            for over a month.  Claimant left his employment for personal 
 
            reasons rather than reasons associated with his back injury.  
 
            Defendants, consistent with the exception contained in 
 
            Auxier and Iowa Code section 86.13, were entitled to 
 
            terminate claimant's benefits without issuing the Auxier 
 
            notice because claimant had demonstrated his recovery by 
 
            returning to work and then voluntarily leaving his job for 
 
            personal reasons.  No additional benefits will be awarded 
 
            for the absence of a notice.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Berman and Allied shall pay to claimant a penalty 
 
            benefit on healing period benefits in the amount of thirty 
 
            percent (30%) of the awarded healing period benefits at the 
 
            rate of one hundred forty-nine and 60/100 dollars ($149.60).  
 
            As these benefits have accrued, they shall be paid in a lump 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            sum together with statutory interest thereon pursuant to 
 
            Iowa Code section 85.30 (1991).
 
            
 
                 2.  Berman and Allied shall not be assessed a penalty 
 
            for failure to commence permanent partial disability 
 
            payments as payment of those benefits was fairly debatable.
 
            
 
                 3.  Berman and Allied owe no further benefits for the 
 
            failure to supply claimant with a notice of termination of 
 
            benefits in June of 1988.
 
            
 
                 4.  The costs of this action shall be assessed to 
 
            Berman and Allied pursuant to rule 343 IAC 4.33.
 
            
 
                 5.  Berman and Allied shall file claim activity reports 
 
            as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Donald G Beattie
 
            Mr Larry G Wilson
 
            Attorneys at Law
 
            204 8th Street SE
 
            Altoona Iowa 50009
 
            
 
            Mr Marvin E Duckworth
 
            Mr Jeff M Margolin
 
            Attorneys at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
            
 
                 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-4000.1 - 5.4000.2
 
                      Filed September 27, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROY VAN DRASKA, JR.,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 874804
 
            SAM BERMAN AND SONS,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ALLIED INSURANCE COMPANY,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-4000.1
 
            Employer who terminated temporary partial disability 
 
            benefits is not required to give Auxier notice where 
 
            claimant had returned to light duty work and voluntarily 
 
            left his employment.
 
            
 
            5-4000.2
 
            Claimant was entitled to penalty benefits on healing period 
 
            benefits when employer and insurance carrier failed to 
 
            resume temporary total disability benefits when claimant's 
 
            release to return to work was withdrawn.
 
            Claimant with significant preexisting back problems was not 
 
            entitled to penalty on permanency benefits when insurance 
 
            carrier refused payment.  Claim was fairly debatable 
 
            particularly in light of confused reports from doctors and 
 
            comment from primary treating physician that claimant was 
 
            letting secondary gain factors affect his symptoms.
 
            
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        KEITH BROCKSHUS (Deceased),
 
        KIM HIVELEY in behalf of                 File No. 875069
 
        SHANE BROCKSHUS,
 
                                                     DECISION
 
            Claimant,
 
                                                        ON
 
        
 
        vs.                                          EQUITABLE
 
        
 
        GARDINER & COMPANY, P.C.,                  APPORTIONMENT
 
        
 
            Employer,                               F I L E D
 
        
 
        and                                         JUN 27 1989
 
        
 
        ALLIED GROUP INSURANCE,            IOWA INDUSTRIAL COMMISSIONER
 
        
 
            Defendants.
 
        
 
        
 
             The matters of the petition for equitable apportionment and 
 
             stipulation in support thereof come on now for determination. 
 
             The undersigned, having been fully advised in the premises, 
 
             FINDS:
 
        
 
            1. That, on or about January 29, 1988, Allied Group 
 
        Insurance was the workers' compensation insurance carrier for the 
 
        employer, Gardiner & Company, P.C.
 
        
 
            2. That on or about January 29, 1988, Keith Brockshus was 
 
        an employee of Gardiner & Company, P.C.
 
        
 
            3. That on or about January 29, 1988, Keith Brockshus 
 
        sustained a personal injury arising out of and in the course of 
 
        his employment with Gardiner & Company, P.C., resulting in his 
 
        demise.
 
        
 
            4. That Kim Hiveley is the ex-wife of decedent Keith 
 
        Brockshus.
 
        
 
            5. That Shane Richard Brockshus is a child born on July 28, 
 
        1977, out of the marriage of Kim Hiveley and Keith Brockshus, 
 
        deceased.
 
        
 
            6. That pursuant to the previous Decree of Dissolution of 
 
        the marriage of Kim Hiveley and Keith Brockshus, Kim Hiveley was 
 
        granted custody of the child Shane Richard Brockshus and Keith 
 
        Brockshus, deceased, was ordered to pay two hundred dollars 
 
        ($200.00) per month child support.
 
             7. That at the time of his death, Keith Brockshus was 
 
             married to Peggy Brockshus and was the father of a child Shannon 
 
             Raye Brockshus, born on September 7, 1986.
 
             
 
             8. That Peggy Brockshus has not remarried.
 
             
 
             9. That since the date of death of Keith Brockshus, Allied 
 
             Group Insurance Company has been paying weekly workers' 
 
             compensation death benefits in the amount of three hundred and 
 
             18/100 dollars ($300.18) per week.
 

 
        
 
 
 
 
 
             
 
             10. That Kim Hiveley and Shane Richard Brockshus currently 
 
             reside in Lake Park, Dickinson county, Iowa.
 
             
 
             11. That the appropriate rate for weekly compensation 
 
             purposes is determined and ordered to be three hundred and 18/100 
 
             dollars ($300.18) per week.
 
             
 
             12. That, pursuant to Iowa Code section 85.49, the Clerk of 
 
             Court of the District Court for Dickinson County, Iowa, shall act 
 
             as trustee for the minor, Shane Richard Brockshus.
 
                  
 
             13. That the insurance carrier, Allied Group Insurance, is 
 
             hereby ordered to pay weekly compensation in the amount of sixty 
 
             and 04/100 dollars ($60.04) per week for the use and benefits of 
 
             Shane Richard Brockshus.
 
             
 
             14. That payments shall be made to the Clerk of the 
 
             District Court in and for Dickinson County, Iowa, as trustee for 
 
             the minor child, Shane Richard Brockshus.
 
             
 
             15. That the remaining two hundred forty and 14/100 dollars 
 
             ($240.14) shall be paid directly to Peggy Brockshus pursuant to 
 
             Iowa Code section 85.43.
 
             
 
             16. That these benefits shall continue until such time as 
 
             the industrial commissioner orders otherwise or the parties are 
 
             no longer eligible to receive the same under the Iowa Workers' 
 
             Compensation laws.
 
                  
 
             17. That the parties waive any right to hearing pursuant to 
 
             the Iowa Workers' Compensation Act and the Iowa Administrative 
 
             Procedure Act.
 
                  
 
            Signed and filed this 27th day of June, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Earl Maahs
 
        Attorney at Law
 
        708 Lake St.
 
        P.O. Box AK
 
        Spirit Lake, IA 51360
 
        
 
        Mr. Stephen W. Spencer
 
        Attorney at Law
 
        218 6th Ave Ste 300
 
        P.O. Box 9130
 
        Des Moines, IA 50306
 
        
 
        Mr. Daniel E. Dekoter
 
        Attorney at Law
 
        315 Ninth St
 
        Sibley, IA 51249
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                       51200
 
                                       Filed June 27, 1989
 
                                       Deborah A. Dubik
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        KEITH BROCKSHUS (Deceased),
 
        KIM HIVELEY in behalf of
 
        SHANE BROCKSHUS,
 
        
 
            Claimant,                                  File No. 875069
 
        
 
        vs.
 
                                                        DECISION
 
        GARDINER & COMPANY, P.C.,
 
                                                        ON
 
            Employer,
 
                                                        EQUITABLE
 
        and
 
        
 
        ALLIED GROUP INSURANCE,                         APPORTIONMENT
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        51200
 
        
 
             Benefits allotted in equitable apportionment based on 
 
             stipulated record submitted.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LYNETTE R. F. GOLAY,          :
 
                                          :
 
                 Claimant,                :      File No. 875170
 
                                          :
 
            vs.                           :   A R B I T R A T I O N
 
                                          :
 
            K MART CORPORATION,           :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Lynette 
 
            R. F. Golay, claimant, against K Mart, self-insured, 
 
            employer, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            January 28, 1988.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on June 15, 
 
            1992 in Des Moines, Iowa.  The claimant was present and 
 
            testified.  Also present and testifying at the hearing was 
 
            Charlotte Shelley.  The documentary evidence identified in 
 
            the record consists of joint exhibit A, claimant's exhibits 
 
            1-11 and 24-27, and defendant's exhibits 1-39.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            15, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant is entitled to receive temporary 
 
            total or healing period benefits from April 11 through 29, 
 
            1991;
 
            
 
                 2.  Whether claimant's injury is a cause of permanent 
 
            disability and, if so, the extent thereof.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence contained in the exhibits, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on November 3, 1955 and graduated 
 
            from high school in 1974.  She is married with one minor 
 
            child.  Claimant commenced working for employer in June of 
 
            1975 as a cashier-checker.  In 1977, she was promoted to 
 
            area merchandiser.  She held this job until October 1985 
 
            when she was promoted to shipper/receiving manager.  
 
            Claimant was injured on the job January 28, 1988.  She was 
 
            released to return to light duty work on June 6, 1988.  The 
 
            next one and one/half years she worked as a competitive 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shopper and in customer service.  In December 1989, she 
 
            assumed her present duties as a merchandise clerk and 
 
            pharmacy technician.  At the time of her injury she earned 
 
            $8.05 an hour.  At the present time she earns $9.25 an hour.
 
            
 
                 On January 28, 1988, while performing her usual duties 
 
            at work, a stack of boxes approximately eight feet in height 
 
            and at least 50 pounds in weight, fell off an adjacent 
 
            roller track, striking her on the right shoulder and in the 
 
            right hip area.  She experienced neck, right shoulder, right 
 
            arm, right hip and leg pain but managed to finish working 
 
            the day.  The next day she saw Stanley Haag, M.D., who took 
 
            her off work and put her on rest with Tylenol #3 and some 
 
            Naprosyn.  The symptoms improved somewhat but they were 
 
            still quite significant with increased activity.  She was 
 
            off work for approximately one week and returned to work at 
 
            light duty for a one week period but her symptomatology 
 
            exacerbated.  She was put on alternative medications 
 
            including Percocet, Flexeril, Tylenol #3, Naprosyn and 
 
            Tolectin, which produced moderate pain reduction but 
 
            incomplete relief.
 
            
 
                 Claimant was referred by Dr. Haag to physical therapy 
 
            consultants for evaluation and treatment.  She was seen by 
 
            Thomas Bower, LPT, who reported that electrical studies 
 
            taken on February 19, 1988 demonstrated no evidence of 
 
            abnormality either through the conduction studies or through 
 
            the electromyographic samplings.  Her complaints persisted 
 
            and she was evaluated again on February 23, 1988 by Mr. 
 
            Bower.  At this time, she was started on physical therapy 
 
            utilizing moist heat followed by intermittent cervical 
 
            traction with range of motion.  (Exhibits 33-34).
 
            
 
                 On March 4, 1988, Dr. Haag referred claimant for an MRI 
 
            examination of the lumbar spine.  Results revealed moderate 
 
            degeneration of the L4-5 and L5-S1 discs without other 
 
            significant abnormality.  (Ex. 6, page 66).
 
            
 
                 Dr. Haag then referred claimant to Scott Neff, D.O., 
 
            orthopedic surgeon, for evaluation on March 14, 1988.  After 
 
            reviewing claimant's medical history and noting her 
 
            complaints, Dr. Neff recommended conservative therapy 
 
            including a TENS unit and trigger point injections over the 
 
            right shoulder and right posterior pelvic crest.  (Ex. 27).
 
            
 
                 On April 4, 1988, Dr. Neff saw claimant for a follow-up 
 
            examination.  She presented with myofascial soreness over 
 
            the right superomedial border of the scapula and the right 
 
            side of her low back and right buttock.  Dr. Neff felt she 
 
            was not a surgical candidate and recommended that she be 
 
            evaluated by Karen Kienker, M.D., physical medical and 
 
            rehabilitation specialist.  Dr. Kienker initially saw 
 
            claimant on April 19, 1988.  Claimant presented with 
 
            generalized pain in her upper and lower body.  After 
 
            conducting a comprehensive physical examination, Dr. 
 
            Kienker's impression included: (1) myofascial pain syndrome 
 
            involving right neck, right upper back and right hip; (2) 
 
            right throchanteric bursitis; and (3) depression.  Dr. 
 
            Kienker recommended a full pain management program at Iowa 
 
            Methodist Low Back Institute.  (Ex. 11, pp. 80-84).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was evaluated by J. Dan Smeltzer, M.A., 
 
            sociologist and coordinator of the pain management center, 
 
            on May 1, 1988.  Mr. Smeltzer determined that claimant was 
 
            experiencing a significant chronic pain syndrome and 
 
            depression.  (Ex. 35).
 
            
 
                 Claimant completed the pain management program on May 
 
            27, 1988 and contact was made with employer regarding 
 
            alternative jobs.  Dr. Kienker determined that claimant 
 
            could return to work on June 6, 1988, four hours initially, 
 
            with no lifting more than 40 pounds and no repetitive 
 
            movement of the right arm.  She was also restricted to 
 
            occasional reaching above shoulder level with the right arm 
 
            and standing no more than 30 minutes at a time.  Dr. Kienker 
 
            assessed a four percent permanent impairment rating.  (Ex. 
 
            12-14).
 
            
 
                 Claimant saw Dr. Kienker on June 22, 1988 for a 
 
            follow-up evaluation.  At this time, Dr. Kienker indicated 
 
            that claimant may now work six hours per day for the next 
 
            two weeks and then eight hours per day.  She noted that 
 
            there was a typographical error on her June 1 dictation 
 
            report and what she meant to say was that claimant could 
 
            lift up to 20 pounds not 40 pounds as stated in her dictated 
 
            notes.  (Ex. 16, pp. 95-96).
 
            
 
                 Claimant continued to have symptoms of low back pain 
 
            radiating into the right leg.  An MRI of the lumbar spine 
 
            was performed on January 24, 1989.  It revealed marked disc 
 
            degeneration with loss of hydration and disc space at the 
 
            L5-S1 level.  (Ex. 8).
 
            
 
                 Between October 31, 1989 and January 16, 1990, claimant 
 
            received nine sessions of cognitive therapy with Deems 
 
            Ortega, Ph.D., psychologist.  On January 22, 1990, Dr. 
 
            Ortega reported, in pertinent part, "I believe that 
 
            Lynette's emotional status will remain good if her employer 
 
            allows Lynette to avoid tasks or work stations that will 
 
            aggravate her discomfort."  (Claimant's Ex. 6).
 
            
 
                 On March 26, 1990, claimant was evaluated by Steven R. 
 
            Adelman, D.O., neurologist.  Claimant presented to Dr. 
 
            Adelman for evaluation of unsteadiness of gait.  Although 
 
            page one of Dr. Adelman's report is missing, a summary of 
 
            his examination is found on page two.  He concluded that she 
 
            had a normal neurologic examination with no evidence to 
 
            suggest nerve root entrapment, peripheral nerve injury or 
 
            other cause for her gait problems.  He agreed with the 
 
            diagnosis of myofascial pain syndrome.  (Defendant's ex. 9, 
 
            pp. 70-71).
 
            
 
                 Dr. Haag referred claimant to the Mayo Clinic for 
 
            evaluation of neck, right shoulder, right arm, right hip and 
 
            leg pain.  She was seen by Peter T. Dorsher, M.D., on April 
 
            12, 1991 for evaluation.  After reviewing claimant's medical 
 
            history and noting her complaints, a comprehensive physical 
 
            examination was performed.  Electromyographic studies of the 
 
            right upper extremity were normal.  A neurology consult was 
 
            obtained and revealed no evidence of a neurologic disorder.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Upon conclusion of testing, claimant was diagnosed with 
 
            shoulder and hip sprain/strain; superimposed right cervical, 
 
            right shoulder girdle and right hip girdle myofascial pain 
 
            syndrome; right ulnar neuritis at the elbow; and 
 
            deconditioning.  Dr. Dorsher found no indication for 
 
            surgery, further investigations, or passive therapy 
 
            modalities.  A non-impact aerobic conditioning program was 
 
            recommended.  A work program at the light duty level with 
 
            avoidance of repetitive bending, twisting and stooping and 
 
            frequent postural shifts was also recommended.  (Cl. Ex. 5).
 
            
 
                 Claimant was then referred by Scott Carver, M.D., to 
 
            William R. Boulden, M.D., for evaluation on April 25, 1991.  
 
            Dr. Boulden indicated that claimant presented with confusing 
 
            symptoms including right and left lower back pain, pain into 
 
            the right buttock and right trochanteric area and pain 
 
            radiating into her legs.  A repeat MRI examination was 
 
            recommended.  On May 8, 1991, Dr. Boulden reported that the 
 
            MRI examination showed nothing new.  He stated, "I think a 
 
            lot of her symptoms are inappropriate and I am still 
 
            concerned about pain fixation or chronic pain syndrome."  He 
 
            recommended a rehabilitation program for muscle 
 
            strengthening of her lower spine.  (Ex. 29-31).
 
            
 
                 Finally, claimant was evaluated by Mark B. Kirkland, 
 
            D.O., on June 10, 1992.  Claimant presented with complaints 
 
            of neck, shoulder and hip pain.  Dr. Kirkland found no 
 
            objective evidence to explain or support claimant's 
 
            subjective complaints.  He felt that Dr. Kienker's 
 
            impairment rating on June 1, 1988 was fair and he agreed 
 
            with the work restrictions previously imposed.  (Ex. A).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 At the hearing, the parties stipulated that claimant 
 
            sustained an injury on January 28, 1988 which arose out of 
 
            and in the course of employment with employer and that such 
 
            injury was the cause of temporary disability during a period 
 
            of recovery from January 28, 1988 to June 6, 1988, except 
 
            for one week during which claimant returned to light duty.  
 
            Defendant has previously paid healing period benefits for 
 
            that period of time.  Claimant was also off work from April 
 
            11 through April 29, 1991 in order to be evaluated, at 
 
            defendant's request, at Mayo Clinic.  Defendant shall pay 
 
            claimant healing period benefits during the time she was off 
 
            work for evaluation.
 
            
 
                 The dispute in this case is whether claimant is 
 
            entitled to weekly compensation for permanent disability 
 
            benefits and, if so, the extent thereof.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of January 28, 1988, is causally related to the disability 
 
            on which she now bases her claim.  Bodish v. Fischer, Inc., 
 
            133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, 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 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The evidence in the record indicates that on January 
 
            28, 1988, claimant sustained an injury to her right arm, 
 
            right sshoulder, neck and right hip.  She was treated with 
 
            various conservative modalities and released to return to 
 
            work on June 6, 1988 with a 20 pound lifting restriction.  
 
            Dr. Kienker, her treating physician, gave her a four percent 
 
            permanent impairment rating.  Claimant returned to light 
 
            duty with employer on June 7, 1988.
 
            
 
                 Despite normal clinical and laboratory findings, 
 
            claimant alleges that her pain symptomatology still 
 
            persists.  A comprehensive evaluation at the Mayo Clinic on 
 
            April 12, 1991, reported healed right cervical, shoulder and 
 
            hip sprain/strain.  At this time, it was determined that 
 
            tests results indicated no reason for surgery, further 
 
            investigations or passive therapy modalities.  Claimant's 
 
            primary problem appears to be a myofascial pain syndrome.  A 
 
            recent examination by Dr. Kirkland on June 10, 1992 
 
            reaffirmed this diagnosis.  However, he noted that the pain 
 
            in her right acromioclavicular joint and pain in her 
 
            supraspinatus muscle is unrelated to her original injury.  
 
            He agreed with Dr. Kienker's impairment rating but felt that 
 
            based on his examination, he could find no clear cut 
 
            objective findings.  Nevertheless, he agreed that she should 
 
            follow the same restrictions as previously given to her and 
 
            felt that excessive bending over at the waist and excessive 
 
            squatting should be avoided.  (Ex. A).
 
            
 
                 Although claimant has had a myriad of subjective 
 
            complaints since her original work related injury, there is 
 
            a paucity of objective findings to explain her 
 
            symptomatology.  Nevertheless, physicians who have treated 
 
            and examined claimant agree that she suffers from myofascial 
 
            pain syndrome.  She is precluded from performing her prior 
 
            work activity as a receiving manager and is restricted to 
 
            light duty.  Consequently, claimant has satisfied her burden 
 
            of proof in demonstrating that she has suffered a permanent 
 
            impairment which precludes her from performing her past work 
 
            activity.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The next issue to be resolved is the extent of 
 
            claimant's industrial disability.
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 
 
            loss of earning capacity and not a mere `functional 
 
            disability' to be computed in the terms of percentages of 
 
            the total physical and mental ability of a normal person.  
 
            The essence of an earning capacity inquiry then, is not how 
 
            much has the claimant been functionally impaired, but 
 
            whether that impairment, in combination with the claimant's 
 
            age, education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within her restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 Claimant was born on November 3, 1955.  She was 33 
 
            years old at the time of her injury and is now 36 years old.  
 
            Because of her relatively young age, claimant's industrial 
 
            disability is less serious than it would be for an older 
 
            worker who is injured at the peak of her earnings career.  
 
            McCoy v. Donaldson Company, Inc., File Numbers 782670 and 
 
            852000 (App. Decn. April 28, 1989).  Claimant is a high 
 
            school graduate and is capable of undergoing vocational 
 
            rehabilitation and vocational retraining.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).
 
            
 
                 Claimant is foreclosed from performing her prior work 
 
            activity as a receiving manager.  This work was heavy in 
 
            exertional level.  Defendant made great efforts to 
 
            accommodate claimant's physical restrictions. Claimant's 
 
            loss of earning capacity or industrial disability is 
 
            therefore diminished accordingly.  McSpadden v. Big Ben Coal 
 
            Company, 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Claimant's injury has nevertheless resulted in a loss 
 
            of earnings and loss of earning capacity.  Claimant's job at 
 
            the time of her injury was a designated level six position.  
 
            Her current position is a level one position.  The maximum 
 
            pay for a level one position is $7.95 an hour while the 
 
            maximum pay for a level six is $11.04 an hour.  Claimant was 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            earning $8.05 an hour at the time of her injury and 
 
            currently earns $9.25 an hour, which is over the level one 
 
            maximum but under the level six maximum.
 
            
 
                 Claimant alleges severe and intractable generalized 
 
            pain which affects her ability to perform work-related 
 
            activities and activities of daily living.  Claimant's 
 
            alleged symptomatology  appears exaggerated and out of 
 
            proportion to the clinical and laboratory findings in the 
 
            record.  Pain that is not substantiated by clinical findings 
 
            is not a substitute for impairment.  Waller v. Chamberlain 
 
            Manufacturing, II Iowa Industrial Commissioner Report 419, 
 
            425 (1981), Goodwin v. Hicklin G.M. Power, II Iowa 
 
            Industrial Commissioner Report 170 (1981).
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant has 
 
            sustained a ten percent industrial disability and is 
 
            entitled to 50 weeks of permanent partial disability 
 
            benefits commencing June 7, 1988.
 
            
 
                           
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred twelve and 65/100 dollars ($212.65) per week 
 
            commencing June 7, 1988.
 
            
 
                 That defendant pay to claimant healing period benefits 
 
            for time off work for medical evaluation from April 11 
 
            through April 29, 1991, at the rate of two hundred twelve 
 
            and 65/100 dollars ($212.65) per week.
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Stephen D Lombardi
 
            Attorney at Law
 
            10101 University Avenue
 
            Suite 202
 
            Clive Iowa 50325
 
            
 
            Mr Joel T S Greer
 
            Attorney at Law
 
            112 West Church Street
 
            Marshalltown Iowa 50158
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  JEAN M. INGRASSIA
 
                                                  Filed June 24, 1992
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LYNETTE R. F. GOLAY,     
 
                      
 
                 Claimant,                       File No. 875170
 
                      
 
            vs.                              A R B I T R A T I O N
 
                      
 
            K MART CORPORATION,                 D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded ten percent industrial disability as a 
 
            result of a work-related injury on January 28, 1988 to the 
 
            right side of the body.  Medical evidence indicates that her 
 
            right cervical, shoulder and hip sprain/strain healed but 
 
            she continued to suffer myofascial pain syndrome.  She was 
 
            released for light duty in June 1988 and given a four 
 
            percent permanent impairment rating.  Employer accommodated 
 
            her restrictions.  Claimant has been working 40 hours per 
 
            week for employer earning more now than when she was 
 
            injured.  Claimant's earning capacity has been compromised 
 
            and many higher paying jobs are foreclosed to her.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 1803.1; 2501; 2502
 
                           3202
 
                           Filed July 31, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PEGGY L. WATERMAN,  :
 
                      :
 
                 Claimant, :
 
                      :         File Nos. 790119
 
            vs.       :                   875237
 
                      :
 
            K-PRODUCTS, INC.,   :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            GENERAL CASUALTY COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            2501; 2502
 
            An inherent part of a treating orthopaedic surgeon's 
 
            function following a surgical procedure is to provide an 
 
            impairment rating.  Employer held liable under section 85.27 
 
            for such a rating, even though it was requested by the 
 
            claimant, rather than the insurance carrier.
 
            
 
            1803; 1803.1; 3202
 
            Forty-one-year-old claimant, with two distinct scheduled 
 
            injuries to her arms and eight percent impairment ratings to 
 
            each arm, awarded 25 percent permanent partial disability 
 
            where.  She was restricted from repetitive activity and had 
 
            only a high school education.  Her actual wage loss was 15 
 
            percent due to accommodations made by her employer.  Without 
 
            those accommodations, the loss would have been more severe.  
 
            She likely would have required retraining in order to obtain 
 
            any employment whatsoever.
 
            
 
 
         
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         HENRY E. KRIEGEL, JR.,     
 
                     
 
              Claimant,   
 
                   
 
         vs.         
 
                                              File No. 875464
 
         FARMHAND, INC.,       
 
                                                A P P E A L
 
              Employer,   
 
                                              D E C I S I O N
 
         and         
 
                     
 
         AMERICAN MUTUAL LIABILITY       
 
         INS. CO.,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.     
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 28, 1992 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Claimant's disability is to be evaluated as of the time of the 
 
         hearing.  The possibility that claimant may be recalled to his 
 
         employment at a later date is speculative.  The parties have 
 
         available to them review-reopening if a change in claimant's 
 
         employment status occurs.  Claimant's disability as of the date 
 
         of the hearing is determined to be eighty percent (80%).
 
         The claimant and defendants shall share equally the costs of the 
 
         appeal including transcription of the hearing.
 
         
 
         Signed and filed this ____ day of September, 1993.
 
         
 
                                     ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Paul J. McAndrew, Jr.
 
         Attorney at Law
 
         122 South Linn Street
 
         Iowa City, Iowa  52240
 
         
 
         Mr. Cecil L. Goettsch
 
         Mr. D. Brian Scieszinski
 
         Attorneys at Law
 
         801 Grand Avenue
 
         Suite 3700
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                           1803
 
                                           Filed September 30, 1993
 
                                           BYRON K. ORTON
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
          
 
            HENRY E. KRIEGEL, JR.,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 875464
 
            FARMHAND, INC.,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                D E C I S I O N
 
            and         
 
                        
 
            AMERICAN MUTUAL LIABILITY       
 
            INS. CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            1803
 
            Deputy's decision affirmed, with short additional analysis 
 
            clarifying that the award of 80 percent industrial 
 
            disability was based on claimant's circumstances at the time 
 
            of the hearing, and the fact that claimant might be recalled 
 
            to work in the future was speculative and not a factor in 
 
            the award.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HENRY E. KRIEGEL, JR.,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 875464
 
            FARMHAND, INC.,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MUTUAL LIABILITY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on June 17, 1992, at 
 
            Mason City, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on January 28, 1988.  The record in the proceeding 
 
            consists of the testimony of the claimant; claimant's wife, 
 
            M. Kriegel; Dan Cory; Charles Gray; William Livezey; and 
 
            Henry Bolton; joint exhibits 2 through 9, 11 through 30, 32, 
 
            33, 35 through 40, and 43 through 46.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits, if permanent disability 
 
            is found;
 
            
 
                 2.  Whether claimant has an industrial disability or a 
 
            permanent impairment to his left upper extremity;
 
            
 
                 3.  Entitlement to 85.27 medical benefits, the issue 
 
            being causal connection and medical mileage; and,
 
            
 
                 4.  Whether defendants are entitled to a $4,920.60 
 
            credit as to this amount being paid by a nonoccupational 
 
            health carrier under the provisions of 85.38(2).
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 42 years old and dropped out of high school 
 
            after completing the eleventh grade.  He then got married.  
 
            Approximately thirteen years later, claimant got his GED at 
 
            a community college.  In 1988, defendant employer sent him 
 
            to a basic supervisor seminar in Des Moines.  Claimant has 
 
            no other formal education.  Claimant also testified through 
 
            his deposition taken April 5, 1991 (Joint Exhibit 15).  One 
 
            might note that even though the exhibits may be identified 
 
            as plaintiff's, all the exhibits are joint, and therefore 
 
            will be referred to as joint.
 
            
 
                 Claimant related his work history (Jt. Ex. 15, pp. 9-
 
            18).  Claimant stated he first worked for defendant employer 
 
            in December of 1971 and worked until 1984.  He then again 
 
            worked beginning January 11, 1988.  Claimant related the 
 
            reason he quit working in 1984 was that there had been 
 
            several six month layoffs in the prior years and the company 
 
            then went on strike and he needed a job so as not to lose 
 
            his home.  Claimant related the nature of his job up to 
 
            January 28, 1988, the date of his injury.  These duties 
 
            involved positions as a welder, maintenance mechanic and 
 
            group leader.  Claimant has worked a total of 13 1/2 years 
 
            for defendant employer.
 
            
 
                 Claimant had a physical examination which was required 
 
            by defendant employer prior to beginning work again for them 
 
            on January 11, 1988 (Jt. Ex. 26).  Claimant was hired as a 
 
            welder.
 
            
 
                 Claimant described how his accident occurred on January 
 
            28, 1988.  Claimant was welding on a Series 120 loader (Jt. 
 
            Ex. 35) when the loader fell and hit the claimant on the 
 
            left shoulder and back of the neck (Jt. Exs. 32, 33, and 15, 
 
            p. 21).  Claimant testified that after the loader fell his 
 
            left arm became numb and swelled and his shoulder had a 
 
            burning and throbbing sensation.  Claimant indicated he 
 
            developed headaches and he felt as if the left side of his 
 
            head was exploding.  Claimant described and also showed the 
 
            undersigned the clawing effect of his middle three fingers.  
 
            The undersigned noticed that claimant cannot extend these 
 
            three fingers beyond a claw position.  Claimant indicates 
 
            this clawing condition has never changed since his injury.  
 
            Claimant was asked why Dr. Taylor said nothing about the 
 
            clawing and claimant indicated that Dr. Taylor limited his 
 
            exams to the shoulder movements due to pain, etc.
 
            
 
                 Claimant took off his shirt to show how unstable his 
 
            shoulder is.  He also had two electrodes taped on the left 
 
            shoulder and these ran to a hand held TENS unit.  Claimant 
 
            showed how his shoulder could be moved in and out of the 
 
            socket.  With the electrodes turned off, the shoulder was 
 
            able to be moved in and out.  When the electrodes were 
 
            turned on, the shoulder showed some physical movements.  The 
 
            undersigned noticed that the shoulder was able to be pushed 
 
            anywhere in and out of the socket when the TENS unit was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            turned off and when it was turned on it was harder to pull 
 
            out.  When the TENS unit was turned on the shoulder muscle 
 
            quivered and when turned off the quivering stopped.  It was 
 
            obvious to the undersigned from a personal observance that 
 
            this injury was into the body as a whole and was not 
 
            specifically limited to the left upper extremity.  Claimant 
 
            was asked why a Dr. Taylor said on July 14, 1988, that he 
 
            had a normal range of motion.  Claimant disagreed.  He also 
 
            indicated that when they were moving the arm they would hold 
 
            his shoulder.
 
            
 
                 Claimant returned to work on February 8, 1988, in a 
 
            salary position as a supervisor because of his knowledge of 
 
            production and welding.  He had to fill out a new 
 
            application (Jt. Ex. 21).  Claimant indicated the date 
 
            should be February 5, 1988 instead of 1985 and explained the 
 
            reason why the other date was placed thereon.
 
            
 
                 Claimant showed his hands which were swollen and 
 
            discolored (purplish in color).  Claimant indicated he was 
 
            told the reason for that condition was poor circulation due 
 
            to his shoulder injury.  Claimant related that his headaches 
 
            became more severe around January 7, 1990.  He contends that 
 
            he complained about his headaches to every doctor he saw.  
 
            He also indicated that around this January 7 date, he first 
 
            had the symptoms of the left side of his face swelling and 
 
            having blindness in the left eye (Jt. Ex. 15, pp. 27 and 
 
            31).
 
            
 
                 Claimant testified as to accidents or injuries he had 
 
            prior to January 28, 1988.  He related a 1977 auto accident 
 
            in which he was treated for eight and one-half months and 
 
            that he has had no problems from that accident after ten 
 
            months.
 
            
 
                 Claimant related a December 16, 1988 deer hunting 
 
            incident in which he fell climbing over a fence.  He went to 
 
            a doctor.  He indicated he fell on his right knee and left 
 
            shoulder.  Claimant indicated he didn't recall hurting his 
 
            left arm as it hurt just as it always does.  He returned to 
 
            work the next day (Jt. Ex. 45; 21, p. 16; 17).  In fact, 
 
            claimant worked one overtime hour on December 17.  Claimant 
 
            also indicated that he worked nine hours on the date of the 
 
            accident, December 16, even though he was supposed to be on 
 
            vacation.
 
            
 
                 Claimant also related an April 25, 1989 injury in which 
 
            he was trying to show a co-employee how to pull a 
 
            spring-wire out of a power cable.  The claimant demonstrated 
 
            in court how a person would hold the head with the left hand 
 
            against the stomach and pull the wire through the cable.  
 
            Claimant did it with ease.  Claimant did not miss any work 
 
            from this reported injury and worked nine hours which 
 
            included one hour overtime (Jt. Ex. 21, p. 18; 23).  Joint 
 
            exhibit 23, page 1, also reflects claimant lost no time in 
 
            April.  The parties also stipulated there was no supervisory 
 
            report made out for this April 25, 1989 incident.
 
            
 
                 At the time of claimant's deposition, joint exhibit 15, 
 
            pages 3 through 4, claimant was working for defendant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employer as a supervisor, his duties basically being 
 
            instructing and assigning jobs to the welders in the 
 
            maintenance departments.  It was a full-time job working 40 
 
            hours a week at $2,130 per month.
 
            
 
                 Claimant was laid off on August 30, 1991, from 
 
            defendant employer because of an economical turndown.  His 
 
            medical insurance was terminated.  He indicated a few people 
 
            were kept on a second shift.  He indicated no one has called 
 
            him and that his chance for recall ends on August 30, 1992 
 
            (Jt. Ex. 38).  Claimant said that defendant employer has 
 
            offered no rehabilitation to him but he has sought some 
 
            himself.  Claimant said he is currently seeking to get a 
 
            degree in computer science at Grinnell College under a 
 
            program for dislocated workers.  Claimant said that joint 
 
            exhibit 36 is his mileage log for his trips to and from the 
 
            hospital and that joint exhibit 37 is his search for work 
 
            record encompassing approximately five pages.  Claimant said 
 
            that his last search was June 16, 1992, with no success.  He 
 
            indicated he has no chance to return to work for defendant 
 
            employer as a welder-supervisor because of his medical 
 
            problems.  He also indicated that when places he seeks jobs 
 
            at see his disability or injury problems, they are not 
 
            interested or are not hiring.  As to the mileage amount, 
 
            claimant has not totaled it.
 
            
 
                 Claimant emphasized that he likes working with his 
 
            hands and likes to be kept busy.  He indicated he is good at 
 
            anything he tries to do, electrical, plumbing, carpentry, 
 
            automotive, or work around the house.  He loved to hunt and 
 
            fish and do things with the family.  He indicated he still 
 
            tries to do some of these things even though he is injured, 
 
            especially hunting and fishing, as these activities had been 
 
            a part of his life.  He stated that since his injury he 
 
            supervises while his father and son basically do the work as 
 
            he cannot do the work as he did before his injury.  Claimant 
 
            stated that there has been problems with the paying of his 
 
            bills and that he has received numerous collection notices 
 
            as to his January 28, 1988 injury.  He indicated that he has 
 
            been threatened with lawsuits and eventually after 
 
            considerable harassment, the bills were paid.
 
            
 
                 Claimant said that defendant employer has been helpful 
 
            when he returned to work for them as a supervisor.  Since 
 
            his layoff, he indicated Farmland has been helpful in 
 
            claimant trying to find jobs elsewhere by writing letters.  
 
            He agreed that the company felt that he was a good employee.  
 
            He also feels that if it wasn't for the economy, he would be 
 
            working at Farmland.  Claimant indicated that in January of 
 
            1988, he was making $6.96 per hour and when he returned to 
 
            work on February 8, 1988, as supervisor, he was making 
 
            $1,850 which was more than what he was making at the time of 
 
            his injury not including overtime.  He agreed that defendant 
 
            employer never refused him employment due to this January 
 
            1988 injury.  Claimant also acknowledged he never requested 
 
            rehabilitation services from the employer or insurance 
 
            carrier.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 There were questions and testimony by the claimant of 
 
            the various treatments by various doctors, etc.  These 
 
            basically are in reference to various reports later on.
 
            
 
                 On cross-examination, claimant related that in the 
 
            summer of 1990, he had been hit or punched by fellow 
 
            employees in the shoulder which caused temporary discomfort.  
 
            He indicated he never told the doctors in fear of getting 
 
            the employees in trouble.  These incidents appear not to 
 
            have caused any new injury. Claimant acknowledged that he 
 
            never requested rehabilitation servides from the emoployer 
 
            or insurance company.
 
            
 
                 Mrs. M. Kriegel, claimant's wife, testified that before 
 
            his injury in January 1988, claimant could do all kinds of 
 
            things including car maintenance, lawn work, plumbing, snow 
 
            shoveling, etc.  She said he cannot do these things now and 
 
            that the oldest son and claimant's father do this work.
 
            
 
                 She related claimant started having headaches right 
 
            after his injury and that if the headaches occurred, he at 
 
            times was incoherent and went into a deep sleep and could 
 
            not be awakened.  She affirmed claimant's testimony as to a 
 
            lot of problems getting the medical bills paid and that they 
 
            received collection letters.  She indicated the pharmacy 
 
            told him he could not have any more prescriptions due to the 
 
            outstanding balance.  She did indicate that the pharmacy is 
 
            now honoring the bills after a threat to cut them off.
 
            
 
                 Charles W. Gray testified he works for defendant 
 
            employer and that he was a night supervisor until August of 
 
            1991, when he was laid off.  He first knew claimant when 
 
            claimant was assigned to the welding shop at a wage of $6.96 
 
            per hour (Jt. Ex. 21, p. 12).  He acknowledged that he 
 
            signed this form.  He said he is also familiar with joint 
 
            exhibit 21, page 14, which was the February 8, 1988 transfer 
 
            of claimant to the second shift in a salary position as weld 
 
            shop foreman, described by the claimant as a supervisory 
 
            position.  Mr. Gray indicated that claimant was not capable 
 
            of continuing as a welder in his former job after his 
 
            January 28, 1988 injury as he could not work one handed.  
 
            Mr. Gray said that claimant was a very good worker, was a 
 
            self-motivated person and works good by himself and that 
 
            many people could not keep up with claimant at his work.  
 
            Mr. Gray agreed with joint exhibit 27, page 2, which is a 
 
            letter from Ron Harter, dated August 20, 1991.  Mr. Harter, 
 
            the plant superintendent, wrote that claimant has a 
 
            reputation of being one of the best and most knowledgeable 
 
            persons that Farmland has ever had in the welding 
 
            department.  He wrote that claimant is very highly motivated 
 
            and tries to do the best he can at whatever the challenge 
 
            may be.  He would be a great asset to anyone looking for a 
 
            dependable employee.  Mr. Gray also agreed with a letter 
 
            from Harry Bolton, plant manager, dated September 6, 1991, 
 
            which is six days after claimant was laid off, in which 
 
            claimant's mechanical aptitude and work ethics were praised 
 
            (Jt. Ex. 27, p. 3).  Mr. Gray indicated he wasn't in 
 
            claimant's working area when the actual injury occurred but 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            that he filled out the report (Jt. Ex. 32) and also filled 
 
            out the top part of joint exhibit 33.  Mr. Gray said that 
 
            after the accident claimant was in a lot of pain and that 
 
            his arm and shoulder hurt and claimant had no feeling in his 
 
            arms.  Mr. Gray said he then filled out a report to send 
 
            claimant to the hospital.  Mr. Gray said claimant had pain 
 
            in his arm, shoulder and neck when he returned and he could 
 
            tell by the expression on claimant's face that he was in 
 
            pain.  He indicated claimant couldn't use his left arm and 
 
            hand when he returned to work.  He said claimant wore his 
 
            left arm in a sling to get relief rather than let it hang 
 
            down.  Mr. Gray had no knowledge of claimant receiving an 
 
            injury on April 25, 1989.  He knows of no injury that 
 
            claimant received that worsened his arm or shoulder injury 
 
            or condition.  Mr. Gray also said that on claimant's return 
 
            to work in February 1988, he was having headaches.  He never 
 
            heard claimant complain of headaches prior to January 28, 
 
            1988.  He said claimant's headaches got worse and claimant 
 
            complained more frequently and had physical manifestation as 
 
            he could see the pain reflected in claimant's face from the 
 
            headaches.
 
            
 
                 Mr. Gray said that he has worked with the power cables 
 
            (Jt. Ex. 47) and which was marked but not offered as 
 
            evidence.  He said that a person with a normal arm and 
 
            shoulder could not injure himself by pulling out the spring 
 
            loader if one had knowledge of the gun.  He said if the 
 
            cable is in good shape, it would take minimum effort to pull 
 
            the cable out.
 
            
 
                 Dan Cory works in the buildings and grounds department 
 
            at the Marshall County Courthouse temporarily.  He testified 
 
            that he began working at defendant employer in April 1988.  
 
            He is the same person that is listed on joint exhibit 22, 
 
            page 18, in answer to interrogatories.  He said he has never 
 
            been contacted by Farmland or the insurance carrier as to 
 
            claimant's injury.  He indicated claimant was made 
 
            supervisor in June 1989 for the second shift in a press 
 
            department and machine shop.  Mr. Cory said he had no 
 
            contact with the claimant other than saying hello between 
 
            April 1988 and June 1989.  After claimant became supervisor 
 
            then he would speak to claimant at coffee and approximately 
 
            three or four times a night.  He said he saw claimant use 
 
            his left extremity very little.  He indicated claimant used 
 
            it to hold down paper while writing.  He said claimant's arm 
 
            got worse over time.  He indicated claimant used a sling and 
 
            a TENS unit.  He said claimant was a very good worker and 
 
            employee and was always willing to help the other employees 
 
            if he could.  Mr. Cory said he was subpoenaed.  He said 
 
            claimant was not a complainer and did not like to complain.  
 
            Mr. Cory said he knew claimant had headaches and that 
 
            sometimes he would be sent home because they got so bad.
 
            
 
                 William Livezey, who was subpoenaed to testify, stated 
 
            that he worked five years for defendant employer as of July 
 
            6, 1992, after having begun July 6, 1987, as a welder.  Mr. 
 
            Livezey said that he had very little contact with the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant until the claimant became supervisor in February 
 
            1988, at which time his contact with the claimant 90 percent 
 
            of the time was in a visual or talking distance.  Mr. 
 
            Livezey said that before the accident claimant was a real 
 
            good welder and hard worker.  He said claimant could run at 
 
            a 250 percent rate of the job while others couldn't do 70 
 
            percent.  He said claimant could do things faster than 
 
            anyone else.  He said he was able to determine this as the 
 
            company put out a list of names and jobs and he could tell 
 
            the percent or rate for a job.
 
            
 
                 Mr. Livezey said that after claimant returned to work 
 
            after his January 28, 1988 injury, he couldn't use his left 
 
            arm at all and that he could pick up a few papers and a pen.  
 
            He said he had to use a sling all the time.  He said he saw 
 
            claimant one time without a sling and that his arm seemed as 
 
            though it had slipped out of the joint.  He said claimant 
 
            used a TENS unit with wires running into the arm.  As to 
 
            joint exhibit 47, the power cable, he said that there is not 
 
            enough tension so that anyone that is pulling out the cable 
 
            would not be injuring oneself.
 
            
 
                 Harry Bolton, the plant manager for defendant employer, 
 
            has worked there since February 1978 except for three years.  
 
            His duties are to operate the plant and the production.  He 
 
            knows claimant and was satisfied with claimant's work and 
 
            said that claimant did what he was asked to do.  He said 
 
            claimant came back to work after his January 28, 1988 injury 
 
            and worked until his layoff in the fall of 1989.
 
            
 
                 Mr. Bolton said that some people were called back to 
 
            the second shift but that seniority allowed them to stay 
 
            working.  He said no supervisors worked the second shift but 
 
            said claimant is still in a good status to be hired back and 
 
            knew of no reason claimant would not be hired back unless 
 
            claimant felt he couldn't do the job.  He acknowledged that 
 
            defendants did a pre-employment physical in January 1988 and 
 
            the company's doctor did all the pre-employment physicals 
 
            and they have been satisfied with his examinations.  Mr. 
 
            Bolton said that when claimant returned to work in February 
 
            1988, he was able to do the foreman work but was not able to 
 
            do the work he was doing on January 28, 1988, at which time 
 
            he was a welder and not a foreman.
 
            
 
                 Ronald R. Reschly, M.D., an orthopedic surgeon, 
 
            testified through his deposition on March 8, 1992 (Jt. Ex. 
 
            17).  The doctor referred to the various other medical 
 
            reports from other doctors and records he had.  He said he 
 
            first saw claimant on January 29, 1988, in reference to his 
 
            January 28, 1988 work accident (Jt. Ex. 17, p. 13).  The 
 
            doctor indicated that claimant had purplishness of the hand, 
 
            that he was tender in the shoulder area, and that overall he 
 
            was impressed with the severity of claimant's pain.  He 
 
            indicated that claimant was holding his shoulder very 
 
            protectively and that he placed him in a sling.  On 
 
            claimant's October 21, 1988 visit, the doctor noticed 
 
            claimant still had a clawing of his middle fingers and had 
 
            weakness at various places.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 The doctor also referred to and read his February 23, 
 
            1988 letter in which he mentioned that he could push 
 
            claimant's shoulder back and forth about one-half inch each 
 
            stretch, both interior and posterior direction.  He felt 
 
            that claimant's mechanism of injury sounded as if it was the 
 
            brachial plexus (Jt. Ex. 17, pp. 19-21).  The doctor also 
 
            labeled claimant's condition as reflex sympathy dystrophy 
 
            (Jt. Ex. 17, p. 24).  The doctor indicated he didn't think 
 
            the claimant ever got past the pain syndrome that he is 
 
            labeling reflex sympathetic dystrophy.  He also believed the 
 
            brachial plexus manifested itself in the clawing of the 
 
            ulnar side of claimant's fingers (Jt. Ex. 17, p. 25).  The 
 
            doctor referred to his October 21, 1988 letter and a 
 
            notation thereon and a November 18, 1988 notation referring 
 
            to his 10 percent impairment and later his withdrawing of 
 
            that.  The doctor indicated he ultimately never did have an 
 
            opportunity to do a complete impairment rating including the 
 
            range of motion on the claimant.  He indicated he is pretty 
 
            much referring that to a Dr. Grundberg and a Dr. Taylor.  It 
 
            is obvious to the undersigned that the doctor felt there was 
 
            significantly more impairment than he originally thought or 
 
            originally stated in October 1988, and that was a very 
 
            incomplete rating at that time.  It is obvious to the 
 
            undersigned that the doctor felt claimant had poor or little 
 
            use of his left shoulder but that he was fortunate to have 
 
            had the job of supervisor which did not require the use of 
 
            his left shoulder like other work he would otherwise have to 
 
            do in normal welding or similar jobs.  The doctor felt that 
 
            claimant will always have some degree of chronic pain when 
 
            asked as far as prognosis of claimant's reflex sympathetic 
 
            dystrophy.  The doctor indicated that repetitive or 
 
            prolonged usage about the shoulder both in terms of strength 
 
            and range of motion would have an effect on claimant's 
 
            shoulder (Jt. Ex. 17, pp. 37-38).  He indicated temperature 
 
            exposure, cold and emotional stress can affect claimant's 
 
            condition to a certain extent (Jt. Ex. 17, p. 39).  The 
 
            doctor indicated that if claimant just let his arm hang 
 
            there and do nothing with it, he would be in a lot worse 
 
            trouble than he is now.  He also indicated that there is a 
 
            fine line between not using enough and being forced to use 
 
            it too much.  The doctor indicated any job that requires his 
 
            repetitive strong usage above the shoulder, especially at 
 
            extremes of motion, is going to be a problem for the 
 
            claimant (Jt. Ex. 17, p. 40).
 
            
 
                 The doctor was asked as to claimant's January 1977 car 
 
            accident.  The doctor indicated that this had no direct 
 
            relationship to his January 28, 1988 injury and that as far 
 
            as he was concerned in looking at the records, claimant's 
 
            condition completely cleared up from any 1977 accident (Jt. 
 
            Ex. 17, p. 46).  The doctor also indicated that claimant is 
 
            fair, a pusher and hard worker and that given the amount of 
 
            pain claimant had a lot of the people might not have been 
 
            making it back to work (Jt. Ex. 17, p. 47).
 
            
 
                 The doctor was asked about claimant's December 16, 1988 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            injury in which he fell when he was going over a fence and 
 
            lost his balance.  Basically, the doctor indicated that this 
 
            was not a new injury and that he had gotten over this, was 
 
            no big deal and claimant had got back to where he was when 
 
            he last saw him on November 18, 1988 (Jt. Ex. 17, pp. 49-
 
            50).
 
            
 
                 The doctor also was asked regarding claimant's April 
 
            25, 1989 injury in which claimant was pulling a spring liner 
 
            when he felt his left shoulder pop.  The doctor indicated 
 
            that it was a temporary aggravation and that claimant 
 
            basically got back to the status he was in when he saw him 
 
            on November 18, 1988.
 
            
 
                 The doctor indicated that claimant should be able to do 
 
            the supervisory job indefinitely and that in terms of 
 
            welding, he indicated he could probably weld small parts if 
 
            he only had to use his left arm to stabilize the parts and 
 
            didn't have to use it excessively, such as writing on a 
 
            piece of paper using the left hand to stabilize paper.  He 
 
            also indicated claimant could use the left arm in a 
 
            dependent or hanging down position somewhere between 
 
            occasionally and moderately.  He thought claimant could do a 
 
            sedentary job, supervisory jobs, very light welding jobs on 
 
            a table and/or similar types of jobs, but he did not mean 
 
            lifting repetitively.  He thought if he should have to do 
 
            lifting, it should be restricted to 10 or 15 pounds (Jt. Ex. 
 
            17, pp. 53-54).
 
            
 
                 The doctor acknowledged that the arthrogram taken of 
 
            claimant's shoulder in 1988 did not show any rotator cuff 
 
            and the radiology reports of January 20, 1988 did not show 
 
            any fracture or dislocation nor did it indicate any soft 
 
            tissue or bone or joint abnormalities (Jt. Ex. 17, pp. 57, 
 
            58 and 59).
 
            
 
                 Dr. Reschly acknowledged that after claimant's February 
 
            18, 1988 examination by him, he referred the claimant to Dr. 
 
            Taylor, who has a subspecialty in sports medicine and 
 
            experience in terms of injuries to the knee and the shoulder 
 
            and Dr. Grundberg is certified in the subspecialty of the 
 
            hands and upper extremity (Jt. Ex. 17, p. 62).
 
            
 
                 The doctor was asked as to the EMG test that was done 
 
            on April 7, 1988, and Dr. Taylor's records of March 29, 
 
            1988, regarding claimant's brachial plexus diagnosis.  The 
 
            doctor did understand that the EMG was normal.  The doctor 
 
            was not sure what all that meant in light of the fact that 
 
            prior to the EMG all three of the doctors seemed to 
 
            clinically have the impression that claimant had brachial 
 
            plexus.  The doctor concluded, based on Taylor's and 
 
            Grundberg's exams, that the brachial plexus part of the 
 
            injury was not very severe as it did not indicate anything 
 
            on the EMG (Jt. Ex. 17, p. 67-68).
 
            
 
                 The doctor was extensively questioned on 
 
            cross-examination as to the December 1988 deer incident and 
 
            the April 25, 1989 popping of his shoulder when he was 
 
            pulling wire out of a power cable.  The doctor seemed to 
 
            indicate that claimant was doing pretty well and had good 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            motion prior to the December and April incidents.  The 
 
            doctor seemed to indicate that claimant had pretty much or 
 
            close to a full range of motion prior to those incidents 
 
            (Jt. Ex. 17, p. 91).  Although the doctor's 
 
            cross-examination is confusing in part, it appears that the 
 
            doctor still concluded that whatever aggravation or 
 
            increased pain or symptoms may have occurred after the deer 
 
            incident in December of 1988 and the cable pulling in April 
 
            of 1989, claimant's condition returned to basically the 
 
            condition the doctor noticed in November of 1988 which he 
 
            attributed to the January 28, 1988 work injury.
 
            
 
                 Richard Flint Neiman, M.D., a neurologist, testified 
 
            through his deposition on January 29, 1992, joint exhibit 
 
            18.  Claimant was referred to Dr. Neiman by Doctor Michael 
 
            Durkee regarding an evaluation.  The evaluation occurred on 
 
            June 30, 1989.  The doctor related the history he took and 
 
            indicated at that time that claimant appeared to have a 
 
            claw-like deformity as far as his left hand with 
 
            discoloration from the mid-humerus on down (Jt. Ex. 18, p. 
 
            11).  On July 20, 1989, he thought claimant had a normal EMG 
 
            study of the left upper extremity.  At that time, he thought 
 
            claimant had a reflex sympathetic dystrophy (Jt. Ex. 18, pp. 
 
            12-13).
 
            
 
                 In his testimony, the doctor talked about the 
 
            instability of claimant's shoulder and the multi direction 
 
            that the shoulder could take.  He also indicated that at 
 
            least by February 1990, he felt that the injury was to the 
 
            whole person, the same as indicated by Dr. Robb, rather than 
 
            just to the left upper extremity itself (Jt. Ex. 18, pp. 18-
 
            19).
 
            
 
                 On cross-examination, Dr. Neiman agreed with Robert 
 
            Hayne, M.D., that claimant's MRI of the neck was within 
 
            normal limits, the x-rays of his cervical spine were within 
 
            normal limits, and that claimant could probably continue 
 
            working indefinitely in the supervisory capacity he is 
 
            working.  He also agreed with Dr. Hayne's arthrogram as 
 
            being normal and that the CT scan and myelogram do no show 
 
            any evidence of disc herniation, nerve root compression or 
 
            impingement of the spinal cord.  These are all apparently 
 
            the result of Dr. Hayne's examination from January 1991 (Jt. 
 
            Exs. 34 and 35).  From the time of the doctor's deposition, 
 
            it was obvious he did know about the December 1988 deer 
 
            hunting fall incident or the April 25, 1989 spring pulling 
 
            power cable incident.  They also referred to a May 1988 car 
 
            accident but the parties at the hearing agreed that this was 
 
            another person with the name Henry Kriegel, even though at 
 
            the time of the deposition that apparently had not been 
 
            known by the parties as they asked the doctor about that and 
 
            what effect it would have on claimant's condition.  
 
            Basically, the doctor concluded notwithstanding these other 
 
            incidents, that at least as to the December 1988 incident, 
 
            there is no more than a temporary setback to the shoulder 
 
            itself and the doctor didn't think it was an injury to cause 
 
            much difficulty that claimant is currently having.  It 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            appears the doctor felt that in November of 1988, claimant's 
 
            condition was such that the symptoms he has were related to 
 
            the January 28, 1988 injury and not a deer incident (Jt. Ex. 
 
            18, pp. 47, 56-57).  Later, the doctor testified as to the 
 
            April-May 1989 incident in which claimant was pulling a 
 
            spring liner and felt his shoulder pop.  The doctor felt 
 
            that that popping occurred as a result of claimant's 
 
            shoulder condition from the January 28, 1988 injury and that 
 
            if claimant had a normal shoulder, he would not have had any 
 
            subluxation (Jt. Ex. 18, p. 58).  He felt it was more of an 
 
            aggravation of the reflex sympathetic dystrophy which has 
 
            now disappeared (Jt. Ex. 59).  The doctor stated that he did 
 
            not think the orthopedic doctors feel there is anything 
 
            further to be done regarding the discoloration of claimant's 
 
            shoulder.  He did not believe an operation could correct 
 
            that situation and therefore surgery is not indicated.  He 
 
            indicated claimant might end up developing reflex 
 
            sympathetic dystrophy again and that might require another 
 
            stellate ganglion block (Jt. Ex. 18, p. 63).
 
            
 
                 There are various reports and records of this doctor as 
 
            well as the previous doctor, Dr. Reschly, that are exhibits 
 
            in this case, whether they be deposition exhibits or other 
 
            exhibits.  The undersigned does not feel the necessity of 
 
            going through those individually and referring to them as 
 
            the doctor had them before them in their testimony and 
 
            referred to those.  The undersigned will note that in the 
 
            September 17, 1990 report of Dr. Neiman, the neurologist, 
 
            the final impairment to claimant's body as a whole which 
 
            made up the particular percentages to which he testified in 
 
            his deposition, is set out in deposition exhibit 3, page 18.  
 
            In this report, the doctor opined a grand total of 66 
 
            percent disability of the upper extremity which he 
 
            translated to 40 percent of the whole person.  As indicated 
 
            in his testimony, this is a body as a whole injury.
 
            
 
                 W. John Robb, M.D., an orthopedic surgeon, testified 
 
            through his deposition on February 3, 1992.  He first 
 
            examined claimant on April 10, 1990, and related the history 
 
            that claimant gave him.  He explained the nature of his 
 
            examination and the motions he put claimant through.  He 
 
            concluded that claimant's injury was a compression of the 
 
            brachial plexus, the bundle of nerves that goes from the 
 
            neck underneath the collarbone but over the first rib and 
 
            the force from above jammed the shoulder girdle downward 
 
            compressing these nerves against the first rib.  He also 
 
            referred to claimant's sympathetic dystrophy at the time 
 
            (Jt. Ex. 19, pp. 11-13).
 
            
 
                 Dr. Robb opined that claimant had a severe compression 
 
            of the neurovascular structures, which is a brachial plexus 
 
            and adjacent vessels of the left shoulder, complicated by a 
 
            secondary reflex sympathetic dystrophy, and a subluxation of 
 
            the left scapulo-humero joint secondary to muscle weakness 
 
            as a result of the January 28, 1988 injury (Jt. Ex. 19, p. 
 
            17).  The doctor then opined that claimant had a 28 percent 
 
            body as a whole impairment (Jt. Ex. 19, p. 22).  The doctor 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            indicated that in terms of physical labor, claimant would be 
 
            limited to the use of his lower extremities and right arm 
 
            and will have very limited use of his left arm and left hand 
 
            (Jt. Ex. 19, p. 23).  On cross-examination, the doctor 
 
            acknowledged that in arriving at his impairment rating, he 
 
            used his own experience and also referred to the Guides, as 
 
            a guide only (Jt. Ex. 19, p. 33).  The doctor also indicated 
 
            that the incidents of December 1988 and April 25, 1989 were 
 
            only temporary aggravations and not new injuries (Jt. Ex. 
 
            19, p. 34).
 
            
 
                 Robert Hayne, M.D., a neurosurgeon, testified through 
 
            his deposition on September 13, 1991 (Jt. Ex. 20).  He 
 
            initially examined claimant on January 17, 1991, and 
 
            indicated claimant's examination was entirely within the 
 
            normal limits except for the left upper extremity.  The 
 
            doctor testified that he reviewed the MRI study of the neck 
 
            and felt that was within normal limits.  The electromyogram 
 
            he ordered of the left upper extremity showed no diagnostic 
 
            abnormalities present on the electromyogram or nerve 
 
            conduction velocity studies and the x-rays of his cervical 
 
            spine were within normal limits (Jt. Ex. 20, pp. 6-7).  
 
            After that visit, the doctor recommended that claimant have 
 
            a surgical myelographic study with possibly an enhanced CT 
 
            scan of the cervical spine which was carried out May 15, 
 
            1991.  He indicated that this showed mild changes of 
 
            spondylosis with some associated ligamentous thickening in 
 
            the cervical spine region, but basically he concluded that 
 
            the myelogram and corresponding CT scan were within 
 
            generally normal limits.  Dr. Hayne felt that these tests 
 
            failed to show any significant pathological condition (Jt. 
 
            Ex. 20, pp. 9-10).  The doctor said a repeat electromyogram 
 
            on June 24, 1991 at Younkers Rehabilitation Hospital showed 
 
            in the left upper extremity there was a mild carpal tunnel 
 
            syndrome and an active left cubital tunnel syndrome (Jt. Ex. 
 
            20, p. 12).  The doctor last saw claimant on July 31, 1991, 
 
            at which time claimant again stated his main trouble was 
 
            with headaches and he also described numbness of the entire 
 
            left upper extremity.  The doctor said the examination 
 
            showed abduction of the left arm to be impaired and the 
 
            strength was 40 to 50 percent of normal strength but said 
 
            this was difficult to evaluate because of pain brought about 
 
            with abduction of the arm.  He felt the strength and 
 
            extension and flexion of the forearm was 50 to 60 percent of 
 
            normal on the left and the grip on the left was 20 percent 
 
            of normal and the effects of the fingers on the left were 30 
 
            percent normal (Jt. Ex. 20, p. 13).
 
            
 
                 The doctor did not feel claimant was in need of any 
 
            surgery for his neck or shoulder problems as of that time, 
 
            nor did he recommend any surgery for claimant's headaches.
 
            
 
                 The doctor opined that claimant's conditions were not 
 
            likely the result of a particular trauma in January 1988 and 
 
            that he did not feel the likelihood was very great that 
 
            claimant had sympathetic dystrophy in the left upper 
 
            extremity (Jt. Ex. 20, pp. 15-16).  The doctor was also 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            unable to come up with any cause of claimant's headaches 
 
            (Jt. Ex. 20, p. 17).
 
            
 
                 The doctor said that in view of claimant continuing to 
 
            work steadily in a supervisory capacity and in view of his 
 
            symptoms remaining more or less with the same intensity, he 
 
            felt claimant could probably continue working indefinitely 
 
            in a supervisory capacity.  The doctor did say the claimant 
 
            did not provide him with any detailed description of his 
 
            supervisory position.  The doctor indicated that it would be 
 
            advisable for claimant to avoid repetitious extension of his 
 
            neck and to avoid lifting weights over 40 pounds or so (Jt. 
 
            Ex. 20, pp. 19-20).
 
            
 
                 The doctor did indicate that the fact that EMG's don't 
 
            show definitely that there is a lesion at a certain level of 
 
            the brachial plexus or the nerves that breaks off does not 
 
            necessarily eliminate the presence of pathological 
 
            involvement of a particular nerve (Jt. Ex. 20, p. 30).  The 
 
            doctor said there is a possibility there exists some injury 
 
            to the brachial plexus from claimant's trauma on January 28, 
 
            but he could not be certain in the absence of abnormalities 
 
            and the various tests that are carried out.  It also appears 
 
            from the doctor's examination that he could not see the 
 
            shoulder sublux in different directions as was indicated on 
 
            a Mayo examination (Jt. Ex. 20, p. 33).  The doctor did 
 
            state that the nature of claimant's injury in January of 
 
            1988 when an endloader fell on claimant's shoulder could 
 
            cause a brachial plexus lesion.  The doctor expected due to 
 
            the nature of claimant's trauma that it would produce a 
 
            brachial plexus injury but in the absence of reflex changes 
 
            and the absence of myographic changes, it would mitigate 
 
            against there being a significant injury to the plexus but 
 
            again he did not rule it out (Jt. Ex. 20, p. 35).
 
            
 
                 The doctor then opined that it is probably more likely 
 
            that claimant did sustain some injury to the brachial plexus 
 
            but he had no explanation assuming the accuracy of the 
 
            neurological findings to account for the deficit (Jt. Ex. 
 
            20, p. 37).
 
            
 
                 The doctor opined that claimant had a 30 to 40 percent 
 
            impairment of the function of the left upper extremity as a 
 
            whole and that that would convert to 18 or 24 percent of the 
 
            body as a whole under the third edition of the AMA Guides.  
 
            The doctor was asked where the brachial plexus is in 
 
            relation to the body and after some back and forth questions 
 
            and answers, the doctor said it was on the shoulder side 
 
            proximal to the upper end of the humerus (Jt. P. 20, p. 44).
 
            
 
                 James B. Paulson, M.D., a specialist in family 
 
            practice, testified through his deposition on April 9, 1992 
 
            (Jt. Ex. 16).  Dr. Paulson was asked concerning claimant's 
 
            pre-employment physical that occurred on January 8, 1988.  
 
            He indicated that Dr. B. J. Wiltfang, who gave the physical, 
 
            is known as one of the toughest physical examiners in terms 
 
            of pre-employment in the area.  He indicated there was no 
 
            evidence of claimant suffering from residual disability from 
 
            any previous injuries (Jt. Ex. 16).  The doctor indicated 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            that he had examined claimant first on January 29, 1988, 
 
            after he had seen Dr. Wiltfang a day earlier.  Dr. Wiltfang 
 
            was apparently out of the office and this is where Dr. 
 
            Paulson, Dr. Wiltfang's partner, saw claimant the next day.  
 
            Dr. Paulson said he sent claimant to an orthopedist because 
 
            claimant appeared to have pain out of proportion of what the 
 
            doctor could physically see.  The doctor later learned from 
 
            the doctor whom he referred claimant, Dr. Reschly, that over 
 
            the course of the last four years he has come to recognize 
 
            claimant's injury to brachial plexus that occurred on 
 
            January 28, 1988, and that Dr. Paulson said he subsequently 
 
            learned about the chronicity of the problem and how 
 
            difficult it is to treat, how wide spread and  bizarre the 
 
            symptoms can be (Jt. Ex. 16, p. 7).  Dr. Paulson said he had 
 
            very minimal experience with this condition.  The doctor 
 
            indicated he thought claimant's post-traumatic migraine 
 
            syndrome headaches and coma-like signs and symptoms were the 
 
            result of his accident of January 28, 1988 (Jt. Ex. 16, p. 
 
            12).  The doctor also concluded that from the reports he 
 
            received from the consultants who saw him, including Dr. 
 
            Gannon, Dr. Neiman, and Dr. Hayne that they felt they were 
 
            looking at some form of brachial plexus injury to the 
 
            shoulder and post-traumatic migraine (Jt. Ex. 16, p. 13).  
 
            This doctor was asked various questions by the attorneys as 
 
            to either comments or reports of other doctors who were 
 
            specialists in the area.  It is obvious from Dr. Paulson's 
 
            deposition that he defers or is not going to contradict what 
 
            other specialists may have said.  The undersigned sees no 
 
            reason to set out herein much of Dr. Paulson's testimony as 
 
            it would appear from the attorneys that they are asking him 
 
            to either agree or disagree or as a non-specialist in the 
 
            area, to judge the correctness or conclusions of a 
 
            specialist.  Again, it is obvious the doctor feels that many 
 
            of these areas should be left to the specialists.
 
            
 
                 The question came up as to whether claimant was 
 
            magnifying his pain symptoms or malingering and, of course, 
 
            Dr. Paulson said anything could be possible.  The doctor 
 
            emphasized that he has seen claimant around the community in 
 
            Grinnell since his January 1988 incident and knows the 
 
            situation.  He observed him out of the corner of his eye.  
 
            He stated that claimant always had his TENS unit on and that 
 
            he has never seen him doing anything with the left arm.  The 
 
            doctor said claimant always appeared to be in an immobile 
 
            form and that he has got his TENS unit on, if not 24 hours a 
 
            day it must be close to it (Jt. Ex. 16, p. 42).
 
            
 
                 The doctor also commented concerning Dr. Hayne's 40 
 
            pound limit with claimant's right and left arm, neck and 
 
            legs.  He indicated that from his way of thinking, claimant 
 
            could not lift 40 pounds using his left arm today.
 
            
 
                 There are many reports and exhibits by various doctors, 
 
            several of whom gave deposition testimony which has already 
 
            been reviewed.  The undersigned believes it is not necessary 
 
            to set out herein some of the doctors' reports or comments 
 
            as the doctors who gave depositions in detail either 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            referred to or stated in their deposition testimony the same 
 
            or similar comments that are reflected in their notes or 
 
            reports, or referred to other doctors' comments and opinions 
 
            that are reflected in the various written exhibits.
 
            
 
                 The main issues in this case is the extent of 
 
            claimant's permanent disability, if he has a permanent 
 
            disability, and entitlement to disability benefits, and, 
 
            whether claimant's injury is to the left upper extremity 
 
            alone or to the body as a whole.
 
            
 
                 The fact that makes this decision more difficult is the 
 
            event that occurred in December of 1988, in which claimant 
 
            fell while crossing a fence while deer hunting, and in May 
 
            of 1989, when he was pulling a spring from a power cable.  
 
            Defendants contend that either or both of these events were 
 
            new injuries which have resulted in claimant's current 
 
            condition.  Claimant contends that these events which 
 
            occurred were at most aggravation of an already existing 
 
            condition and that the accident of January 28, 1988 left 
 
            claimant in such an injured condition that these other 
 
            events were either caused, at least as to the April 1989 
 
            incident, or aggravated the January 28, 1988 injury 
 
            conditions but that claimant's current condition is the 
 
            result and would have existed notwithstanding the December 
 
            1988 and April 1989 incidents.  What adds fuel to the fire 
 
            is that claimant was apparently getting better prior to the 
 
            December 1988 incident.
 
            
 
                 The undersigned is concerned with the disagreement or 
 
            dispute or lack of acknowledgement by certain specialists as 
 
            to the subluxation or lack of subluxation of claimant's 
 
            shoulder.  The undersigned believes that taking the medical 
 
            evidence as a whole, there should not be as much of a 
 
            disagreement or lack of acknowledgement of claimant's 
 
            subluxation or ability to move the shoulder in and out and 
 
            in different directions.  Claimant seemed to indicate that 
 
            on some occasions when tests were given, his shoulder was 
 
            actually held down or pressed into position so that it 
 
            wouldn't pop out.  This would tend to explain the situation 
 
            if that was correct.
 
            
 
                 There is no dispute that an injury arose out of and in 
 
            the course of claimant's employment on January 28, 1988.  
 
            The undersigned believes that the greater weight of medical 
 
            evidence shows that claimant was improving from his January 
 
            28, 1988 injury but still had underlying problems with his 
 
            shoulder and that this problem was a brachial plexus 
 
            condition along with a reflex sympathetic dystrophy.  The 
 
            undersigned finds that claimant's underlying medical 
 
            condition that resulted from the January 28, 1988 injury was 
 
            aggravated by the deer hunting event in December 1988, but 
 
            that this deer hunting incident did not cause claimant's 
 
            current condition and that it was claimant's January 28, 
 
            1988 injury that has resulted in claimant's current 
 
            disability.
 
            
 
                 As to the May 1989 incident in which claimant was 
 
            pulling a spring-wire from the power cable, the undersigned 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            finds that it was the condition that resulted from the 
 
            January 1988 injury that caused claimant to be in such a 
 
            condition that there was a popping of his shoulder that 
 
            occurred in April 1989, but that this was an aggravation and 
 
            was not a new and separate injury which itself caused 
 
            claimant's current condition.  The undersigned could have 
 
            the alternative to determine that claimant's condition is 
 
            the result of claimant's April 25, 1989 work injury.  The 
 
            undersigned believes the greater weight of medical evidence 
 
            shows that that was more of an aggravation and that 
 
            claimant's condition is the result of his January 28, 1988 
 
            work injury.
 
            
 
                 As to whether claimant's injury is to the left upper 
 
            extremity or the body as a whole, the undersigned finds that 
 
            the greater weight of evidence shows that claimant's injury 
 
            is to the shoulder and that area from the shoulder to the 
 
            neck area and that claimant has a body as a whole injury and 
 
            not a scheduled member injury.  It is not uncommon for 
 
            specialists to refer to a body as a whole injury that 
 
            involves a shoulder area as an upper extremity, but in 
 
            looking at the medical testimony and the location of the 
 
            injury and the effect of the injury, it is clear to the 
 
            undersigned that it is into claimant's body as a whole.
 
            
 
                 At the hearing, the undersigned noticed that it was 
 
            very clear that claimant's shoulder was able to be moved in 
 
            different direction and literally moved in and out of what 
 
            appeared to be the shoulder socket and that when the TENS 
 
            unit was turned on, there was muscle movement within the 
 
            shoulder and that the shoulder was less likely to be able to 
 
            be moved around or pulled out of the socket.  The 
 
            undersigned finds that claimant incurred a brachial plexus 
 
            injury as a result of the January 28, 1988 injury and this 
 
            type of injury and condition itself without question is a 
 
            body as a whole injury.  The undersigned finds that the 
 
            greater weight of medical evidence shows that claimant's 
 
            permanent disability and body as a whole injury is causally 
 
            connected to his January 28, 1988 work injury.  There have 
 
            been medical opinions setting claimant's impairment to his 
 
            body as a whole from 18 percent up to 40 percent.  It 
 
            appears undisputed that claimant's ability to use his left 
 
            arm has been severely affected.  The undersigned's personal 
 
            observance supports what the undersigned feels is a greater 
 
            weight of medical evidence that claimant has very little use 
 
            of his left arm, particularly when it comes to being able to 
 
            perform any work with said arm. 
 
            
 
                 The undersigned having causally related a permanent 
 
            disability to claimant's January 28, 1988 work injury, and 
 
            further determining that claimant incurred a body as a whole 
 
            injury, the extent of claimant's industrial disability is 
 
            the next thing to be determined.
 
            
 
                 The record shows that claimant was a very good and 
 
            qualified worker.  Mr. Gray had high praise for the claimant 
 
            and indicated that he was a self-motivated person, worked 
 
            good alone and that not many people could keep up with the 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            claimant at his work.  Mr. Gray agreed with Mr. Harter, who 
 
            is the plant manager who wrote a letter indicating that 
 
            claimant was one of the best and most knowledgeable and 
 
            highly motivated employee in his group.  Mr. Livezey 
 
            testified that claimant could do work faster than anyone and 
 
            could run 250 percent on the job where others couldn't do 70 
 
            percent.
 
            
 
                 Defendant employer tried to accommodate claimant and 
 
            take advantage of his expertise and abilities and allowed 
 
            him to return to work as a supervisor.  It is obvious 
 
            claimant was not at that time able to do his former welder 
 
            job nor is he able to do his former job now.  There is 
 
            testimony from some medical individuals that claimant could 
 
            continue supervising for defendant employer in the capacity 
 
            that he was doing before his layoff in or around August 
 
            1991.  It is also obvious from the evidence, both the 
 
            testimony and written evidence, and personal observation by 
 
            the undersigned that claimant has very limited use of his 
 
            left upper extremity.  The defendant employer was familiar 
 
            with claimant and knew his abilities and, because he had a 
 
            work injury on their premises, tried to accommodate the 
 
            claimant which enabled claimant to do the work as a 
 
            supervisor for them.  It is also evident that another 
 
            employer would not be so gracious or expected to be so 
 
            gracious in accommodating claimant in his condition.  
 
            Claimant has not worked at defendant employer since August 
 
            1991 due to a layoff at the factory.   Shortly, his time 
 
            will run out as far as being able to be recalled.  There is 
 
            no evidence that any recall of claimant to continue working 
 
            will be forthcoming in the near future in considering any 
 
            evidence put in the record by Farmland and yet there is 
 
            still time for recall.  A Mr. Bolton, defendant employer's 
 
            plant manager, indicated claimant is in good status to be 
 
            hired back and knew of no reason claimant would not be hired 
 
            back.  The fact is he has not been hired back and there is 
 
            no known intent to do so in this record.
 
            
 
                 Defendant employer has provided no rehabilitation for 
 
            the claimant since he has been laid off in September 1991.  
 
            It would appear that claimant does have some transferable 
 
            skills but they are in the area of welding which he is not 
 
            able to do but that his expertise is such that he can 
 
            motivate and can supervise individuals.  The record 
 
            indicates that he did that for defendant employer until he 
 
            was laid off.  It is obvious defendant employer recognized 
 
            his expertise.  It is also clear from the record and from 
 
            personal observance of the undersigned that claimant is not 
 
            able to use his left arm or hand to do welding.  He would be 
 
            able to supervise.  Claimant has made searches for work 
 
            since his layoff (Jt. Ex. 37).  It is understandable, just 
 
            by personal observance of the claimant and the way he holds 
 
            and must hold his left arm, and looking at the clawing 
 
            condition of his hand and seeing the TENS unit which has 
 
            wires running up to the shoulder, that it would seem 
 
            fruitless for this claimant to approach an employer wanting 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            to perform work for which he has transferable skills and 
 
            expecting to be hired under those conditions unless they 
 
            were so desperate that they would take anyone.  Knowing 
 
            claimant's problems and his qualifications, he would most 
 
            likely only be considered as a supervisor or foreman in 
 
            which he would be supervising or assigning jobs.  This job 
 
            usually is handled by someone who has seniority or has risen 
 
            up through the ranks and it would not be as possible for a 
 
            company to hire this claimant with his condition over 
 
            someone who would be of higher seniority within a plant.  
 
            The most likely person to hire or rehire this claimant would 
 
            be the defendant employer who knows his qualifications and 
 
            who was responsible for his injury.  They have something at 
 
            stake which would motivate and encourage the defendant 
 
            employer to take this claimant back.
 
            
 
                 The undersigned believes that this claimant desires to 
 
            work and would immediately accept an opportunity to return 
 
            back to the defendant employer and doing what he was doing 
 
            before his layoff which would take advantage of his 
 
            expertise and skills and perform a valuable service for this 
 
            employer.
 
            
 
                 The undersigned is torn between the fact that it would 
 
            appear from the total record that this claimant is now 
 
            unemployable in his present condition and, thereby, being 
 
            totally disabled.  Likewise, there is still time for recall 
 
            of defendant employer at which time this claimant could be 
 
            placed in a supervisory capacity performing valuable work 
 
            which would be valuable to the defendant employer and would 
 
            enable this claimant to make something of his life and to 
 
            turn his life around from this severe injury.  In 
 
            determining claimant to be totally disabled could leave no 
 
            incentive to the defendant employer and would most likely 
 
            hamper the claimant's motivation and desire to return to 
 
            work.  As long as there is this spark of hope of returning 
 
            during this recall period, and knowing that the claimant has 
 
            a review-reopening opportunity if, in fact, he is not called 
 
            back within the recall period, and, also realizing the 
 
            defendant employer has review-reopening rights if they put 
 
            the claimant back to the supervisory job, the undersigned 
 
            feels that taking into consideration all those other factors 
 
            in determining industrial disability, namely, claimant's 
 
            age, past and present medical history, employment history, 
 
            transferable skills, nature and location of injury, 
 
            intelligence, permanent impairment, claimant certainly has a 
 
            substantial loss of earning capacity and has incurred an 80 
 
            percent industrial disability.  Claimant is entitled to 400 
 
            weeks of permanent partial disability benefits at the rate 
 
            of $234.76 beginning February 8, 1988.
 
            
 
                 As to the 85.27 issue, the issue being causal 
 
            connection and payment of mileage, since the undersigned has 
 
            found causal connection, the defendants are responsible for 
 
            claimant's medical bills and the mileage incurred in 
 
            relation to those medical services received.
 
            
 
                 As to the 85.38(s) issue in which defendants want 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            credit for $4,920.65, which amount was paid by the 
 
            nonoccupational health carrier, defendants shall receive 
 
            credit for that amount but that does not resolve any issue 
 
            of subrogation that may be between the defendant insurance 
 
            carrier and the nonoccupational health insurance carrier.  
 
            Defendant employer is to hold claimant harmless from any 
 
            obligation or liability on any medical bill that has been 
 
            incurred as a result of claimant's January 28, 1988 injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 28, 
 
            1988, 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).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 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 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury that arose out of and in 
 
            the course of his employment on January 28, 1988, which 
 
            caused claimant to incur a substantial impairment to his 
 
            body as a whole and certain restrictions and limitations.
 
            
 
                 Claimant's December 16, 1988 incident in which he fell 
 
            did not result in or cause claimant's current disability or 
 
            impairment but was an incident that temporarily aggravated 
 
            claimant's conditions that existed as a result of his 
 
            January 28, 1988 work injury.
 
            
 
                 Claimant's April 25, 1989 incident at work in which he 
 
            was pulling a spring-wire from a power cable was not a 
 
            separate injury which caused claimant's current condition 
 
            but was a temporary aggravation.  Said aggravation was the 
 
            result of claimant's condition that was caused by his 
 
            January 28, 1988 work injury.
 
            
 
                 Defendants are responsible for payment of claimant's 
 
            medical bills and medical mileage incurred as a result of 
 
            his January 28, 1988 work injury.
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            
 
                 Defendants are to be given credit for the $4,920.65 
 
            paid by a nonoccupational health carrier but that defendants 
 
            are to hold claimant harmless from any obligation concerning 
 
            that amount.
 
            
 
                 Claimant's January 28, 1988 work injury caused claimant 
 
            to incur an 80 percent industrial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant four hundred (400) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-four and 76/100 dollars ($234.76) 
 
            beginning February 8, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid no permanent partial disability benefits and only paid 
 
            healing period which was stipulated to by the parties.
 
            
 
                 That defendants shall pay all of claimant's medical 
 
            bills and medical mileage expenses incurred as a result of 
 
            his January 28, 1988 work injury and shall receive credit 
 
            for the four thousand nine hundred twenty and 65/100 dollars 
 
            ($4,920.65) paid by a nonoccupational health carrier under 
 
            provisions of 85.38(2), but shall hold claimant harmless 
 
            from any liability concerning this sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Paul J McAndrew
 
            Attorney at Law
 
            122 S Linn St
 
            Iowa City IA 52240
 
            
 
            Mr Cecil L Goettsch
 
            Mr D Brian Scieszinski
 
            Attorneys at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1108; 1803; 1803.1
 
                                                  5-2503; 5-1700
 
                                                  Filed July 28, 1992
 
                                                  Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HENRY E. KRIEGEL, JR.,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 875464
 
            FARMHAND, INC.,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MUTUAL LIABILITY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Found claimant has a work injury resulting in a body as a 
 
            whole injury rather than a left upper extremity-scheduled 
 
            member injury.
 
            
 
            1803; 1108
 
            Found claimant's work injury caused an 80% industrial 
 
            disability.  Claimant is a 42-year-old high school dropout.  
 
            He is currently unemployable and subject to recall in next 
 
            approximate one month.  If recalled, he could only do 
 
            supervisory work but could not be a welder doing the actual 
 
            welding that he was doing at the time of injury.  Claimant 
 
            was a very experienced welder before his injury.  He has 
 
            little use of his left arm and hand.  His shoulder can be 
 
            pulled in and out of the socket without a TENS unit with 
 
            wires to his shoulder.
 
            
 
            5-2503
 
            Found claimant entitled to medical benefits and mileage.
 
            
 
            5-1700
 
            Defendants entitled to medical credit under 85.38(2), but 
 
            are to hold claimant harmless from any liability thereon as 
 
            to third party.