BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         ANNA MUSGROVE, 
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                 File No. 876801
 
         GLENWOOD STATE HOSPITAL  
 
         SCHOOL,   
 
                                                 A P P E A L
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         STATE OF IOWA, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 5, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of July, 1992.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 9998
 
                                                 Filed July 29, 1992
 
                                                 Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ANNA MUSGROVE, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 876801
 
            GLENWOOD STATE HOSPITAL  
 
            SCHOOL,   
 
                                                 A P P E A L
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            5, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANNA MUSGROVE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 876801
 
                                          :
 
            GLENWOOD STATE HOSPITAL       :      A R B I T R A T I O N
 
            SCHOOL,                       :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Anna 
 
            Musgrove against her former employer, Glenwood State 
 
            Hospital School, wherein she seeks compensation for 
 
            permanent disability.  The primary issue to be determined is 
 
            determination of her entitlement to compensation for 
 
            permanent disability, whether it be partial or total.  She 
 
            asserts the odd-lot doctrine.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on October 24, 1990.  The record consists of testimony 
 
            from Anna Musgrove, James Musgrove, Okalona George, David 
 
            Jennings and jointly offered exhibits 1 through 31, 33 and 
 
            34.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Anna Musgrove is a 40-year-old married woman who lives 
 
            at Glenwood, Iowa.  She obtained a GED after leaving high 
 
            school.  She took one year of a two-year training course in 
 
            computer programming approximately ten years ago.  She has 
 
            not maintained any skills in that field.
 
            
 
                 Anna's work history includes work as a carhop, 
 
            electrical wiring on an assembly line, grocery store clerk, 
 
            cocktail waitress, packinghouse work and work as a resident 
 
            treatment worker in a private nursing home.  She commenced 
 
            employment at the Glenwood State Hospital School in 1982.  
 
            Claimant feels that she is unable to perform in any of those 
 
            positions in view of her current physical condition.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant worked as a recreation aide at Glenwood.  The 
 
            job required handling of patients.  On February 15, 1988, 
 
            she was pushed by a patient backward into a room divider 
 
            wall, striking her back.  She immediately reported the 
 
            incident and reported that it caused pain in her back and 
 
            leg [exhibit 31(c)].  She sought medical care from her 
 
            family physician, Robert K. Fryzek, M.D.  When his 
 
            conservative treatment was unsuccessful at resolving her 
 
            symptoms, he referred her to Maurice P. Margules, M.D., a 
 
            Council Bluffs neurosurgeon (exhibit 20).
 
            
 
                 Dr. Margules conducted appropriate diagnostic tests, 
 
            diagnosed her as having a midline disc herniation at the 
 
            L5-S1 level of her spine and performed surgery on March 8, 
 
            1988 (exhibits 21 through 24).
 
            
 
                 She was released to resume light-duty work in July 1988 
 
            and did so for approximately six weeks.  During that 
 
            six-week period, her symptoms returned and her condition 
 
            worsened.  The symptoms which had initially affected her 
 
            left leg now affected her right leg.  Dr. Margules had 
 
            retired and referred her to Daniel L. McKinney, M.D., an 
 
            Omaha, Nebraska neurosurgeon.  Tests were again conducted 
 
            and further disc herniation at the same spinal level was 
 
            identified.  Dr. McKinney performed disc excision surgery on 
 
            October 12, 1988 (exhibits 14 through 16).
 
            
 
                 On May 9, 1989, Dr. McKinney reported that claimant was 
 
            continuing to make slow, gradual improvement, but that she 
 
            could be employed at light duty with restrictions.  The 
 
            restrictions he recommended were avoidance of lifting 
 
            greater than 20 pounds, sitting for more than 30 minutes, 
 
            avoidance of frequent bending and avoidance of standing or 
 
            walking for more than two hours at a time (exhibit 11).  On 
 
            June 2, 1989, claimant declined to apply for a position as a 
 
            computer operator because she did not have the physical 
 
            capacity to perform the lifting or continued sitting 
 
            required for the position (exhibit 26).  On August 21, 1989, 
 
            the employer declined claimant's requested medical leave of 
 
            absence without pay and in effect terminated her employment 
 
            (exhibit 28).
 
            
 
                 In a report dated August 23, 1989, Dr. McKinney stated 
 
            that he anticipated claimant would achieve maximum medical 
 
            recovery in October 1989 and that she would have a 15 
 
            percent permanent impairment as a result of the injury 
 
            (exhibit 10).  He continued to express that same impairment 
 
            rating until November 3, 1989 when he placed the rating at 
 
            20 percent.  In that same report, he indicates that he last 
 
            examined her on October 25, 1989, that she had improved, but 
 
            that she remained disabled from her previous work.  He 
 
            stated that she is totally disabled for work at the present 
 
            time, but that he would not comment on whether that 
 
            situation would be permanent (exhibit 1).
 
            
 
                 On November 1, 1989, a report was issued by a counselor 
 
            with the Division of Vocational Rehabilitation Services of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            the Iowa Department of Education.  The report indicates that 
 
            claimant had applied for services, but that the services 
 
            were denied because the counselor did not feel that the 
 
            agency would be able to provide sufficient services to 
 
            enable claimant to find competitive employment (exhibit 9).
 
            
 
                 In January 1990, claimant was evaluated by Midlands 
 
            Rehabilitation Consultants, Inc.  The report which was 
 
            issued indicates that claimant was presently unable to hold 
 
            any job due to her inability to be reliable in attending 
 
            work in view of her unresolved pain.  The report states that 
 
            she would need a special job which would enable her to sit 
 
            and stand alternatively and an understanding employer.  The 
 
            counselor also reported that she had potential for sedentary 
 
            work (exhibit 8).
 
            
 
                 In a report served September 6, 1990, vocational 
 
            consultant Kent Jayne expressed the opinion that claimant is 
 
            employable and has access to 23,715 jobs in the 
 
            Omaha-Council Bluffs area.  He stated that, prior to her 
 
            injury, she had access to 31,112 such jobs.  Jayne noted 
 
            that the median weekly wage of those remaining jobs was 
 
            $320.70 and that the hourly earnings were $6.45 per hour in 
 
            comparison to the $8.32 per hour she had earned at Glenwood.  
 
            Jayne noted that she was currently released only for 
 
            part-time work (exhibit 6).  He noted her restrictions to be 
 
            that she could sit for up to two hours at a time and for 4-6 
 
            hours during an eight-hour work day.  He also noted that she 
 
            could stand or walk for up to two hours at a time and for 
 
            4-6 hours through an eight-hour work day.  Jayne listed nine 
 
            positions which had openings within the year ending March 
 
            31, 1990 which he felt claimant could possibly perform if 
 
            given on-the-job training.
 
            
 
                 Jayne opined that claimant's present vocational 
 
            impairment due to her physical restrictions is 26-34 percent 
 
            at her current skill level, but that it could be reduced to 
 
            10 or 15 percent if she were to complete training in 
 
            computer programming (exhibit 6).  Jayne made no effort to 
 
            locate any job openings or perform any placement activities 
 
            for claimant.
 
            
 
                 Shortly prior to hearing, claimant was evaluated at the 
 
            University of Nebraska Pain Management Center and found to 
 
            be a good candidate for entry into the program (exhibits 4 
 
            and 5).
 
            
 
                 When testifying, claimant related that her symptoms 
 
            have improved during the previous year.  She stated that on 
 
            a good day she can perform housework or bake.  On a bad day, 
 
            she is able to do nothing.  She had not entered the pain 
 
            management center at the time of hearing, but was scheduled 
 
            to enter the program shortly following hearing.
 
            
 
                 Evidence from David Jennings and Okalona George 
 
            establishes that claimant was a good employee at Glenwood 
 
            who did her job and was seldom absent prior to this injury.  
 
            Both also confirmed that claimant appears to be in pain 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            since the injury.  Testimony from Okalona George and James 
 
            Musgrove confirms that claimant does not perform very much 
 
            of her housework and that she has assistance from her 
 
            children for many activities.
 
            
 
                 This case was heard in October 1990, approximately one 
 
            year after the time claimant was last seen by Dr. McKinney.  
 
            There is no evidence of any change in her physical condition 
 
            since that time, other than from her own testimony which 
 
            states that she has improved somewhat, but is still unable 
 
            to function on a regular, recurring basis.  The evidence 
 
            from Dr. McKinney, Midland Rehabilitation Consultants and 
 
            the Iowa Division of Vocational Rehabilitation is found to 
 
            be correct in concluding that claimant is not employable at 
 
            the current time.  Claimant is still undergoing treatment in 
 
            the form of the pain center program.  Its results cannot be 
 
            predicted.
 
            
 
                                conclusions of law
 
            
 
                 While the parties requested a determination of 
 
            permanency in the case, there is also an issue with regard 
 
            to whether the healing period has ended.  It is readily 
 
            apparent that Anna Musgrove has sustained a substantial 
 
            degree of permanent disability as a result of her injury.  
 
            She has obtained Social Security disability benefits.  
 
            Evidence exists which would tend to indicate that her 
 
            recuperation has not been completed, despite the evidence 
 
            from Dr. McKinney which placed the maximum medical recovery 
 
            as ending in October 1989.  His most recent report, exhibit 
 
            1, declines to state that her status of being totally 
 
            disabled from work is permanent.  Her own testimony relates 
 
            that she has improved somewhat.  Evidence from vocational 
 
            consultants indicates that pain management is a substantial 
 
            factor in her lack of employability.  It is specifically 
 
            noted that the nature of her injury and the general activity 
 
            restrictions which appear in the record would not normally 
 
            be considered to be totally disabling.  Claimant does seem 
 
            to have the intellectual capacity for retraining.  The 
 
            concept of permanency does not necessarily embrace the 
 
            concept of absolute perpetuity.  Rather, it means something 
 
            which is expected to continue for an indefinite and 
 
            undeterminable period.  Wallace v. Brotherhood, 230 Iowa 
 
            1127, 300 N.W. 322 (1941).  In view of that definition, 
 
            claimant's current state of total disability is determined 
 
            to be permanent, despite the fact that she might improve 
 
            either on her own or through a pain management program.
 
            
 
                 It is clear that claimant is totally disabled as no one 
 
            has suggested any job in existence which she might be able 
 
            to obtain.  The fact that there were some job openings which 
 
            might have been within her capabilities is no indication 
 
            that she could have had a reasonable chance at successfully 
 
            competing to obtain any of those jobs.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980); Sunbeam Corp. v. 
 
            Bates, 271 Ark. 385, 609 S.W.2d 102 (App. 1980); Army & Air 
 
            Force Exchange Serv. v. Neuman, 278 F. Supp. 865 (W. D. La. 
 
            1967).
 
            
 
                 Claimant contends that she is permanently and totally 
 
            disabled.  Total disability under compensation law is not 
 
            utter and abject helplessness.  The test of total disability 
 
            in workers' compensation has been long established and may 
 
            be summarized as follows:  When the combination of the 
 
            factors considered in determining industrial disability 
 
            precludes the worker from obtaining regular employment in 
 
            which he can earn a living for himself, his disability is 
 
            total.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 
 
            (Iowa 1985); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 
 
            192 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 
 
            587, 594, 258 N.W. 899, 902 (1935).
 
            
 
                 Claimant asserts that she is an odd-lot employee and 
 
            should benefit from the odd-lot doctrine.  That doctrine, as 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            defined in Larson's Workmen's Compensation Law and most 
 
            judicial precedents, is a reference to that group of 
 
            employees who have sufficient disablement that regular work 
 
            is not continually available to them in the competitive 
 
            labor market, although they can sometimes find temporary 
 
            work or earn some wages under limited circumstances.  Mata 
 
            v. W. Valley Packing, 462 N.W.2d 869, 873 (Neb. 1990).  This 
 
            agency has adopted a variation of the odd-lot rule by 
 
            requiring an employee to make a reasonable effort to secure 
 
            employment as the only way of making a prima facie showing 
 
            of total disability, rather than as merely one of the ways 
 
            of making such a showing.  Emshoff v. Petroleum Transp. 
 
            Services, file number 753723 (App. Decn., March 21, 1987); 
 
            McClellan v. Midwest Biscuit Co., file number 802020 (App. 
 
            Decn., September 29, 1989).  This claimant's efforts to find 
 
            employment are not sufficient to characterize her as an 
 
            odd-lot employee under the construction adopted by this 
 
            agency.  The evidence in the record from Dr. McKinney and 
 
            the vocational consultants other than Kent Jayne would 
 
            certainly be sufficient to make a prima facie showing of 
 
            total disability under the judicial definition for an 
 
            odd-lot employee.  In this case, however, it is not 
 
            necessary to rely upon the burden-shifting provisions of the 
 
            odd-lot doctrine.  Anna Musgrove, as she appeared at the 
 
            time of hearing, was not capable of engaging in competitive, 
 
            gainful employment and it appeared that her status of total 
 
            disability would continue indefinitely.  She is therefore 
 
            entitled to recover benefits for permanent total disability 
 
            under the provisions of Iowa Code section 85.34(3).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Anna 
 
            Musgrove weekly compensation for permanent total disability 
 
            at the stipulated rate of two hundred twenty-one and 66/100 
 
            dollars ($221.66) per week commencing February 15, 1988 to 
 
            the date of this decision and continuing thereafter for so 
 
            long as she remains totally disabled.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Ms. Eleanor E. Lynn
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1804; 5-4100
 
                           Filed February 5, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ANNA MUSGROVE, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 876801
 
                      :
 
            GLENWOOD STATE HOSPITAL  :      A R B I T R A T I O N
 
            SCHOOL,   :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1804; 5-4100
 
            Odd-lot doctrine asserted but not necessary to apply in 
 
            awarding permanent total disability to 40-year-old woman 
 
            whose doctor characterized her as totally disabled, whom the 
 
            employer had terminated and for whom vocational consultants 
 
            had found no bona fide job opportunities.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                       :
 
            CHARLES MEEKS,  :
 
                       :
 
                 Claimant,  :
 
                       :   File Nos. 876894 930535
 
            vs.        :      944018 966544 966545
 
                       :      966546 966547
 
            FIRESTONE TIRE AND RUBBER CO., :
 
                       :        A P P E A L
 
                 Employer,  :
 
                       :      D E C I S I O N
 
            and        :
 
                       :
 
            CIGNA INSURANCE,     :
 
                       :
 
                 Insurance Carrier,   :
 
                 Defendants.     :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            
 
                 Defendants' appeal and claimant's cross-appeals from an 
 
            arbitration decision awarding claimant, in total, 68 percent 
 
            permanent partial disability benefits.  
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; and joint exhibits 1 through 28.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Defendants state the issues on appeal as:
 
            
 
                 1.  The record fails to support a finding that claimant 
 
            sustained a personal injury which arose out of and in the 
 
            course of his employment with Firestone on March 13, 1989, 
 
            April 10, 1990, and October 1, 1990; 
 
            
 
                 2.  The record fails to support a finding that 
 
            claimant's preexisting degenerative hip arthritis was 
 
            materially aggravated by his employment at Firestone;
 
            
 
                 3.  The deputy's decision not to award additional 
 
            permanent partial benefits for low back injuries alleged on 
 
            January 5, 1989, March 13, 1989 and September 15, 1989 is 
 
            supported by the record; and
 
            
 
                 4.  The deputy's award of industrial disability should 
 
            be reduced to reflect the claimant's actual loss of earning 
 
            capacity based on his work related injuries.
 
            
 
                 Claimant states the issue on cross-appeal as:  Whether 
 
            the deputy erred in failing to award additional permanent 
 
            partial disability benefits for claimant's alleged back 
 
            injuries. 
 
            
 
                              review of the evidence
 
            
 
                  The arbitration decision filed April 13, 1992, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            adequately and accurately reflects pertinent evidence and it 
 
            will not be totally reiterated.  The following additional 
 
            pertinent facts are noted, however:  
 
            
 
                 Gary Richard, D.C., treated claimant for back pain from 
 
            approximately November 16, 1981 through approximately 
 
            February 25, 1982.  James Blessman, M.D., noted on April 11, 
 
            1990, that claimant had been hit on his left foot, injuring 
 
            his small toe.  Blessman also noted that, in trying to 
 
            escape that injury, claimant had strained his left hip or 
 
            low back.  Dr. Blessman, on April 20, 1990, noted that 
 
            claimant had degenerative disease of the hip and back.  Vera 
 
            Steward, M.D., interpreted a CAT scan of October 21, 1989, 
 
            as showing a narrow disc space at the L4-5 level with disc 
 
            bulging posturally without edema of the nerve roots.  Facet 
 
            arthritis was noted particularly on the right at L4-5.  M. 
 
            A. Disbro, M.D., interpreted a bone scan of May 16, 1990, as 
 
            showing diffusely increased uptake at the tarsal and 
 
            tarsal/meta-tarsal articulations of the right foot, typical 
 
            for osteoarthritis; as showing increased uptake in the left 
 
            acetabula roof, typical for severe osteoarthritis; and as 
 
            showing increased uptake of the right mid-femur, resulting 
 
            from a remote fracture of the femur.  No other significant 
 
            ossous abnormality was noted.  Minor degenerative uptake was 
 
            apparent in the spine, shoulder, and knees.  
 
            
 
                                 applicable law 
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues in evidence with the following 
 
            additions:
 
            
 
                 A cumulative injury may be found and a cumulative 
 
            injury date may be established even though the claimant has 
 
            relied on a traumatic injury theory and a traumatic injury 
 
            date in claimant's pleadings.  Johnson v. George A. Hormel & 
 
            Company, Appeal Decision, June 21, 1988; McCoy v. Donaldson 
 
            Company, Inc., Appeal Decision, April 28, 1989.  The 
 
            standard for determining whether the defendant has had 
 
            adequate notice of the possibility that the cumulative 
 
            injury doctrine might be relied upon to justify an award of 
 
            benefits is one of fundamental fairness not whether notice 
 
            meets technical rules of common law pleading.  Tassler v. 
 
            Oscar Mayer Foods Corp., 483 N.W.2nd 824 (Iowa 1992).  
 
            
 
                 The appropriate date of injury for purposes of 
 
            computing workers' compensation benefits is the date at 
 
            which disability manifested itself.  Disability is manifest 
 
            on that date when both the fact of injury and the causal 
 
            relationship of the injury to claimant's employment are 
 
            plainly apparent to a reasonable person.  Tassler at 829. 
 
            
 
                 Claimant's ability to identify specific work incidents, 
 
            with or without the need for medical care or need for time 
 
            off work, does not of itself obviate a claim of gradual or 
 
            cumulative injury.  See Tassler, Supra; McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2nd 368 (Iowa 1985).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 
            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the party who will 
 
            benefit from that showing.  See Bearce, 465 N.W.2d at 
 
            536-37; Sumner, 353 N.W.2d at 410-11.  Iowa R. App. P.14(f).
 
            
 
                                     analysis
 
            
 
                 Defendants initially argue that the record does not 
 
            support a finding that claimant sustained an injury arising 
 
            out of and in the course of claimant's employment on March 
 
            13, 1989, April 10, 1990 or October 1, 1990.  Defendants' 
 
            argument apparently relates to the question of whether 
 
            claimant sustained an injury to his left hip on any of the 
 
            stated dates.  It is plain that incidents occurred at work 
 
            on March 13, 1989 and April 10, 1990.  It is plain that 
 
            those incidents impacted on claimant's left hip.  The 
 
            medical history so reflects.  While defendants raise the 
 
            specter of claimant not having been hit in the hip on either 
 
            of the alleged specific incident days, that argument is 
 
            ill-founded.  Defendants have presented no evidence 
 
            suggesting that the maneuvers claimant described on March 
 
            13, 1989 and on April 10, 1990, namely, pushing and flipping 
 
            a large tire and twisting to avoid an object, respectively, 
 
            were not maneuvers that could result in hip and low back 
 
            pain.  Similarly, Dr. Blessman's April 11, 1990 note clearly 
 
            describes a strain to the left hip or low back as the result 
 
            of claimant's trying to escape being hit on the left foot 
 
            the previous day.  Clearly, incidents at work sufficient to 
 
            produce some degree of trauma to claimant's left hip and low 
 
            back occurred on March 13, 1989 and April 10, 1990.  
 
            
 
                 Defendants further argue that claimant's preexisting 
 
            degenerative hip arthritis was not materially aggravated by 
 
            his employment at Firestone either by the incident of March 
 
            13, 1989 or by the incident of April 10, 1990 or 
 
            sufficiently, in total, to result in a cumulative trauma 
 
            with an injury date of October 1, 1990.  We disagree.  Only 
 
            Dr. Dubansky states that claimant's March 13, 1989 incident 
 
            was not a substantial aggravating factor in his left hip 
 
            condition.  Dr. Kimmelman, who actually performed claimant's 
 
            total hip replacement, has opined that claimant's 
 
            progressive degeneration of the left hip after March 13, 
 
            1989 was probably related to the incident of that date.  
 
            Further, Dr. Kimmelman remarks on the rather "marked 
 
            progression of [claimant's] hip disease" after March 13, 
 
            1989, to the time of his total hip replacement.  Drs. Rodney 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Johnson and Richard Johnston both agree that the March 13, 
 
            1989 work incident aggravated claimant's degenerative joint 
 
            disease of the left hip.  Johnson characterizes this as a 
 
            "significant" aggravation.  
 
            
 
                 The radiographic evidence supports a finding that 
 
            significant changes occurred in the left hip from March 1989 
 
            to October 1990.  Dr. Dubansky interpreted an April 26, 1989 
 
            left hip x-ray as showing perhaps a little narrowing of the 
 
            weight bearing area on the left.  Dr. Rodney Johnson 
 
            interpreted May 31, 1990 left hip x-rays as showing 
 
            significant degeneration with complete loss of the joint 
 
            space and cystic changes in both the left acetabulum and 
 
            left femoral head.  Dr. Johnston described June 25, 1990, 
 
            pelvis x-rays as showing rather advanced degenerative 
 
            arthritis of the left hip with loss of the joint space, 
 
            sclerosis of the femoral head and acetabulum and as showing 
 
            some slight narrowing of the joint space on the right.  
 
            Johnson characterized claimant's degenerative arthritis of 
 
            the hips as much worse on the left than on the right.  The 
 
            significantly different interpretations of x-ray taken 
 
            approximately only 13 months apart supports Drs. Kimmelman, 
 
            Johnston and Johnson's opinions that the March 13, 1989 
 
            incident significantly impacted on claimant's left hip 
 
            degenerative arthritis.  
 
            
 
                 Defendants also argue that claimant's left hip 
 
            condition is not a personal injury arising out of and 
 
            causally related to his employment in that claimant's 
 
            degenerative arthritis of the left hip represents a natural 
 
            body process.  That argument is also not well taken.  A 
 
            natural body process of osteoarthritis and degenerative 
 
            joint disease would likely impact similarly throughout the 
 
            body's joints.  The doctors have noted that claimant's left 
 
            hip condition is significantly more severe than his right 
 
            hip condition.  Likewise, claimant's May 16, 1990 bone scan 
 
            did not note significant osteo abnormality but for that 
 
            found in the left hip, and in the previously fractured right 
 
            foot and right mid-femur, and but for minor degenerative 
 
            uptake appearing in the spine, shoulder, and knees.  The 
 
            minor degenerative uptake noted is not significant evidence 
 
            of overall degenerative joint disease.  Its presence does 
 
            not outweigh the greater evidence suggesting a swift 
 
            degeneration of the left hip joint subsequent to the March 
 
            13, 1989 work incident.  
 
            
 
                 Defendants argue that claimant generally worked light 
 
            duty when at work subsequent to March 13, 1989 and that, 
 
            therefore, claimant's work subsequent to that date did not 
 
            contribute to claimant's further left hip degeneration.  
 
            Claimant's light duty activities did involve bending, 
 
            twisting, and walking, however.  These activities, even if 
 
            not constituting heavy labor, might well have contributed to 
 
            further degeneration of an already damaged hip.  
 
            
 
                 Likewise, defendants argue that claimant's nonwork 
 
            activities of square dance lessons and car repair are likely 
 
            causes of any aggravation of his left hip disease.  We note 
 
            that claimant's testimony that he square danced less than 20 
 
            minutes per weekly, two-hour, square dance session was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            credible.  Claimant appeared to have already had significant 
 
            hip pain when, at his family's beckoning, he agreed to take 
 
            the square dance lessons.  He testified that his serious 
 
            pain limited his capacity to participate in the lessons.  We 
 
            do not disagree with defendants that claimant's nonwork car 
 
            repair activities may well have played some role in the 
 
            progression of his left hip degenerative joint disease.  
 
            That fact is insufficient to obviate a finding of causal 
 
            relationship between claimant's work activities and his left 
 
            hip degenerative joint disease and a finding of material 
 
            aggravation of the left hip degenerative joint disease on 
 
            account of the March 13, 1989 incident.  The greater weight 
 
            of medical evidence supports a finding of material 
 
            aggravation of the left hip condition through the incident 
 
            of March 13, 1989 and through claimant's subsequent work 
 
            activities.  The fact that the March 1989 work incident and 
 
            the subsequent work activities were not the sole proximate 
 
            cause of the continued left hip degeneration is insufficient 
 
            to prevent claimant from prevailing on this issue.
 
            
 
                 The evidence supports a finding that claimant's March 
 
            13, 1989 work incident materially aggravated and lit-up his 
 
            left hip condition.  Whether the April 10, 1990 work 
 
            incident played any material role in aggravating claimant's 
 
            left hip condition is less certain.  Medical opinions of 
 
            Drs. Kimmelman, Johnston and Johnson all relate back to the 
 
            March 13, 1989 incident.  X-rays of May 1990, already showed 
 
            significant advancement of claimant's left hip condition 
 
            over his left hip condition in April 1989.  Those facts 
 
            suggest that claimant's hip pain on and surrounding April 
 
            10, 1990, was but a manifestation of claimant's already 
 
            swiftly progressing left hip degeneration and not a 
 
            significant factor, of itself, in the left hip degeneration.  
 
            Likewise, it appears that claimant's leaving work on October 
 
            1, 1990 and having hip surgery on October 15, 1990 was a 
 
            culmination of the process set off by the March 13, 1989 
 
            incident.  Clearly, claimant's disability was manifest as of 
 
            that date.  Both the fact of a significant left hip injury 
 
            and that injury's causal relationship to claimant's 
 
            employment were apparent then.  For that reason, it is found 
 
            that claimant sustained a cumulative trauma injury to his 
 
            hip on or about October 1, 1990.  It is also found that 
 
            while claimant sustained a work injury to his right foot and 
 
            experienced left hip pain on April 10, 1990, that claimant 
 
            did not sustain an injury to his left hip arising out of and 
 
            in the course of his employment on April 10, 1990.  It is 
 
            also found that claimant sustained an injury to his left hip 
 
            arising out of and in the course of his employment on March 
 
            13, 1989, by way of a material aggravation and significant 
 
            lighting up of claimant's preexisting degenerative joint 
 
            disease of the left hip.  However, in that any degree of 
 
            permanent disability remained nonascertainable until the 
 
            injury fully manifested itself on or about October 1, 1990, 
 
            any permanent partial disability related to the left hip 
 
            properly relates to and is payable at the compensation rate 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            applicable to the October 1, 1990 cumulative injury.
 
            
 
                 We next consider the issues raised relative to 
 
            claimant's alleged back injuries.  Initially, defendants 
 
            concede an incident of January 5, 1989 and that claimant 
 
            worked light duty from January 5, 1989 to January 9, 1989.  
 
            Defendants contend that claimant gave no notice of a back 
 
            injury, however, in that the company nurse and the company 
 
            doctor both characterized claimant's condition as a pulled 
 
            right side muscle and not as a back injury.  Defendants 
 
            argument is ill-founded.  Defendants had actual knowledge of 
 
            the January 5, 1989 work injury.  That is all that is 
 
            needful.  That claimant characterized the condition as a low 
 
            back condition while defendant's medical personnel 
 
            characterized the condition as a right side condition is, of 
 
            itself, insufficient to obviate a finding of actual 
 
            knowledge sufficient that the notice defense does not 
 
            prevail.  
 
            
 
                 Defendants do not dispute that claimant had incidents 
 
            involving the back on March 13, 1989 and September 15, 1989.  
 
            Medical records of Dr. Dubansky support claimant's 
 
            contention of low back pain subsequent to March 13, 1989.  
 
            Claimant was off work for two days in September 1989 on 
 
            account of the September 15, 1989 work incident.  The deputy 
 
            assessed each alleged back incident separately and did not 
 
            causally connect the separate alleged back incidents to any 
 
            permanent, work-related back condition.  We disagree.  Dr. 
 
            Jones clearly states that the work incidents of March 13, 
 
            1989 and September 15, 1989 and probably the incident of 
 
            January [5] 1989 were all important causal factors in 
 
            claimant's continued back pain problem.  Jones clearly 
 
            opines that claimant's permanent impairment related to his 
 
            back problem "tied together as a whole" is approximately 7 
 
            to 10 percent under the AMA Guides.  Dr. Jones' opinion is 
 
            consistent with claimant's credible testimony of continuing 
 
            back pain as well as with claimant's having received 
 
            treatment for back pain with company physicians both 
 
            subsequent to March 1989 and to September 15, 1990.  Dr. 
 
            Jones' opinion and the supporting evidence of continuing 
 
            back treatment from at least March 1989 onward is sufficient 
 
            to establish that claimant's series of minor, work related, 
 
            back incidents ultimately culminated in a cumulative injury 
 
            to claimant's low back resulting in a 7 to 10 percent 
 
            permanent partial impairment of the low back.  October 1, 
 
            1990 is established as the date of claimant's cumulative low 
 
            back injury for purposes of computing workers' compensation 
 
            benefits.  Claimant left work on that date with the intent 
 
            of undergoing a total hip replacement immediately subsequent 
 
            to his intended vacation.  Claimant never returned to 
 
            regular, full duty work with the employer subsequent to that 
 
            date.                         
 
            
 
                 We consider the question of whether claimant is 
 
            entitled to additional permanent partial disability benefits 
 
            on account of the causally related low back condition and 
 
            the question of the appropriateness of the percentage of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            permanent partial disability benefits awarded in the 
 
            arbitration decision.  
 
            
 
                 Initially, the deputy assessed permanent partial 
 
            disability benefits both on account of claimant's right 
 
            shoulder injury of December 15, 1987 and on account of 
 
            claimant's right shoulder injury of September 23, 1990, as 
 
            well as separately assessing  permanent partial disability 
 
            on account of claimant's hip condition.  The separate 
 
            assessment of disabilities is inappropriate under the facts 
 
            presented.  Claimant continued to work for the employer and, 
 
            after a period of light duty work and dispite medical 
 
            restrictions regarding the right shoulder, returned to full 
 
            duty, heavy manual labor after the December 15, 1987 right 
 
            shoulder incident.  Claimant was already on light duty on 
 
            account of his hip and back conditions when he reinjured his 
 
            right shoulder on September 23, 1990.  Hence, no 
 
            ascertainable portion of claimant's overall industrial 
 
            disability can be attributed to those work incidents.  See 
 
            Bearce.  Claimant's right shoulder condition, with his low 
 
            back condition and his left hip condition as well as his 
 
            nonwork related right long finger condition, was a factor in 
 
            claimant's ultimate medical retirement from Firestone, 
 
            however.  The right shoulder condition, therefore, can 
 
            appropriately be considered along with the low back and left 
 
            hip condition in assessing claimant's industrial disability 
 
            on account of his inability to continue working for the 
 
            employer on account of his numerous, work related 
 
            conditions.  
 
            
 
                 Initially, claimant is an older worker.  He is not a 
 
            likely candidate for retraining and is not an individual who 
 
            would have continued in the full-time, work force for a 
 
            significant number of years.  Claimant himself testified 
 
            that he hoped to continue working to age 65 only.  Claimant 
 
            was age 58 at hearing.  Claimant has a variety of 
 
            restrictions regarding lifting, bending, and walking.  He 
 
            also has significant restrictions regarding lifting 
 
            maneuvers with his right upper extremity.  Claimant has an 
 
            overall 18 percent permanent partial impairment of the right 
 
            upper extremity on account of his right shoulder condition.  
 
            He has a 20 percent impairment of the left lower extremity 
 
            on account of his left hip condition.  Both these conditions 
 
            are properly assessed as body as a whole injuries.  
 
            Defendants have not disputed such in this appeal.  Under the 
 
            AMA Guides to Evaluation of Permanent Impairment, an 18 
 
            percent impairment of the upper extremity equals an 11 
 
            percent impairment to the whole person; a 20 percent 
 
            impairment to the lower extremity equals an 8 percent 
 
            impairment of the whole person.  Under the combined values 
 
            chart, those figures result in 18 percent whole person 
 
            impairment.  Claimant additionally has 7 to 10 percent 
 
            impairment the whole person on account of his low back 
 
            condition.  Under the combined values chart, combining that 
 
            impairment with the whole person impairment on account of 
 
            the combined value of the right shoulder and left hip 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            impairment results in a whole person impairment of 24 to 26 
 
            percent. 
 
            
 
                  Claimant was a long-term worker for the employer.  
 
            While the employer argues that claimant would have been 
 
            accommodated but for his nonwork related finger condition, 
 
            the record does not support that contention.  Claimant 
 
            clearly retired for medical reasons related to all of his 
 
            conditions including his work related right shoulder, left 
 
            hip and low back conditions.  The employer's representative 
 
            has agreed that work within claimant's restrictions is not 
 
            available to claimant in the employer's plant.  Claimant, on 
 
            the other hand, has elected retirement.  No evidence that 
 
            claimant has sought work with other employers and within his 
 
            restrictions was presented.  Claimant appears to have 
 
            considerable talent as an auto repairer.  While it does not 
 
            appear that an employer in that field would accommodate 
 
            claimant's multiple restrictions, it does appear that 
 
            claimant is content to engage in those activities as he can 
 
            and is not motivated to seek any other employment which 
 
            might be available within his capabilities.  This lack of 
 
            motivation on claimant's part is also a factor in assessing 
 
            claimant's overall industrial loss.  When all factors are 
 
            considered and giving significant weight to claimant's 
 
            overall body as a whole impairment, his serious activity 
 
            restrictions, the employer's failure to accommodate claimant 
 
            and claimant's lack of motivation; it is found that claimant 
 
            has sustained an overall loss of earnings capacity of 60 
 
            percent overall.  
 
            
 
                               conclusions of law 
 
 
 
            Therefore, it is concluded:
 
 
 
            Claimant has established that his injuries of March 13, 
 
 
 
            1989, April 10, 1990 and October 1, 1990 arose out of and in 
 
 
 
            the course of his employment.
 
 
 
            Claimant has established that his cumulative injury of 
 
 
 
            October 1, 1990 is the cause of claimed permanent disability 
 
 
 
            to the left hip, low back and right shoulder with disability 
 
 
 
            manifesting itself after a variety of work incidents and 
 
 
 
            injuries from December 12, 1987 through September 15, 1990.
 
 
 
            Claimant is entitled to permanent partial disability on 
 
 
 
            account of his cumulative injury of October 1, 1990 of 60 
 
 
 
            percent.
 
 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Wherefore, the decision of the deputy is affirmed in part 
 
 
 
            and reversed in part.
 
 
 
            order 
 
            THEREFORE, IT IS ORDERED:
 
            Defendants pay claimant permanent partial disability 
 
            benefits for three hundred (300) weeks at the rate of five 
 
            hunderd four point seventy-one (504.71) with those payments 
 
            to commence March 18, 1991.
 
            Defendants pay claimant healing period or temporary total 
 
            disability benefits at the rate appropriate for the specific 
 
            loss time injury, if any, for the time claimant was off work 
 
            for each loss time injury.
 
            Defendants pay accrued amounts in a lump sum.
 
            Defendants pay interest pursuant to section 85.30.
 
            Defendants pay costs of the appeal, including the costs of 
 
            transcription of the hearing transcript.
 
            Defendants file claim activity reports pursuant to rule 343 
 
            IAC 3.2(2).
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Philip Vonderhaar
 
            Attorney at Law
 
            840 Fifth Ave.
 
            Des Moines, IA  50309-1398
 
            
 
            Mr. Marvin E. Margolin
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Ave.
 
            Des Moines, IA  50312
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      1803; 1806; 1807 
 
                      1100; 1108; 2201; 2206;
 
                      2200; 2209
 
                      Filed January 22, 1993
 
                      Byron K. Orton
 
                      PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                       :
 
            CHARLES MEEKS,  :
 
                       :
 
                 Claimant,  :
 
                       :   File Nos. 876894 930535
 
            vs.        :      944018 966544 966545
 
                       :      966546 966547
 
            FIRESTONE TIRE AND RUBBER CO., :
 
                       :        A P P E A L
 
                 Employer,  :
 
                       :      D E C I S I O N
 
            and        :
 
                       :
 
            CIGNA INSURANCE,     :
 
                       :
 
                 Insurance Carrier,   :
 
                 Defendants.     :
 
            ___________________________________________________________
 
            
 
            1803; 1806
 
            Under Bearce, claimant had no apportionable industrial 
 
            disability from first or second right shoulder injury where 
 
            claimant returned to full duty heavy labor with employer 
 
            after first injury and where claimant was already on light 
 
            duty for work-related back and hip conditions when second 
 
            right shoulder injury occurred.
 
            
 
            1100; 1108; 2201; 2205
 
            Original work injury in April 1989, lit up severe 
 
            degeneration of claimant's left hip.  Condition 
 
            distinguished from regular "wear and tear" from life devoted 
 
            to hard work by fact that claimant did not have like 
 
            degeneration in right hip or throughout body.
 
            
 
            2200; 2209
 
            Under Tassler, claimant's left hip injury actually 
 
            manifested itself on date claimant left work for vacation 
 
            prior to previously scheduled left hip replacement surgery.  
 
            On that date, both the fact of a significant left hip injury 
 
            and its causal relationship to claimant's employment were 
 
            apparent to a reasonable person.
 
            
 
            2209; 1108
 
            Under Tassler and McKeever, series of minor back injuries 
 
            with little or no lost time from each resulted in a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            cumulative back injury.
 
            
 
            1803; 1806; 1807
 
            Where defendants' refused to accommodate claimant on account 
 
            of a nonwork related right finger condition and also on 
 
            account of work related right shoulder, left hip and back 
 
            conditions such that claimant took disability retirement, 
 
            all work conditions could be considered in assessing 
 
            claimant's ultimate industrial disability.
 
            
 
            1803; 1807
 
            Claimant who was restricted from heavy manual labor and who 
 
            had chosen not to seek other work after disability 
 
            retirement from employer awarded 60 percent industrial 
 
            disability.  Deputy affirmed in part; reversed in part.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLENE (RUSHTON) LIPPINCOTT,:
 
                      :
 
                 Claimant, :      File No. 876911
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            IBP, INC.,     :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            Defendant appeals and claimant cross-appeals from an 
 
            arbitration decision awarding claimant 15 percent industrial 
 
            disability.
 
            The record on appeal consists of the transcript of the 
 
            arbitration hearing; claimant's exhibits 1 through 21; and 
 
            defendant's exhibits A through M.  Both parties filed briefs 
 
            on appeal.
 
            issues
 
            The defendant states the issues on appeal are:
 
            1.  Whether the causal relationship of the injury to the 
 
            disability were established to a reasonable degree of 
 
            medical certainty.
 
            2.  Whether the September 14, 1987 injury resulted in 
 
            industrial disability and, if so, the amount thereof.
 
            3.  Whether Claimant's subjective complaints of pain which 
 
            cannot be verified by objective findings are a substitute 
 
            for disability.
 
            4.  Whether the Deputy erred when he excluded hearsay 
 
            evidence concerning an incomplete medical history.
 
            Claimant filed a cross-appeal on the issue of interest.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed September 26, 1989 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            applicable law
 
            The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            analysis
 
            The analysis of the evidence in conjunction with the law in 
 
            the arbitration decision is adopted with the following 
 
            additional analysis.
 
            The first issue to be addressed is whether the deputy erred 
 
            in excluding hearsay evidence.  Pursuant to Iowa Code 
 
            section 17A.14, the rules of evidence are not strictly 
 
            enforced, however, that does not mean that the ordinary 
 
            rules of evidence should be  disregarded at an 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            administrative hearing.  In this case, defendant attempted 
 
            to offer into evidence the contents of a conversation 
 
            between defendant's employee and claimant's physician 
 
            concerning claimant's job restrictions in order to impeach 
 
            an exhibit.  Claimant made a timely objection which was 
 
            sustained.  In reviewing the evidence, the conversation 
 
            between defendant's employee and the physician was written 
 
            down in joint exhibit H.  The document was signed by the 
 
            physician.  The evidence contained in joint exhibit H is 
 
            more reliable and better evidence then the testimony offered 
 
            at the hearing.  The deputy did not err in excluding the 
 
            hearsay evidence.
 
            The final issue to be addressed is the amount of claimant's 
 
            industrial disability as a result of her September 14, 1987 
 
            work injury.
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry Co., 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            Claimant's date of birth is February 16, 1961.  Claimant was 
 
            twenty-six at the time of her September 14, 1987 
 
            work-related injury.  Claimant's injury has less of an 
 
            impact upon her earning capacity than it would an employee 
 
            who has reached middle age.  
 
            The defendant worked with claimant by offering her 
 
            light-duty work which was within her work restrictions.  In 
 
            addition, defendant offered claimant vocational 
 
            rehabilitation.  Claimant  refused to participated in the 
 
            defendant's rehabilitation program and voluntarily quit.
 
            Defendant made great efforts to accommodate claimant's needs 
 
            and should not be penalized for claimant's refusal to accept 
 
            the offered work.  If employers are to be held accountable 
 
            for their failure to accommodate an employee after an 
 
            injury, they should not be held unduly liable when 
 
            acceptable attempts at rehabilitation and reemployment are 
 
            arbitrarily rejected.  Claimant's loss of earning capacity 
 
            or industrial disability is therefore diminished 
 
            accordingly.  Cf. McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
            181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348 (Iowa 1980).
 
            
 
            Johnson v. Chamberlain Mfg. Corporation/Collis Division, I 
 
            Iowa Ind. Comm'r Rep. 166, 168 (1980).
 
            When all relevant factors discussed therein and in the 
 
            arbitration decision are considered, it is determined that 
 
            claimant proved by a preponderance of the evidence an 
 
            industrial disability of five percent.
 
            findings of fact
 
            1.  Claimant was born February 16, 1961. 
 
            2.  Claimant obtained her GED in 1978 or 1979.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            3.  Claimant's employment history consists of work as a 
 
            waitress, assembly of small electrical parts, and line work 
 
            at a turkey processing plant.
 
            4.  Claimant began working for the defendant in 1985.  Her 
 
            job duties at the time of the injury were to inspect the 
 
            head, jowl, and shoulder of carcasses as they passed by her 
 
            on the line and to use a hook and knife to cut out any 
 
            unacceptable portions.
 
            5.  Claimant's injury of September 14, 1987 is an overuse 
 
            syndrome which affects the right side of her upper back, 
 
            right shoulder and the upper right chest.
 
            6.  As a result of the overuse syndrome, claimant should not 
 
            engage in excessive or repetitive use of her right arm.  She 
 
            is also restricted in lifting to 15 pounds.
 
            7.  Claimant has full range of motion and no functional 
 
            impairment, however, she is limited by a loss of strength 
 
            and loss of ability to perform repetitive motions.
 
            8.  Claimant rejected a light-duty stamping job which is 
 
            clearly within her physical restrictions.
 
            9.  Claimant rejected the defendant's offer of vocational 
 
            rehabilitation.
 
            10.  Claimant was not motivated to remain employed with the 
 
            defendant and resigned her employment on July 19, 1989.
 
            11.  Claimant has sustained a five percent loss of earning 
 
            capacity as a result of the overuse syndrome.
 
            conclusions of law
 
            Claimant proved by a preponderance of the evidence a causal 
 
            relationship between her work-related injury on September 
 
            14, 1987 and the disability affecting claimant's right upper 
 
            body and right upper extremity.
 
            Claimant proved by a preponderance of the evidence that she 
 
            sustained a five percent industrial disability as a result 
 
            of her worked related injury on September 14, 1987.
 
            Subjective complaints of pain which are not verified by 
 
            objective evidence are not a substitute for disability.
 
            The deputy did not err in excluding hearsay evidence at the 
 
            arbitration hearing.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendant shall pay unto claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred fourteen and 52/100 dollars ($214.52) per 
 
            week payable commencing April 27, 1988.
 
            That defendant shall pay all accrued weekly benefits in a 
 
            lump sum together with interest from the date each payment 
 
            became due in accordance with Iowa Code section 85.30.
 
            That defendant shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            That defendant shall pay the costs of the appeal, including 
 
            the costs of transcription of the arbitration hearing.
 
            That defendant shall file claim activity reports as 
 
            requested by this agency pursuant rule 343 IAC 3.1. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            632-640 Badgerow Building
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Ms. Marie L. Welsh
 
            Attorney at Law
 
            P.O. Box 515, Dept. #41
 
            Dakota City, NE  68731
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3700, 5-1803
 
            Filed August 30, 1991
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLENE (RUSHTON) LIPPINCOTT,:
 
                      :
 
                 Claimant, :      File No. 876911
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            IBP, INC.,     :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            3700
 
            Held that the deputy did not err in excluding hearsay 
 
            evidence.  Pursuant to Iowa Code section 17A.14, the rules 
 
            of evidence are not strictly enforced, however, that does 
 
            not mean that the ordinary rules of evidence should be 
 
            disregarded at an administrative hearing.  Claimant made a 
 
            timely objection to defendant's attempt to introduce hearsay 
 
            testimony at the hearing which was sustained by the deputy.
 
            
 
            5-1803
 
            In reviewing all the evidence as it pertains to industrial 
 
            disability, it was held that claimant sustained a five 
 
            percent industrial disability.  Claimant was 26 at the time 
 
            she sustained a work-related injury.  Claimant's injury has 
 
            less of an impact upon her earning capacity than it would an 
 
            employee who has reached middle age.  In addition, defendant 
 
            offered claimant light duty work within her restrictions and 
 
            vocational rehabilitation which claimant refused.  Claimant 
 
            voluntarily quit.  Claimant's loss of earning capacity is 
 
            diminished by defendant's attempts to accommodate claimant.  
 
            Johnson v. Chamberlain Mfg. Corporation Collis Division, I 
 
            Iowa Ind. Comm'r Rep. 166 (1980).
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLENE (RUSHTON) LIPPINCOTT,              File No. 876911
 
         
 
              Claimant,                           A R B I T R A T I O N
 
         
 
         vs.                                         D E C I S I O N
 
         
 
         IBP, INC.,                                     F I L E D
 
         
 
              Employer,                                SEP 26 1989
 
              Self-Insured,
 
              Defendant.                           INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Charlene 
 
         Lippincott against IBP, Inc., her former employer.  The case was 
 
         heard and fully submitted at Storm Lake, Iowa on September 13, 
 
         1989.  The record in the proceeding consists of testimony from 
 
         Charlene Lippincott, Lee Ann Kneifl, Dan Heffernan, Jack Novak, 
 
         and John Sebben.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for permanent partial 
 
         disability. She claims that.the disability is to the body as a 
 
         whole and should be evaluated industrially, while the employer 
 
         contends that any permanent partial disability is a scheduled 
 
         member disability of the right arm.
 
         
 
                                 SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Charlene Lippincott is a 28-year-old married lady whose 
 
         education consists of a GED which she obtained in 1978 or 1979 
 
         after dropping out of school following the ninth grade in 1977. 
 
         Claimant described herself as an average student in high school.
 
         
 
              Claimant's employment history consists of work as a 
 
         waitress, assembly of small electrical parts, and line work at a 
 
         turkey processing plant.
 
         
 
              Claimant's employment with IBP, Inc., commenced in 1985.  She 
 
         held various jobs over the years.  On September 14, 1987, she was 
 
         working the head inspection job where her duties were to inspect 
 
         the head, jowls and shoulder of carcasses as they passed by her on 
 
                                                
 
                                                         
 
         the line and to use a hook and knife to cut out any unacceptable 
 
         portions.  Claimant stated that on some carcasses, several pieces 
 
         would be cut off, while on others, there were none to cut off.  
 
         She stated that she held the hook in her left hand and used the 
 
         knife with her right hand.  Claimant stated that at times she had 
 
         to cut off the entire head and jowls and when she did so, she had 
 
         to throw them into a tank which was behind her.  Claimant 
 
         described her physical stature as 5' 7" in height and 135 pounds 
 
         in weight.
 
         
 
              In 1986, claimant developed pain in her neck, pain between 
 
         her shoulder blades, and headaches for which she sought 
 
         chiropractic treatment (exhibit E).  S. A. Steck, D.C., diagnosed 
 
         her condition as displacement of the C5,C6 vertebra with cervical 
 
         cephalgia (exhibit F).  When seen at the Kennedy Chiropractic 
 
         Office in Cherokee, the diagnosis was thoracic strain, 
 
         subluxation of the fifth thoracic vertebra (exhibit G).  Claimant 
 
         stated that the chiropractic treatments completely resolved the 
 
         problem.
 
         
 
              On September 14, 1987, claimant stated that her muscles 
 
         tightened up real bad and would not release.  She demonstrated 
 
         the area of pain as running up the right side of her back, across 
 
         the top of the right shoulder, and down the front right side of 
 
         her chest.  Claimant stated that she went to the nurse, was given 
 
         medication and then returned to the line.  Claimant stated that 
 
         she continued to have the same symptoms and was eventually seen 
 
         by W. E. Erps, M.D., at the Buena Vista Clinic.  She was examined 
 
         and placed on light duty.  The initial diagnosis made by Dr. Erps 
 
         was bursitis of the right shoulder (exhibit 14).  The notes also 
 
         show that claimant complained of numbness affecting her right 
 
         forearm. Claimant stated that nothing done by the doctors at the 
 
         Buena Vista Clinic improved her symptoms.
 
         
 
              Claimant's care was transferred to Brian W. Nelson, M.D.,
 
         a Spirit Lake orthopaedic surgeon.  Dr. Nelson diagnosed claimant 
 
         as having chronic upper thoracic and right rhomboid strain 
 
         (exhibit 3).  She was treated with medication and aggressive 
 
         physical therapy.  She was taken off work for several weeks.  
 
         When she attempted to return to work, her symptoms increased and 
 
         she was then placed on light duty.  Claimant testified that the 
 
         treatment provided by Dr. Nelson had reduced a lot of her pain, 
 
         although not all of it.  Claimant stated that the work which she 
 
         performed, even on a light-duty status, caused as much pain as if 
 
         she had been working on the line.  Claimant stated that the pain 
 
         worsened following the return to work and she developed a burning 
 
         pain on the outside of her right shoulder blade in addition to 
 
         her other symptoms..
 
         
 
              On July 19, 1988, Dr. Nelson reported that claimant has a 
 
         generalized overuse syndrome which is secondary to the activities 
 
         she performed at her work (exhibit 3).  In an office note dated 
 
         August 9, 1988, Dr. Nelson stated:
 
         
 
              She is still having the same types of symptoms that she had 
 
                                                
 
                                                         
 
                   before indicative of a generalized over-use syndrome.  My 
 
              opinion remains about the same.  I think that if she were to 
 
              completely rest for a couple of months that her symptoms 
 
              would likely completely resolve [sic]  On the other hand, 
 
              they would be just as likely to come back as soon as she 
 
              returned to IBP.  Therefore, I think that this patient must 
 
              consider looking for alternative employment as I think her 
 
              body's physical structure simply will not allow her to do 
 
              this type of work without pain.  She plans on talking this 
 
              over with the people at IBP.  I do not think that any other 
 
              medical treatment is indicated at this time and I think she 
 
              has reached her maximum medical improvement.  I do not 
 
              believe that she would have a permanent impairment if she 
 
              were able to rest for a couple of weeks but she would have 
 
              an industrial impairment which will.prevent her from doing 
 
              this type of work.
 
         
 
         (Exhibit 3)
 
         
 
              On July 20, 1988, Dr. Nelson issued a return to work release 
 
         which restricted claimant from performing line work and also 
 
         imposed a 15-pound lifting restriction (exhibit 11).
 
         
 
              Claimant was examined by Samir R. Wahby, M.D., a Fort Dodge 
 
         orthopaedic surgeon.  Dr. Wahby diagnosed her condition as 
 
         sternoclavicular joint chronic inflammation.  He advised her to 
 
         find work that does not require repeated excessive motion of her 
 
         shoulder.. He assigned a five percent permanent partial 
 
         disability rating of claimant's right shoulder.  Dr. Wahby stated 
 
         that her prognosis was good as long as she avoids the type of 
 
         work which requires repeated and excessive motion of her shoulder 
 
         (exhibit 1).  Dr. Wahby went on to state in a subsequent report 
 
         that the five percent rating is due to pain and that she has no 
 
         loss of function (exhibits C and D).
 
         
 
              Claimant contacted Carl E. Toben, D.O.  Dr. Toben diagnosed 
 
         claimant as having cervical and thoracic perispinal [sic] 
 
         discomfort and chronic perispinal [sic] myositis.  He recommended 
 
         that she not return to assembly line work in the packing house 
 
         (exhibit 2).
 
         
 
              Claimant resigned her employment on July 19, 1989 consistent 
 
         with the statement from Dr. Toben.  She stated that her pain at 
 
         that time was unchanged.  Claimant agreed that she had been on 
 
         light duty during essentially all of the time she continued to 
 
         work for IBP following September of 1987.  She stated that some 
 
         of the light-duty jobs aggravated her condition, but others did 
 
         not. She stated that at times her condition would get better, 
 
         then it would get worse, then it would again get better, then 
 
         again worse. Claimant stated that she is unable to do very much.  
 
         She restricted her housekeeping activities and some of them are 
 
         done by her 12-year-old daughter.  Claimant stated that as long 
 
         as she does not do much, she is okay.  She has not worked 
 
         anywhere since July of 1989.  Claimant is currently enrolled in a 
 
         program through vocational rehabilitation where she is learning 
 
                                                
 
                                                         
 
         typing and computer operations.  Claimant stated that the 
 
         activities of typing and keyboarding aggravate her condition and 
 
         cause headaches.  Claimant stated that the headaches have always 
 
         been part of the symptoms which accompany her back, shoulder, 
 
         chest and arm symptoms.  Currently, claimant takes 
 
         over-the-counter medication for her pain.
 
         
 
              Lee Ann Kneifl, the IBP workers' compensation coordinator, 
 
         testified that initially claimant made a very good effort to 
 
         perform her work, but that after her marriage in June of 1988, 
 
         claimant seemed to display an attitude that indicated she was not 
 
         motivated to retain her employment.  Kneifl described some of the 
 
         light-duty jobs of which claimant had complained as being 
 
         extremely light jobs which were well within the restrictions 
 
         which had been imposed by the treating physicians.  Kneifl stated 
 
         that the light-duty work could have continued to be available to 
 
         claimant indefinitely.
 
         
 
              Jack Novak, the.personnel director at the IBP Storm Lake 
 
         plant, testified that IBP attempted to accommodate claimant's 
 
         work restrictions in many ways.  John Sebben stated that the 
 
         reject stamping job, the one which claimant was performing when 
 
         she resigned, has become a permanent job.
 
         
 
              Drs. Nelson and Toben indicated that claimant was capable of 
 
 
 
                                 
 
                                                         
 
         performing the reject stamping job (exhibits A and H).
 
         
 
              A videotape showing a person performing the reject stamping 
 
         job demonstrates that it is extremely light work.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              All of the conditions which the physicians have diagnosed 
 
         have been located in the trunk of claimant's body, rather than in 
 
         her arm.  Accordingly, the disability should be evaluated 
 
         industrially.  Lauhoff Grain Company v. McIntosh, 395 N.W.2d 834 
 
         (Iowa 1986).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N..W. 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              In this case, claimant's lack of current earnings is not a 
 
         reliable indicator of her earning capacity since the medical 
 
         evidence indicates that she could still be employed at IBP if she 
 
         had not chosen to resign.  Claimant has, nevertheless, developed 
 
         a generalized overuse syndrome as described by Dr. Nelson.  Such 
 
         conditions typically do not cause a permanent restriction of 
 
         range of motion.  They typically become relatively asymptomatic 
 
         when the aggravating activities are discontinued, but they also 
 
                                                
 
                                                         
 
         typically become symptomatic quite easily upon resumption of 
 
         activities of the type which caused the syndrome to develop.  Dr. 
 
         Nelson's assessment of this case is consistent with that from Dr. 
 
         Wahby. Claimant's prognosis is expected to be relatively good as 
 
         long as the aggravating activities are avoided.  While the need 
 
         to avoid certain activities is not a basis for a functional 
 
         impairment rating under the AMA Guides to the Evaluation of 
 
         Permanent Impairment, it is nevertheless a permanent activity 
 
         restriction. Under the law, it is not necessary for there to be a 
 
         functional permanent impairment for there to be an award of 
 
         industrial disability.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).  The permanent restrictions are sufficient.  
 
         Some award of permanent partial disability compensation is 
 
         warranted in this case since claimant is restricted from 
 
         performing activities which she was previously capable of 
 
         performing.
 
         
 
              Claimant's lack of motivation is to some extent 
 
         understandable since the numerous efforts at light-duty 
 
         employment and medical treatment have not been successful in 
 
         resolving her symptoms.  She has not completely recovered.  She 
 
         was placed in a position of working with pain or not working.  
 
         She chose to cease work.  It is unlikely that any employment 
 
         which claimant will be able to readily obtain will pay nearly as 
 
         well as the employment which she held.at IBP.  Her current 
 
         attempts to enter into the clerical field certainly seem 
 
         appropriate considering her physical condition.  It should be 
 
         emphasized, however, that the reduction in earnings which she 
 
         will likely experience upon her return to employment is as much a 
 
         result of her choice to leave IBP as it is of her actual physical 
 
         limitations.  It is also important to note that claimant did not 
 
         seek to move into the management support or clerical type 
 
         positions which are within the IBP workforce.  When all the 
 
         material factors of industrial disability are considered, it is 
 
         determined that claimant has a 15 percent permanent partial 
 
         disability as a result of the overuse syndrome which affects the 
 
         upper right portion of the body.  It is that overuse syndrome 
 
         which is the injury of September 14, 1987.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant's injury of September 14, 1987 is an overuse 
 
         syndrome which affects the right side of her upper back, right 
 
         shoulder and the upper right chest.
 
         
 
              2.  As result of the overuse syndrome, claimant should not 
 
         engage in excessive or repetitive use of her right arm.  She is 
 
         also restricted in lifting to 15 pounds.
 
         
 
              3.  Claimant has a full range of motion, but is impaired by 
 
         a loss of strength and loss of ability to perform repetitive 
 
         motions.
 
         
 
              4.  Claimant was not motivated to remain employed at IBP.  
 
                                                
 
                                                         
 
         The reject stamping job was clearly well within her physical 
 
         capabilities.  The credibility of the severity of claimant's 
 
         expressed symptoms and complaints is not well established.
 
         
 
              5.  The assessment of this case as made by Drs. Nelson and 
 
         Wahby is correct.
 
                                        
 
              6.  Claimant has sustained a 15 percent loss of her earning 
 
         capacity as a result of the overuse syndrome.
 
                                        
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The overuse syndrome which is the injury of September 
 
         14, 1987 is a proximate cause of the permanent restrictions 
 
         affecting claimant's right upper body and right arm.
 
         
 
              3.  Claimant's disability should be evaluated industrially 
 
         since the physical abnormality is not limited to her right arm, 
 
         even though the disability is manifested primarily in loss of use 
 
         of claimant's right arm.
 
         
 
              4.  Claimant has a 15 percent permanent partial disability 
 
         as a result of the September 14, 1987 injury under the provisions 
 
         of Iowa Code section 85.34(2)(u) which entitles her to receive 75 
 
         weeks of compensation for permanent partial disability.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant 
 
         seventy-five (75) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred fourteen and 
 
         52/100 dollars ($214.52) per week payable commencing April 27, 
 
         1988.  The employer is entitled to credit for the six point two 
 
         five (6.25) weeks of permanent partial disability compensation 
 
         which was paid prior to hearing as shown on the form 2A on file.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the employer pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that the employer file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 26th day of  September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                                
 
                                                         
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P.O. Box 515
 
         Dakota City, Nebraska  68731
 
         
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51803, 1803.1, 2209
 
                                            Filed September 26, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLENE (RUSHTON) LIPPINCOTT,
 
         
 
              Claimant,
 
                                                    File No. 876911
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         IBP, INC. ,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803.1, 2209
 
         
 
              Claimant developed overuse syndrome affecting her right 
 
         upper back, shoulder and upper chest.  Such was held to be injury 
 
         to the body as a whole to be evaluated industrially despite the 
 
         fact that the primary effect was a loss of use of the claimant's 
 
         right arm.
 
         
 
         51803
 
         
 
              Claimant awarded 15 percent permanent partial disability 
 
         despite a much greater reduction in actual earnings because a 
 
         primary reason for the reduction of earnings was her choice to 
 
         leave IBP, rather than remain working in a light-duty status.
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1402.40; 1803
 
                                             Filed September 15, 1992
 
                                             DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DIANE WADDY,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 876926
 
                                          :
 
            VOCATIONAL REHABILITATION,    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1402.40 - 1803
 
            Claimant suffered headaches after work-related fall.  
 
            Because she lacked credibility, she could not be relied upon 
 
            to determine the extent to which those headaches caused 
 
            disability.
 
            The only medical restriction is that claimant work half-time 
 
            at her current job, which she finds stressful.  That 
 
            restriction does not apply to other jobs.  Claimant has 
 
            transferable skills.  Ten percent industrial disability was 
 
            awarded.
 
            
 
 
 
 
 
 
 
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
     ____________________________________________________________
 
         
 
     DIANE WADDY LOCKETT,   
 
                                          File No. 876926
 
          Claimant,       
 
                                         A L T E R N A T E
 
     vs.             
 
                                            M E D I C A L 
 
     VOCATIONAL REHABILITATION,     
 
                                              C A R E  
 
         Employer,       
 
                                           D E C I S I O N
 
     and             
 
         
 
     STATE OF IOWA, 
 
         
 
          Insurance Carrier,      
 
          Defendants.     
 
___________________________________________________________
 
                     STATEMENT OF THE CASE
 
 
 
Diane Waddy Lockett filed a petition for alternate medical care under 
 
Iowa Code section 85.27, invoking the summary procedures of rule 343 
 
IAC 4.48.  Claimant has residual headaches related to a fall at work 
 
on February 15, 1988.  Employer has admitted liability and has provided 
 
claimant with treatment since August 1990 by Louis Evan Schneider, D.O., 
 
a practitioner of internal medicine.  Claimant expressed dissatisfaction 
 
with the medical treatment provided by Dr. Schneider.
 
 
 
The petition for alternate medical care was filed on June 15, 1993.  
 
A telephone conference hearing was held on June 21, 1993.  Claimant 
 
participated personally and was represented by her attorney Robert A. 
 
Wright, Jr.  Defendants were represented by Joanne Moeller.  
 
The documentary evidence identified in the record consists of 
 
claimant's exhibits 1 through 9.  
 
 
 
                                 ISSUE
 
 
 
The sole issue presented for resolution is whether defendants should 
 
be ordered to provide alternate medical care under Iowa Code section 
 
85.27.
 
 
 
                          FINDINGS OF FACT
 
 
 
The undersigned has carefully considered all the testimony given at 
 
the hearing, arguments made, evidence contained in the exhibits herein, 
 
and makes the following findings:
 
 
 
The medical evidence presented in this case reveals that claimant 
 
presented to Dr. Schneider on January 29, 1993, with complaints of 
 
right leg discomfort, headaches and blurred vision.  No medication 
 
was prescribed.  However, a notation dated March 8, 1993, indicates 
 
that Dr. Schneider prescribed Ritalin and Toradol.  Claimant had an 
 
allergic reaction to this medication (itchy, watery eyes and generalized 
 
rash).
 
 
 
Claimant was referred by Dr. Schneider at her request to William R. 
 
McMordie, Ph.D., clinical neuropsychologist, for evaluation on April 16, 
 
1993.  Claimant related that she requested this referral for counseling.  
 
Dr. McMordie conducted a comprehensive neuropsychological re-evaluation 
 
(he had conducted two previous neuropsychological evaluations on November 
 
22, 1989 and May 29, 1991).  He concluded that, "She reports numerous 
 
 
 
 
 
 
 

 
somatic complaints, such as headaches and neck pains, which this writer 
 
is not competent to address." (exhibit 7).
 
 
 
On May 19, 1993, Marc E. Hines, M.D., gave claimant a prescription 
 
for Calar which she said cured her itching and swelling.  
 
 
 
                         CONCLUSIONS OF LAW
 
 
 
The employer shall furnish reasonable surgical, medical, dental, 
 
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, 
 
ambulance and hospital services and supplies for all conditions compensable 
 
under the workers' compensation law.  The employer shall also allow 
 
reasonable and necessary transportation expenses incurred for those 
 
services.  The employer has the right to choose the provider of care, 
 
except where the employer has denied liability for the injury.  
 
Section 85.27; Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
Report of the Industrial Commissioner 78 (Review-reopen 1975).  
 
Claimant has the burden of proving that the fees charged for such 
 
services are reasonable.  Anderson v. High Rise Construction Specialists, 
 
Inc., file number 850096 (Appeal Decision July 31, 1990).
 
 
 
Claimant is not entitled to reimbursement for medical bills unless 
 
claimant shows they were paid from claimant's funds.  See Caylor v. 
 
Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983).  
 
 
 
When a designated physician refers a patient to another physician, 
 
that physician acts as the defendant employer's agent.  Permission 
 
for referral from defendant is not necessary.  Kittrell v. Allen Memorial 
 
Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 
 
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
 
 
An employer's right to select the provider of medical treatment to an 
 
injured worker should be diagnosed, evaluated, treated or other 
 
matters of professional medical judgment.  Assman v. Blue Star Foods, 
 
Inc., file no. 866389 (declaratory Ruling, May 18, 1988).
 
 
 
Claimant testified that she is no longer satisfied with the care 
 
received from Dr. Schneider.  She indicated that he prescribed medication 
 
to which she was allergic and he did not prescribe medication to cure 
 
the allergic reaction.  Instead, she went to Dr. Hines, a neurologist, 
 
who prescribed the proper medication to cure her symptoms.  
 
 
 
Based on this one experience with Dr. Schneider, claimant now indicates 
 
that she needs to be followed by a neurologist.  She testified that 
 
she was previously under the care of Craig R. DuBois, M.D., a neurologist, 
 
and she was very satisfied with his care.  A report from Dr. DuBois on 
 
May 28, 1992, indicates that he prescribed Zostrix cream bitemporally 
 
and an exercise program (ex. 9).  
 
 
 
Claimant is of the view that her dissatisfaction with an authorized 
 
physician furnishes grounds for granting alternate care.  The treatment, 
 
which by statute, the employer has the right to choose, must be offered 
 
promptly and be reasonably suited to treat the injury without undue 
 
inconvenience.  The statute does not require that claimant be satisfied 
 
with the treatment.  The commissioner may order alternate care, but 
 
only "upon application and reasonably proofs of the necessity therefore."  
 
The statute is couched in terms of necessity, not desirability.  
 
Defendants have offered claimant medical treatment which is suited to 
 
claimant's injury.  Dr. DuBois prescribed exercise and medication and 
 
Dr. Schneider has continued with this regimen.  No physician has 
 
indicated that claimant requires the ongoing services of a neurologist.  
 
Dissatisfaction alone is not grounds for granting alternate medical 
 
care.  Long v. Roberts Dairy Company, file number 982297 (App. Dec. Feb. 
 
5, 1993).
 
 
 
The undersigned has been delegated the authority to issue final 
 
 
 
 
 
 
 

 
agency action in this matter.  Appeal of this decision, if any, would 
 
be by judicial review pursuant to Iowa Code section 17A.19.  
 
 
 
                               ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
Claimant's petition for alternate medical care is denied.
 
 
 
Signed and filed this ____ day of June, 1993.
 
                                     ______________________________
 
                                     JEAN M. INGRASSIA
 
                                     DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Mr. Robert A. Wright, Jr.
 
Attorney at Law
 
Two Ruan Center
 
601 Locust, STE 921
 
Des Moines, Iowa  50309
 
 
 
Ms. Joanne Moeller
 
Assistant Attorney General
 
Hoover State Office Bldg
 
Des Moines, Iowa  50319
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DIANE WADDY LOCKETT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 876926
 
            VOCATIONAL REHABILITATION,    :
 
                                          :       R E V I E W - 
 
                                                R E O P E N I N G
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening from the 
 
            decision entered September 15, 1992, wherein claimant was 
 
            held to be entitled to compensation for a 10 percent 
 
            permanent partial disability.  The review-reopening hearing 
 
            was held at Des Moines, Iowa, on May 18, 1994.  The record 
 
            consists of testimony from William R. McMordie, Ph.D., Kathy 
 
            Sater, Kent A. Jayne, Helen Randolph, Margaret Ward, David 
 
            H. Morse, Jean Schweizer, and Carl Miller.  The record also 
 
            contains claimant's exhibits 1 through 20 and defendants' 
 
            exhibits A through L, N, O, Q, and S through X.  Exhibits 
 
            B-2, B-12, M, P, R, Y, Z, and AA were not received into 
 
            evidence but are with the record as an offer of proof.
 
            
 
                 Claimant seeks additional compensation for healing 
 
            period, permanent partial disability and payment of medical 
 
            expenses.  She asserts that a change of condition has 
 
            occurred since the hearing that was held on February 24, 
 
            1992, which warrants reopening of her case.  Both parties 
 
            seek to recover costs.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The claimant was injured on February 15, 1988.  The 
 
            case proceeded to hearing on February 24, 1992, and the 
 
            decision was entered on September 15, 1992.  When the facts 
 
            are considered it is found that since the hearing of 
 
            February 24, 1992, the claimant voluntarily left her 
 
            employment.  She had a period of unemployment.  She obtained 
 
            a job teaching a course at the Des Moines Area Community 
 
            College.  She was recalled from lay off to a position as a 
 
            Program Planner III in the Department of Human Services.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            That job required considerable knowledge of departmental 
 
            practices, rules, policies and operations.  Claimant did not 
 
            have that knowledge.  It is quite understandable that she 
 
            was unable to satisfactorily perform in that position.  
 
            Shortly prior to the May 18, 1994 hearing claimant was 
 
            recalled to her previous position in the Department of 
 
            Vocational Rehabilitation.  At the time of hearing it was 
 
            too early to know if she would be able to perform adequately 
 
            in that position.  She had not been able to perform 
 
            adequately in that position in the past and there is ample 
 
            reason to believe that she might not perform adequately now.  
 
            
 
                 The record of this case does not contain any objective 
 
            showing that the claimant's physical, economic or emotional 
 
            state has changed appreciably since the hearing that was 
 
            conducted on February 24, 1992.  At the time of the prior 
 
            hearing, claimant was working on a part-time basis.  It was 
 
            apparent that she was under-employed at that time.  Since 
 
            the previous hearing her employment was terminated.  It 
 
            appears as though she voluntarily left her position in the 
 
            hope of obtaining long-term disability benefits.  She did 
 
            not provide evidence of disability, however, in order to be 
 
            successful in her effort to obtain the long-term disability 
 
            benefits.  
 
            
 
                 It is found that the claimant has not shown any 
 
            substantial change caused by the 1988 injury and its sequela 
 
            in her physical, psychological or economic circumstances 
 
            which were beyond what would have reasonably been 
 
            anticipated to occur at the time of the prior hearing on 
 
            February 24, 1992.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).
 
            
 
                 The claimant has failed to carry the burden of proving 
 
            the change of condition which is required in order to permit 
 
            reopening and reconsideration of her award.  The medical 
 
            evidence does not show any consensus among medical 
 
            practitioners to establish that her degree of disability has 
 
            changed appreciably.  The claimant's condition at the time 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of hearing on May 18, 1994, is virtually identical to the 
 
            condition which the record shows to have existed on February 
 
            24, 1992.  Her employment status changed during the time 
 
            elapsing between the two hearings.  It worsened, then 
 
            improved.  It again worsened and has now improved for a 
 
            second time.  It is apparent from the decision entered on 
 
            September 15, 1992, that the employer's conduct in 
 
            maintaining the claimant's employment was not a factor that 
 
            tended to affect the amount of the award.  Accordingly, 
 
            changes in that employment status do not necessarily 
 
            indicate that the case should be reopened.
 
            
 
                 It is therefore concluded that this case should not be 
 
            reopened.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED that claimant take nothing from 
 
            this proceeding. 
 
            
 
                 It is further ordered that each party pay the costs 
 
            incurred by that party in the course of participation in 
 
            this proceeding.  Neither shall receive an award of costs 
 
            from the other.
 
            
 
                 Signed and filed this __________ day of September, 
 
            1994.
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert A Wright, Jr.
 
            Attorney at Law
 
            3839 Merle Hay Road STE 229
 
            Des Moines, Iowa  50310
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
 
            
 
            
 
            
 
            
 
                                       52905
 
                                       Filed September 20, 1994
 
                                       Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            DIANE WADDY LOCKETT,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 876926
 
            VOCATIONAL REHABILITATION,    
 
                                              R E V I E W - 
 
                                             R E O P E N I N G
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            52905
 
            
 
            Claimant failed to show a substantial change of condition in 
 
            order to warrant reopening of her previous award.