before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DEBORAH BUOL,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 877234
 
            MERCY HOSPITAL,           :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            IOWA SMALL BUSINESS EMPLOYERS,:
 
                      		      :
 
                 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 7, 1991, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jon M. McCright
 
            Attorney at Law
 
            1010 The Center
 
            Cedar Rapids, Iowa 52401
 
            
 
            Mr. Fred L. Morris
 
            Attorney at Law
 
            PO Box 9130
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed October 17, 1991
 
                      BYRON K. ORTON
 
                      PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DEBORAH BUOL,	      :
 
                     		      :
 
                 Claimant,  	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 877234
 
            MERCY HOSPITAL,           :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            IOWA SMALL BUSINESS EMPLOYERS,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            7, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBORAH BUOL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 877234
 
            MERCY HOSPITAL,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA SMALL BUSINESS EMPLOYERS,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Deborah 
 
            Buol against her former employer, Mercy Hospital, and its 
 
            insurance carrier, Iowa Small Business Employers.  The 
 
            following issues were presented for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on February 
 
            12, 1988 which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability/healing period benefits or permanent partial or 
 
            permanent total disability benefits.
 
            
 
                 The case was heard and fully submitted on December 5, 
 
            1990, at Cedar Rapids, Iowa.  The record consists of 
 
            testimony from Deborah Buol, Helen Fye, Timothy Trosky, and 
 
            Jerry Buol.  The parties submitted joint exhibits 1 through 
 
            21, which were received.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all of the evidence received, the 
 
            following findings of fact are made.
 
            
 
                 Deborah Buol is a 35-year-old woman who is married and 
 
            has three daughters.  She graduated from Olin High School in 
 
            1973, and during her senior year in high school attended 
 
            adult classes in emergency medical technician (EMT) 
 
            training.  Claimant completed one year of college at Mount 
 
            Mercy.
 
            
 
                 Claimant began working for the Area Ambulance Service 
 
            (which is affiliated with Mercy Hospital) in May 1974.  Her 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            first job assignment was as a basic EMT, and her job duties 
 
            included splinting patients, clearing airways, and 
 
            performing basic CPR duties.  Claimant became a full-time 
 
            EMT for the Area Ambulance Service in the fall of 1974.
 
            
 
                 During the next 14 years, claimant advanced in her work 
 
            as an EMT, becoming an EMT-II in 1979, and a paramedic in 
 
            1981.  Both of these positions required additional training 
 
            beyond that of a basic EMT.
 
            
 
                 On the morning of February 12, 1988, claimant was 
 
            dispatched to an accident site on highway 151, east of Cedar 
 
            Rapids, Iowa.  There were several critical patients on the 
 
            scene of the accident.  (Joint Exhibit 20).  
 
            
 
                 After attending to the critical patients on the scene 
 
            of the accident, claimant traveled back to Mercy Hospital in 
 
            a Lifeguard helicopter with a patient.  She and another 
 
            paramedic were then dispatched back to the scene of the 
 
            accident to pick up two people who had been killed in the 
 
            accident.
 
            
 
                 After returning to Mercy Hospital, claimant began 
 
            restocking the equipment in the ambulance and filling out 
 
            paperwork.  At that time, she noticed a pain in her lower 
 
            left rear pocket area.  Claimant report the injury to Gary 
 
            Grantham, a senior paramedic, and was told to go to the 
 
            emergency room at Mercy Hospital.  Claimant was treated by 
 
            R. Handler, M.D., who diagnosed low back strain.  He 
 
            recommended bed rest and local heat.  Dr. Handler also 
 
            prescribed Meclomen and Flexeril.  (Jt. Ex. 1, Page 1).
 
            
 
                 Claimant returned to the emergency room at Mercy 
 
            Hospital on February 16, 1988.  She was complaining of pain 
 
            in the left lower back region, and on examination exhibited 
 
            tenderness in the area of the L-S1 joint.  G. L. Schmit, 
 
            M.D., prescribed physiotherapy.  (Jt. Ex. 1, P. 2).
 
            
 
                 Claimant returned to the emergency room on February 19, 
 
            1988 and February 24, 1988 with similar complaints.  She was 
 
            referred to an orthopaedic specialist, and was taken off 
 
            work on February 24, 1988.
 
            
 
                 Claimant began to see H. P. MacMenamin, M.D.  (Jt. Ex. 
 
            2, Pages 1-7).  He diagnosed myofascial strain with 
 
            sacroiliac strain.  He recommended Motrin and an exercise 
 
            program.  Claimant was to be off work for two weeks.
 
            
 
                 On March 22, 1988, claimant again presented to Dr. 
 
            MacMenamin with no improvement.  She was scheduled for a 
 
            lumbar MRI and a bone scan, with the results being negative.  
 
            Claimant continued to see Dr. MacMenamin during the next 
 
            five months.  On August 2, 1988, Dr. MacMenamin assessed 
 
            claimant's condition and gave her a permanent partial 
 
            impairment rating of two percent to the body as a whole due 
 
            to the accident.  (Jt. Ex. 2, P. 5).  On August 10, 1988, 
 
            Dr. MacMenamin supplemented his opinion, and imposed 
 
            restrictions of no lifting over 25 pounds, and claimant was 
 
            to avoid bending and twisting, and sitting for prolonged 
 
            periods of time.  (Jt. Ex. 2, P. 6).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. MacMenamin also referred claimant to Erich Streib, 
 
            M.D., a neurologist.  He performed a number of examinations 
 
            and tests on claimant, including an electrodiagnostic study 
 
            of the left leg including sensory and motor nerve conduction 
 
            studies, and an EMG.  He also performed a somato-sensory to 
 
            check the integrity of conduction along the spinal cord.  
 
            All tests were within normal limits.  (Jt. Ex. 8, P. 1).  
 
            Claimant was also referred to Chad Abernathey, M.D., a 
 
            neurologist.  His examination produced the following 
 
            impressions:
 
            
 
                 April 11, 1990
 
            
 
                 Ms. Buol, I believe, suffers from possibly two 
 
                 separate problems.  First of all she has 
 
                 sacroiliac joint pain which I am unable to offer 
 
                 any significant diagnostic or therapeutic 
 
                 interventions.  I believe that separate from this 
 
                 issue is the question of her bilateral lower 
 
                 extremity paresthesia, subjective weakness, and 
 
                 pain...I have recommended to her that we proceed 
 
                 with a CT myelogram with examination of the spinal 
 
                 fluid for M.S.
 
            
 
                    ....
 
            
 
                 May 4, 1990
 
            
 
                    Ms. Deb Buol returns today for the results of 
 
                 her cerebrospinal fluid.  The CSF is negative for 
 
                 an M.S. screen. ... continues to have symptoms but 
 
                 I am unable to identify a specific etiology.  I am 
 
                 not willing to offer her a surgical exploration of 
 
                 the tiny defect identified on the CT myelogram and 
 
                 MR.  It would be unlikely for this suspicious 
 
                 lesion to cause all of her symptoms.
 
            
 
            (Jt. Ex. 7, PP. 2-3)
 
            
 
                 On November 2, 1988, claimant underwent an independent 
 
            medical examination with John Walker, M.D.  Dr. Walker made 
 
            the following assessment:
 
            
 
                 This patient is suffering, of course, from a 
 
                 chronic sprain of the left sacroiliac joint.  It 
 
                 is very possible that she is beginning to get 
 
                 arthritic changes at this time.  Secondly; [sic] 
 
                 she has a probable low grade disc disruption with 
 
                 radicular symptomatology consisting of numbness 
 
                 and tingling of both lower extremities 
 
                 (intermittent).
 
            
 
                    ...
 
            
 
                    At the present time I feel that she has a 
 
                 permanent, partial impairment amounting to 8% of 
 
                 the body as a whole....
 
            
 
                    It is quite obvious that she is not going to be 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 able to do the heavy work involving emergency call 
 
                 and EMT duties.  At the present time I would not 
 
                 recommend any further particular treatment but 
 
                 would further add that in the future, if she gets 
 
                 into bad trouble with the sacroiliac joint, they 
 
                 respond very nicely occasionally to injections of 
 
                 Cortisone and Xylocaine preparations and if these 
 
                 fail and the problem becomes persistent and the 
 
                 patient cannot live with it, a Smith-Peterson 
 
                 interarticular arthrodesis will take care of the 
 
                 problem very nicely.
 
            
 
            (Jt. Ex. 4, PP. 4-5)
 
            
 
                 Claimant has also encountered psychological problems, 
 
            which she attributes in part to the alleged injury on 
 
            February 12, 1988.  Claimant has undergone counseling as far 
 
            back as 1977, and had been prescribed antidepressant 
 
            medication prior to February 12, 1988.  (Jt. Ex. 9, PP. 
 
            1-4).
 
            
 
                 At the time of the hearing, claimant was employed as an 
 
            occupational healthcare assistant for St. Lukes' Hospital.  
 
            She works 40 hours per week, and is compensated at a rate of 
 
            $7.27 per hour.  In her position as a paramedic, and at the 
 
            time of her injury, claimant earned $9.97 per hour.  Her 
 
            actual loss of earnings is approximately 33 percent.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue presented for resolution is whether 
 
            claimant received an injury on February 12, 1988 which arose 
 
            out of and in the course of her employment with Mercy 
 
            Hospital.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on February 12, 
 
            1988 which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 On February 12, 1988, claimant was performing her 
 
            assigned duties as a paramedic, and was dispatched to a 
 
            tragic vehicle accident site.  Upon completion of her duties 
 
            with respect to the accident, claimant continued her every 
 
            day duties when she noticed pain in her left hip and back.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Although claimant had some prior, very mild back pain 
 
            episodes in 1982 and 1986, none of these episodes resulted 
 
            in substantial activity restrictions, permanency or time off 
 
            of work.  It is clear from the evidence presented that on 
 
            February 12, 1988, claimant sustained an injury which arose 
 
            out of and in the course of her employment with Mercy 
 
            Hospital.
 
            
 
                 The next issue presented is whether there is a causal 
 
            connection between the alleged injury and the disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            12, 1988, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Claimant's complaints have been consistent since the 
 
            February 12, 1988 incident.  Specifically, her first visit 
 
            to the emergency room at Mercy Hospital indicated that she 
 
            was experiencing pain in her left hip and back.  Dr. 
 
            MacMenamin assessed claimant's condition as a two percent 
 
            functional impairment.  Dr. Walker evaluated claimant and 
 
            assigned an eight percent permanent partial impairment to 
 
            the body as a whole.
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            submitted that the injury she sustained on February 12, 1988 
 
            is a cause of permanent disability.
 
            
 
                 The next issue presented by the parties is whether 
 
            claimant is entitled to temporary total disability or 
 
            healing period benefits.
 
            
 
                 Temporary total disability benefits are awarded in 
 
            cases where injured employees will recover fully from the 
 
            work related injury.  Healing period benefits are provided 
 
            in cases where injured employees have sustained a permanent 
 
            disability.
 
            
 
                 Two of the physicians seen by claimant have assessed a 
 
            permanent disability rating, and the undersigned finds 
 
            claimant is awarded healing period benefits.  According to 
 
            the prehearing report, the parties were able to stipulate to 
 
            the amount of time claimant missed during the healing 
 
            period.  Therefore, claimant is awarded healing period 
 
            benefits from February 13, 1988 through December 9, 1988.
 
            
 
                 The last issue to be decided is whether claimant has 
 
            sustained an industrial disability.
 
            
 
                 If 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.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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 As discussed earlier, claimant has been given two 
 
            separate impairment ratings, two percent from Dr. 
 
            MacMenamin, and eight percent from Dr. Walker.
 
            
 
                 Claimant's medical condition prior to the injury was 
 
            unremarkable.  Her condition has improved somewhat since the 
 
            injury, although she still complains of chronic pain in the 
 
            left sacroiliac region.
 
            
 
                 Claimant's injury is located on the left lower back and 
 
            hip area.  Although most of the tests performed on claimant 
 
            have had negative results, claimant's healing period lasted 
 
            for approximately ten months.  As a paramedic, she was 
 
            required to do a substantial amount of lifting, twisting, 
 
            bending and turning.
 
            
 
                 Claimant worked for Mercy Hospital for more than 14 
 
            years.  The only other work history claimant has is work 
 
            performed as a waitress while she was in high school.  Since 
 
            the accident, claimant has worked as a nurse aide, and 
 
            currently holds a position as an occupational health care 
 
            assistant for St. Lukes Hospital.  From the evidence 
 
            presented, claimant's potential for rehabilitation appears 
 
            quite encouraging.  It is clear she enjoys working in the 
 
            medical field, and has been quite successful in the 
 
            positions she has held prior to and after the incident.  Her 
 
            primary interests appear to lie with hands-on patient care, 
 
            and she has been fortunate to locate a position which 
 
            enables her to use her EMT and paramedic training and 
 
            experience, and allows her to pursue her interests.
 
            
 
                 On an intellectual, emotional and physical basis, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant's work related injury has taken its toll.  She has 
 
            incurred emotional stress due to the fact that she is unable 
 
            to pursue employment as a paramedic or EMT.  It should be 
 
            noted, however, that claimant has had to deal with other 
 
            stressors in her life which have played a key role in her 
 
            emotional stability, and these factors were considered when 
 
            determining the amount of claimant's industrial disability 
 
            and her emotional status.
 
            
 
                 Claimant testified that while at Mount Mercy College, 
 
            her grade point average was 1.56.  However, it does not 
 
            appear in the record that she had problems completing any 
 
            courses taken in order to obtain her EMT and paramedic 
 
            licenses.  On a physical level, her injury has turned into a 
 
            chronic condition.
 
            
 
                 At the time of the injury, claimant was earning $9.97 
 
            per hour, and had fringe benefits including life, dental, 
 
            and medical insurance, and an employer-funded pension.  
 
            Claimant also had a history of working overtime hours on a 
 
            regular basis.  Since the accident, claimant has worked as a 
 
            nurse's aide for a pediatrician's clinic in Cedar Rapids, 
 
            Iowa.  This position was part-time, and she earned $6.25 per 
 
            hour.  Her current position as an occupational health care 
 
            assistant is a 40-hour work week, and she earns $7.27 per 
 
            hour.  Claimant has sustained a 33 percent loss of actual 
 
            earnings.  This position includes the same fringe benefits 
 
            as her paramedic position.  Claimant's prior supervisor, 
 
            Timothy Trosky, and her current supervisor, Helen Fye, both 
 
            testified at the hearing.  Both displayed positive attitudes 
 
            toward claimant's work.  Both anticipated that claimant 
 
            would receive regular pay increases.
 
            
 
                 At the time of the injury, claimant was 32 years old, 
 
            and held a high school diploma.  She attended college for 
 
            one year.
 
            
 
                 Claimant's motivation to return to work is evidenced by 
 
            her numerous attempts at securing employment.  She applied 
 
            for many positions in the medical field, and for some reason 
 
            or another obtained limited success in her job pursuits.
 
            
 
                 Lastly, because of the injury, claimant is unable to 
 
            return to her paramedic position, and given the lifting and 
 
            other restrictions, would probably not be able to return to 
 
            any type of EMT position.
 
            
 
                 Claimant's functional impairment ratings are low.  She 
 
            had worked her way up the EMT ladder, and had gained a good 
 
            position as a paramedic which she enjoyed.  She is no longer 
 
            able to perform this job, as her work related injury 
 
            precludes her from performing the requirements of her 
 
            position.
 
            
 
                 In evaluating all of the factors which comprise the 
 
            concept of industrial disability, the undersigned finds 
 
            claimant has sustained a twelve percent industrial 
 
            disability. 
 
            
 
                                      order
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That defendants pay Deborah Buol healing period 
 
            benefits payable at the stipulated rate of two hundred 
 
            eighty-six and 54/100 dollars ($286.54) per week commencing 
 
            February 13, 1988.
 
            
 
                 That defendants pay Deborah Buol sixty (60) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of two hundred eighty-six and 54/100 dollars 
 
            ($286.54) per week payable commencing December 10, 1988.
 
            
 
                 That defendants shall pay claimant for mileage expenses 
 
            incurred in the amount of eleven and 68/100 dollars ($11.68) 
 
            (55.6 miles x $.21/mile).
 
            
 
                 That defendants are entitled to credit for all amounts 
 
            of weekly compensation previously paid to Deborah Buol.
 
            
 
                 Any unpaid past due amounts shall be paid in a lump sum 
 
            together with interest in accordance with Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this proceeding are assessed against 
 
            defendants in accordance with rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jon M McCright
 
            Attorney at Law
 
            1010 The Center
 
            Cedar Rapids Iowa 52401
 
            
 
            Mr Fred L Morris
 
            Attorney at Law
 
            PO Box 9130
 
            Des Moines Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1800
 
                      Filed February 7, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DEBORAH BUOL,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 877234
 
            MERCY HOSPITAL,     :
 
                      :   A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA SMALL BUSINESS EMPLOYERS,:
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1800
 
            Claimant worked as an EMT and paramedic for more than 14 
 
            years.  She injured her lower left back (sacroiliac region) 
 
            while administering aid at an accident.
 
            She was given two functional impairment ratings: two percent 
 
            and eight percent, with medical restrictions of no lifting 
 
            of more than 25 pounds and no twisting, bending or sitting 
 
            for long periods.  All physicians stated she could not go 
 
            back to work as a paramedic.
 
            Claimant was 32 years old at the time of the injury; highly 
 
            motivated to return to suitable employment; loss of actual 
 
            earnings of 33 percent; average intellegence; emotional 
 
            instability due to the accident and her home life; and, she 
 
            is a high school graduate with one year of college.
 
            Claimant awarded 12 percent industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GRACE J. ENGELHART,
 
         
 
              Claimant,                                 File No. 877244
 
         
 
         vs.                                         A R B I T R A T I O N
 
         
 
         ELSA APTROOT d/b/a COMPANION                   D E C I S I O N
 
         NURSE'S AIDE,
 
         
 
              Employer,                                    F I L E D
 
         
 
         and                                              MAY 21 1990
 
         
 
         EMPLOYERS MUTUAL INSURANCE,                  INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Grace J. 
 
         Engelhart, claimant, against Elsa Aptroot, d/b/a Companion 
 
         Nurse's Aide, employer, and Employers Mutual, insurance carrier, 
 
         defendants, for benefits as the result of an injury that occurred 
 
         on February 9, 1988.  A hearing was held in Sioux City, Iowa, on 
 
         April 27, 1990, and the case was fully submitted at the close of 
 
         the hearing.  Claimant was represented by Harry H. Smith. 
 
         Defendants were represented by James P. Comstock.  The record 
 
         consists of the testimony of Grace J. Engelhart, claimant and 
 
         joint exhibits 1 through 20.  The deputy ordered a transcript of 
 
         the hearing.  Claimant's attorney submitted a short letter brief. 
 
         Defendants' attorney submitted an excellent brief with several
 
         citations of authority.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 9, 1988, that 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $271.47 per week,
 
         
 
              That claimant's entitlement to medical benefits has been 
 
         paid or will be paid by defendants.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants make no claim for employee nonoccupational 
 
         group health plan benefits paid to claimant prior to hearing.
 
         
 
              That defendants paid claimant 44 5/7 weeks of workers, 
 
         compensation benefits at the rate of $271.47 per week prior to 
 
         hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the nature and extent of benefits 
 
         to which she is entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born March 30, 1943, was 44 years old at the time 
 
         of the injury and 47 years old at the time of the hearing.  She 
 
         has been a nurse's aide since 1974 and this has been her 
 
         principle occupation in recent years.  In this employment she 
 
         cared for Elsa Aptroot, employer, on a 24-shift, four days a 
 
         week.  Claimant and her husband also manage a 45-unit, 
 
         three-building apartment complex which involves showing the units 
 
         to prospective tenants.
 
         
 
              On February 9, 1988, claimant was driving a motor vehicle 
 
         returning employer home from the foot doctor.  It was snowy. 
 
         Claimant lost control of the vehicle and struck a telephone pole. 
 
         Claimant testified, "I crushed my right ankle, cut my forehead, 
 
         and cut my left knee up."  (transcript page 15).  Claimant was 
 
         taken to St. Luke's Regional Medical Center where she was 
 
         diagnosed as having:
 
         
 
              FINAL DIAGNOSIS:
 
         
 
              1.  Extensive laceration, left scalp and forehead.
 
              2.  Severely comminuted bimalleolar fracture, right ankle.
 
              3.  Extensive laceration and contusion of left anterior 
 
              knee.
 
              4.  Contusion, right lower leg.
 
              5.  Contusion, right anterior ribs; possible rib separation, 
 
              but no fracture.
 
         
 
         (exhibit 18, page 3)
 
         
 
              The right ankle fracture was treated by Mark E. Wheeler, 
 
         M.D., an orthopedic surgeon.  The scalp and forehead laceration 
 
         was treated by Stanley A. Bloustine, M.D., a plastic surgeon.  
 
         The left knee, and other injuries, were treated by Harry V. 
 
         Robison, M.D., a family practitioner.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The emergency room report described a large gapping 
 
         laceration vertically down the center of the forehead then 
 
         horizontally to the left just under the eyebrow to the lateral 
 
         edge of the eyebrow with skin displaced.  The laceration starts 
 
         up into the scalp four to six centimeters into the hairline (ex. 
 
         17, p. 2).  C.A. Johnson, M.D., described the head and face wound 
 
         as follows, "There is a deep laceration vertically somewhat 
 
         beveled of the central portion of the forehead which extends into 
 
         and across the left eyebrow and then transversely along the upper 
 
         lid. This extend in the midline back into the hair line."  (ex. 
 
         18, p. 7).  Dr. Robison described it as a large, deep L-shaped 
 
         laceration on the left forehead, brow and into the scalp area 
 
         which will require surgical closure (ex. 18, p. 1).  Dr. 
 
         Bloustine, the plastic surgeon, described it as "a significant 
 
         facial laceration" and also as "extensive forehead laceration" 
 
         (ex. 18, p. 5).  He also described it as a complex laceration of 
 
         the left brow and forehead totalling 12 centimeters (ex. 18, pp. 
 
         6 & 11).  Dr. Bloustine surgically repaired the left forehead and 
 
         facial laceration.  Dr. Wheeler surgically repaired the right 
 
         ankle, comminuted fracture, by open reduction and internal 
 
         fixation with wires, a plate, and several screws (ex. 18, p. 10).  
 
         Claimant was hospitalized for a period of ten days, from February 
 
         9, 1988 to February 19, 1988 (ex. 18, pp. 12 & 15).
 
         
 
              Dr. Wheeler continued to see claimant for her right ankle on 
 
         February 29, 1988; March 31, 1988; April 14, 1988 and May 26, 
 
         1988.  On these occasions the doctor noted claimant was not 
 
         working.  On July 11, 1988, Dr. Wheeler released claimant to 
 
         return to work two days a week for a month.  After that, she 
 
         could resume normal work duties.
 
         
 
              Claimant testified and the parties generally agreed that 
 
         claimant returned to work on July 19, 1988 and worked only two 
 
         days a week through August 17, 1988 (tr. pp. 5, 16, 17, 27, 34, 
 
         35 & 36).
 
         
 
              On September 14, 1988, Dr. Wheeler assessed a 10 percent 
 
         permanent partial impairment rating of the lower right extremity 
 
         because of loss of motion of the ankle.  On October 24, 1988, he 
 
         commented that she might develop degenerative arthritis in the 
 
         future.  On December 5, 1988, Dr. Wheeler noted that claimant 
 
         continued to have aching pains and was very tender over the scar 
 
         in the medial malleolus.  On March 2, 1989, she continued to have 
 
         intermittent pain in her foot.  On May 16, 1989, he issued a 
 
         final impairment rating of 10 percent permanent partial 
 
         impairment of.the lower extremity.  On September 25, 1989, he 
 
         noted that claimant still has pain on the medial and anterior 
 
         aspects of the ankle.  Her walking was somewhat limited.  There 
 
         was tenderness over the scar and anteriorly where the plate and 
 
         screws were placed.  On May 16, 1989, Dr. Wheeler wrote:
 
         
 
              The cause of her injuries was obviously the automobile 
 
              accident.  As is indicated in the records, she has had 
 
              continued difficulty with swelling in the ankle.  She has 
 
              restricted range of motion which equates to a 10% permanent 
 
              partial impairment rating of the lower extremity according 
 
              to AMA guidelines. She has pain in the ankle when she is on 
 
              it for very long.  It does inhibit somewhat her normal 
 
              activities.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (ex. 12, p. 1)
 
         
 
         
 
              With respect to the head and face lacerations, Dr. Bloustine 
 
         commented on May 26, 1988, that she has paresthesias related to 
 
         the transection of the supraorbital neurovascular bundle and the 
 
         direction of the scar.  He noted a vertical laceration going the 
 
         entire length of the forehead into the left upper eyelid and 
 
         brow. He said it was not wide nor hypertrophic (ex. 13, p. 1).  
 
         Dr. Bloustine's final examination was on February 22, 1989 and he 
 
         reported to the insurance carrier on February 23, 1989 as 
 
         follows:
 
         
 
              Ms. Engelhart is now over a year following repair of her 
 
              facial lacerations.  The scar is minimally noticeable. 
 
              However, she does have persistent numbness and tingling and 
 
              discomforts in the area of the scar from the transection of 
 
              the supraorbital neurovascular bundle.  This may be a 
 
              permanent problem.  Considering her scarring and the problem 
 
              she has from the nerve damage, I think she has about a 3% to 
 
              4% permanent partial impairment from her injury in terms of 
 
              her forehead.
 
         
 
         (ex. 15, p. 1)
 
         
 
              Claimant testified that her right ankle swells a lot, it is 
 
         hard to walk and that she has to negotiate steps by walking 
 
         sideways.  Her right ankle feels like someone kicked it if she 
 
         stands on it for a period of time.  It's a very sharp, shooting 
 
         pain.  She took medications for a year after the injury, but was 
 
         not taking any medications at the time of the hearing.  She 
 
         testified that she walks with a limp (tr. pp. 18-20).
 
         
 
              Claimant demonstrated a long vertical scar, approximately 
 
         six inches long, on her right ankle.
 
         
 
              Claimant also demonstrated several scars on her left knee. 
 
         There is no report from Dr. Robison concerning permanent 
 
         impairment of the left knee.  Claimant testified he was not asked 
 
         for an impairment rating.
 
         
 
              Claimant stated that her left forehead is numb, feels 
 
         irritated and it itches.  She testified that she is aware of the 
 
         scar.  She demonstrated that it begins in her mid forehead up in 
 
         the hairline and proceeds vertically downward through the eyebrow 
 
         to the eyelid and then across the eyelid laterally to the left 
 
         side of her left eye.  Claimant testified that she applied for 
 
         work some places and was refused, but she did not know why.  The 
 
         prospective employers did not tell her why she did not get the 
 
         job.  Claimant stated that it was her opinion that some people 
 
         did object to facial scars.  Claimant had not applied for a job 
 
         as a nurse's aide yet because she is not able to lift and turn a 
 
         patient because of the injury to her left knee (tr. pp. 22-26 & 
 
         32).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant acknowledged that she received a check in the 
 
         amount of $585 dated July 21, 1988 from employer, but she did not 
 
         know what it was for (ex. 6).  She testified that she is usually 
 
         paid after her work is completed (tr. pp. 30, 31 & 36).
 
         
 
              She acknowledged that she did not have an impairment.rating 
 
         on the left knee even though she had scars, deep lacerations and 
 
         two drain holes in the knee for quite some time.  She indicated 
 
         that an impairment rating had not been requested (tr. pp. 32 & 
 
         33).  She acknowledged again that she had not applied for nurse's 
 
         aide work since the injury (tr. p. 32).  Claimant acknowledged 
 
         that she received workers' compensation benefits from the date of 
 
         the injury until August 16, 1988 as shown on Form 2A in the 
 
         industrial commissioner's file and that she received permanent 
 
         partial disability after that without an interruption in benefits 
 
         (tr. pp. 34 & 35).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 9, 1988 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The  opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at  907.  Further, the weight 
 
         to be given to such an opinion is for the finder of fact, and 
 
         that may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant did prove by a preponderance of the evidence that 
 
         the injury of February 9, 1988 was the cause of permanent 
 
         disability to the right ankle and that she is entitled to both 
 
         temporary and permanent disability benefits for this injury. 
 
         Claimant obviously was unable to work from the date of the 
 
         accident, February 9, 1988, when she was hospitalized for ten 
 
         days, until Dr. Wheeler released her to return to work on July 
 
         18, 1988, two days a week for one month.  Therefore, claimant is 
 
         entitled to healing period benefits from February 9, 1988 to July 
 
         18, 1988 a period of 22 weeks and 5 days.  Claimant then worked 
 
         two days a week for one month.  Her normal work week was four 
 
         days a week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties stipulated that the gross weekly earnings were 
 
         $434 per week on the prehearing report.  Since claimant worked 
 
         half as much as she normally worked, she would have been entitled 
 
         to half as much pay in the amount of $217 per week.  She was not 
 
         entitled to the other $217 dollars of her normal weeks wages. 
 
         Claimant was, therefore, entitled to temporary partial disability 
 
         benefits for the period of this one month from July 18, 1988 
 
         through August 17, 1988.  Iowa Code section 85.33(2).  Claimant's 
 
         temporary partial disability benefit is 66 2/3 percent of the 
 
         difference between the employee's regular weekly earnings and the 
 
         employee's actual weekly earnings during the period of temporary 
 
         partial disability.  Claimant then is entitled to 66 2/3 percent 
 
         of $217 of temporary partial disability benefits in the amount of 
 
         $144.65 per week for the period from July 18, 1988 through August 
 
         17, 1988 which is a period of 4 weeks and 3 days.  Iowa Code 
 
         section 85.33(4).
 
         
 
              Claimant is entitled to 22 weeks of permanent partial 
 
         disability benefits for the permanent disability to her right 
 
         leg, based on Dr. Wheeler's 10 percent permanent functional 
 
         impairment rating to the lower extremity.  Claimant contends that 
 
         she is entitled to a greater award than 10 percent permanent 
 
         partial disability.  However, claimant did not sustain the burden 
 
         of proof by a preponderance of the evidence that she is entitled 
 
         to more permanent partial disability.  Claimant has an extremely 
 
         serious injury to the right ankle, which swells, causes her to 
 
         limp, causes her to walk down stairs sideways, and feels like 
 
         some one kicked her when she stands on it for a period of time.  
 
         It gives her a sharp, shooting pain.  The right ankle also 
 
         contains a plate, several screws and wires.  Nevertheless, Dr. 
 
         Wheeler was aware of all of these facts and took them into 
 
         consideration when he awarded the 10 percent permanent functional 
 
         impairment rating. Claimant did not present any other permanent 
 
         functional impairment ratings or any work restrictions from any 
 
         other physicians. Therefore, it is determined that claimant has 
 
         sustained a 10 percent permanent functional impairment to the 
 
         right leg and is entitled to 10 percent permanent partial 
 
         disability benefits for the injury to the right ankle.
 
         
 
              With respect to the left knee, claimant sustained a very 
 
         serious injury which prevents her from lifting and turning 
 
         patients.  The injury left her with several noticeable scars on 
 
         the left knee.  The injury required two drains for several days 
 
         during the healing process.  However, claimant presented no 
 
         permanent impairment rating or any work restrictions from either 
 
         Dr. Robison or any other physician.  Therefore, it cannot be 
 
         determined from claimant's testimony alone that claimant 
 
         sustained a permanent disability to the left knee which would 
 
         justify an award of permanent disability benefits.  Permanent 
 
         impairment is typically established by expert medical evidence 
 
         and claimant did not introduce any medical evidence on her left 
 
         knee to establish permanent impairment.
 
         
 
              Claimant did receive a head and facial scar.  Iowa Code 
 
         section 85.34(2)(t) provides as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                  For permanent disfigurement of the face or head which 
 
              shall impair the future usefulness and earnings of the 
 
              employee in the employee's occupation at the time of 
 
              receiving the injury, weekly compensation, for such period 
 
              as may be determined by the industrial commissioner 
 
              according to the severity of the disfigurement, but not to 
 
              exceed one hundred fifty weeks.
 
         
 
              The Iowa Supreme Court recently held that the occupation 
 
         referred to the job or industry in which a claimant is working 
 
         rather than a specific employer-employee relationship in which 
 
         the injury occurs.  Byrnes v. Donaldson's Inc., No. 89-626 (filed 
 
         February 21, 1990).
 
         
 
              Claimant's attorney asserts in his posthearing letter brief, 
 
         "We would argue that any facial scar on a person involved in 
 
         treating such as elderly people would tend to make such a person 
 
         less apt to be hired in view of the psychological effect of the 
 
         scarring on such a person."
 
         
 
         
 
              Claimant testified that her primary occupation for the past 
 
         several years has been that of a nurse's aide.  A nurse's aide is 
 
         in constant contact with members of the public.  For this reason, 
 
         a long L-shaped facial scar that comes out of the hairline, 
 
         across the entire forehead vertically to the eyelid and then 
 
         across the eyelid to the side of the eye, which is 12 centimeters 
 
         long, does impair the future usefulness and earnings of this 
 
         employee as a nurse's aide, because of her necessity to deal with 
 
         the public rather than work in a factory environment.  Nurse's 
 
         aides are in close contact with patients and their families.  In 
 
         the case cited by defendants of Tevis v. McDowell's Pleasant Hill 
 
         Manor, Thirty-third Biennial Report of the Industrial 
 
         Commissioner 74 (1977), claimant was a cook in the kitchen of 
 
         employer and not a nurse's aide.  Furthermore, the deputy did not 
 
         find sufficient evidence of disfigurement.  The deputy viewed the 
 
         scar and may employ agency experience, technical competence and 
 
         specialized knowledge to evaluate the evidence and the 
 
         disability.  Iowa Administrative Procedure Act 17A.14(5); Conyers 
 
         v. Ling-Casler Joint Venture, vol. 1 no. 2 State of Iowa 
 
         Industrial Commissioner Decisions 309 (Appeal Decision 1984).  
 
         Therefore, based upon the medical evidence, about the scars, 
 
         supplied by Dr. Bloustine, having viewed the scar in the court 
 
         room and having considered all of the evidence in this case, it 
 
         is determined that claimant has sustained a 5 percent permanent 
 
         partial impairment because of the disfigurement to the face and 
 
         head of claimant which impairs her future usefulness and earnings 
 
         in her occupation as a nurse's aide.
 
         
 
              Even though claimant testified that the forehead scar was 
 
         irritating, numb and tingled and even though Dr. Bloustine 
 
         awarded a 3 percent to 4 percent impairment rating for the scar, 
 
         claimant did not prove that these discomforts or the impairment 
 
         was the cause of any disability.  It is noted, however, that 
 
         claimant's secondary employment as an apartment complex manager 
 
         showing and renting 45 apartment units involves dealing with the 
 
         public on a face to face basis.  The scar does impair the future 
 
         usefulness and earnings of the employee in her occupation as a 
 
         nurse's aide.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Defendants contended, by virtue of the suggestion of 
 
         counsel, that claimant was paid $585 in advance by employer on 
 
         January 21, 1988 by the personal check of employer (ex. 6).  
 
         However, claimant did not know what this payment was for and 
 
         defendants' counsel's suggestion cannot be considered as 
 
         evidence.  If defendants wanted to establish what this check was 
 
         for, or any of the checks, (ex 5, pp. 1-3), they should have done 
 
         so by their own direct evidence. However, defendants did not call 
 
         any witnesses to explain the significance or meaning of any of 
 
         the checks which they introduced into evidence.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was off work from the date she was 
 
         hospitalized for the automobile accident injury on February 9, 
 
         1988 until Dr. Wheeler released her to return to work on July 18, 
 
         1988.
 
         
 
              That claimant was able to work two days a week rather than 
 
         four days a week for the period from July 18, 1988 to August 18, 
 
         1988.
 
         
 
              That Dr. Wheeler determined that claimant sustained a 10 
 
         percent permanent functional impairment to the right lower 
 
         extremity due to the severe fracture of her right ankle and its 
 
         severe residual complications.
 
         
 
              That claimant's primary occupation for the past several 
 
         years, according to her testimony, is that of a nurse's aide.
 
         
 
              That claimant has a secondary employment of apartment 
 
         manager.
 
         
 
              That the duties of a nurse's aide involves dealing with 
 
         members of the public when employed as a nurse's aide.
 
         
 
              That the duties of a nurse's aide require the employee to 
 
         work in close proximity to the patient and the patient's family.
 
         
 
              That showing and renting apartments involves meeting the 
 
         public face to face.
 
         
 
              That claimant sustained a 12 centimeter scar that begins in 
 
         the center of her forehead up into the hair, down vertically and 
 
         across the forehead to the left eyelid and then laterally across 
 
         the eyelid to the left side of the left eye.
 
         
 
              That the total length of the scar in inches is approximately 
 
         4 1/2 to 4 3/4 inches.
 
         
 
              That the scar is in a prominent place on the forehead of 
 
         claimant and is visible to members of the public who would be 
 
         conversing with or dealing with the employee as a nurse's aide.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the permanent disfigurement of the face, forehead and 
 
         left eye to this claimant impairs her future usefulness and 
 
         earnings as a nurse's aide, especially with private employers 
 
         such as the employer in this case where claimant was working at 
 
         the time of this injury, but also with corporate employers and 
 
         with employers in general in the competitive labor market.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That the injury of February 9, 1988 was the cause of healing 
 
         period disability for the period from February 9, 1988 to July 
 
         18, 1988.
 
         
 
              That claimant is entitled to 22.714 weeks of healing period 
 
         disability benefits for this period of time.
 
         
 
              That the injury of February 9, 1988 was the cause of 
 
         temporary partial disability for the period from July 18, 1988 to 
 
         August 18, 1988.
 
         
 
              That claimant is entitled to 4.429 weeks temporary partial 
 
         disability benefits for this period of time.
 
         
 
              That the injury to the right leg was the cause of a 10 
 
         percent permanent partial disability.
 
         
 
              That claimant is entitled to 22 weeks of permanent partial 
 
         disability benefits for the injury to the right leg.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained a permanent 
 
         disability to the left knee.
 
         
 
              That the injury of February 9, 1988 was the cause of 
 
         permanent disfigurement to the face and head of claimant which 
 
         impairs the future usefulness and earnings of claimant in her 
 
         occupation as a nurse's aide and also as an apartment manager.
 
         
 
              That claimant is entitled to 7.5 weeks, (5 percent of 150 
 
         weeks) for this disfigurement pursuant to Iowa Code section 
 
         85.34(2)(t).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty-two point seven one 
 
         four (22.714) weeks of temporary disability benefits for the 
 
         injury to the right ankle for the period from February 9, 1988 to 
 
         July 18, 1988 in the amount of two hundred seventy-one and 47/100 
 
         dollars ($271.47) as stipulated in the total amount of six 
 
         thousand one hundred sixty-six and 17/100 dollars ($6,166.17) 
 
         commencing on February 9, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants pay to claimant four point four two nine 
 
         (4.429) weeks of temporary partial disability benefits at the 
 
         rate of one hundred forty-four and 65/100 dollars ($144.65) per 
 
         week in the total amount of six hundred forty and 65/100 dollars 
 
         ($640.65) for the period from July 18, 1988 to August 18, 1988 
 
         commencing on July 18, 1988.
 
         
 
              That defendants pay to claimant twenty-two (22) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventy-one and 47/100 dollars ($271.47) per week in the total 
 
         amount of five thousand nine hundred seventy-two and 34/100 
 
         dollars ($5,972.34) for the ten (10) percent permanent partial 
 
         impairment of claimant's right leg commencing on August 18, 1988.
 
         
 
              That defendants pay to claimant seven point five (7.5) weeks 
 
         of permanent disfigurement benefits at the rate of two hundred 
 
         seventy-one and 47/100 dollars ($271.47) per week in the total 
 
         amount of two thousand thirty-six and 03/100 dollars ($2,036.03) 
 
         for the five (5) percent disfigurement of claimant's face and 
 
         head.
 
         
 
              That defendants are entitled to a credit for forty-four 
 
         point seven one four (44.714) weeks of workers' compensation 
 
         benefits paid to claimant prior to hearing at the rate of two 
 
         hundred seventy-one and 47/100 dollars ($271.47) per week in the 
 
         total amount of twelve thousand one hundred thirty-eight and 
 
         51/100 dollars ($12,138.51).
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That,interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript and the sixty-five ($65) dollar filing fee advanced to 
 
         claimant by her counsel, are charged to defendants pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 21st day of May, 1990.
 
         
 
         
 
         
 
                  
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632 Badgerow Bldg.
 
         PO Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. James P. Comstock
 
         Mr. James M. Cosgrove
 
         Attorneys at Law
 
         1109 Badgerow Bldg.
 
         PO Box 1828
 
         Sioux City, Iowa  51102
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51401; 51402.40; 51802; 51401;
 
                                       51402.40; 51801.10; 51401;
 
                                       51402.40; 51803; 1401; 1402.40;
 
                                       1803; 1703
 
                                       Filed May 21, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GRACE J. ENGELHART,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 877244
 
         ELSA APTROOT d/b/a COMPANION
 
         NURSE'S AIDE,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              Claimant was involved in an automobile accident and received 
 
         (1) a severe right ankle injury; (2) a severe scar vertically 
 
         through her entire forehead and then horizontally across her left 
 
         eyelid to the left side of her eye; and (3) a severe left knee 
 
         injury.
 
         
 
         51401; 51402.40; 51802
 
         
 
              Claimant awarded healing period benefits for the time off 
 
         work.
 
         
 
         51401; 51402.40; 51801.10
 
         
 
              Claimant awarded temporary disability based on the evidence 
 
         presented.
 
         
 
         51401; 51402.40; 51803
 
         
 
              Claimant awarded 10 percent permanent partial disability 
 
         benefits for the right leg based on the only impairment rating 
 
         submitted.  Claimant asked for more, but introduced no other 
 
         opinions of any other physicians with higher impairment ratings 
 
         or permanent restrictions.
 
         
 
              No award of permanent partial disability was made on the 
 
         left knee which appeared severely injured and claimant described 
 
         as impaired because claimant introduced no evaluation from the 
 
         treating physician with any impairment rating or permanent 
 
         restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         1401; 1402.40; 1803
 
         
 
              Claimant awarded 5 percent disfigurement for the scar on the 
 
         face and head on a finding it impaired the future usefulness and 
 
         earnings of the employee as a nurse's aide and as an apartment 
 
         manager.  Iowa Code section 85.34(2)(t).
 
         
 
         1703
 
         
 
              No credit allowed for wages defendants' counsel implied were 
 
         wages paid during a period of temporary partial disability 
 
         because argument or suggestion of counsel cannot be considered as 
 
         evidence and defendants called no witnesses to explain the checks 
 
         introduced.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RODNEY L. NEWCOMB,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 877383
 
            RUAN LEASING, RUAN            :
 
            TRANSPORTATION MANAGEMENT     :      A R B I T R A T I O N
 
            SYSTEMS,                      :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Rodney 
 
            L. Newcomb based upon an injury that occurred on January 21, 
 
            1988.  Claimant seeks compensation for healing period, 
 
            temporary partial disability and permanent partial 
 
            disability.
 
            
 
                 The case was heard at Davenport, Iowa on March 16, 
 
            1990.  The record in the case consists of testimony from 
 
            Rodney L. Newcomb, Kelli Schildberg and Bill Allison.  The 
 
            record also contains claimant's exhibits 12, 14 and 15 and 
 
            defendants' exhibits 1 through 11.
 
            
 
                                 findings of fact
 
            
 
                 Rodney L. Newcomb is a 28-year-old single man who 
 
            graduated from high school in 1982.  He has no post-high 
 
            school education or vocational training.
 
            
 
                 Newcomb's work history includes general labor and truck 
 
            driving.  Claimant testified that he had no physical 
 
            ailments or problems which made it impossible for him to do 
 
            heavy lifting prior to January 21, 1988.
 
            
 
                 Newcomb commenced employment with Ruan as a casual 
 
            employee for approximately two weeks and was then placed in 
 
            a permanent employee status.  On January 21, 1988, 
 
            claimant's foot slipped while getting out of a truck and he 
 
            fell down to the ground, landing on his heels.  According to 
 
            claimant, he felt no pain at the time of the incident, but 
 
            experienced discomfort in his lower back the following 
 
            morning.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Newcomb initially received treatment from Karen Edkin, 
 
            D.C.  He was off work, but was released to return to work by 
 
            Dr. Edkin on January 28, 1988 (exhibit 2, pages 2 and 4).  
 
            Claimant then sought treatment under the direction of 
 
            William Catalona, M.D.  Dr. Catalona felt that claimant had 
 
            instability at several levels of his lumbar spine with a 
 
            retrolisthesis at the L5-S1 level.  He recommended that 
 
            claimant remain off work.  Dr. Catalona prescribed treatment 
 
            in the nature of bed rest, prescription medication and 
 
            physical therapy.  By March 10, 1988, Dr. Catalona reported 
 
            that he doubted claimant could be rehabilitated to return to 
 
            heavy labor and arbitrarily assigned a 15 percent permanent 
 
            impairment rating (exhibit 3, page 1).  On July 5, 1988, Dr. 
 
            Catalona noted that claimant was willing to return to work 
 
            with restrictions on July 6, 1988 and issued a work release 
 
            accordingly (exhibit 3, pages 2 and 7).
 
            
 
                 While off work, claimant was seen by J. H. Sunderbruch, 
 
            M.D., on March 25, 1988.  Dr. Sunderbruch felt that 
 
            claimant's injury was a low back strain, that he had no 
 
            permanent impairment from it and that he could return to 
 
            work with a 25-pound lifting restriction.  Dr. Sunderbruch 
 
            felt that claimant's x-rays were normal (exhibit 1, pages 
 
            5-7).
 
            
 
                 Newcomb returned to restricted work on July 8, 1988.  
 
            He could not explain why he did not seek to return to work 
 
            sooner, despite having been contacted by his supervisor, 
 
            Bill Allison, with information that work complying with Dr. 
 
            Sunderbruch's restrictions was available.
 
            
 
                 Claimant worked until aggravating his symptoms on or 
 
            about September 2, 1988.  He was then off work from 
 
            September 3 through September 8, 1988, worked until 
 
            September 26 and 27, 1988 when he was off, worked on 
 
            September 28, 1988, and was off work again from September 29 
 
            through October 5, 1988.  Claimant then resumed work until 
 
            being off from November 14, 1988 through November 23, 1988.  
 
            Claimant was under medical treatment during the times he was 
 
            off work commencing September 3, 1988.  He was treated 
 
            primarily by Dr. Catalona, but was also seen by Byron W. 
 
            Rovine, M.D., and Jerome G. Bashara, M.D.  (Exhibits 6 and 
 
            7)  Claimant had been evaluated at the University of Iowa 
 
            Hospitals and Clinics in August, 1988 (exhibit 4).  Those 
 
            three physicians were not in substantial disagreement.  
 
            Claimant was found to have mild lumbar instability.  Dr. 
 
            Bashara diagnosed the condition as a musculoligamentous 
 
            strain.  All felt that claimant was capable of working with 
 
            lifting restrictions or if wearing a brace.  Dr. Bashara 
 
            assigned a 10 percent permanent impairment rating due to 
 
            claimant's back condition.
 
            
 
                 Claimant was evaluated in April, 1989 by Robert J. 
 
            Chesser, M.D.  Dr. Chesser found claimant to have a first 
 
            degree spondylolysthesis.  He recommended that claimant 
 
            avoid frequent lifting in excess of 50 pounds and avoid all 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            lifting in excess of 75 pounds (exhibit 9).
 
            
 
                 Dr. Catalona rated claimant as having an 8 percent 
 
            impairment on December 7, 1988 following completion of the 
 
            Work Fitness Center program (exhibit 3, page 5).
 
            
 
                 While claimant was off work following the September 2, 
 
            1988 incident, he was placed into a work hardening program 
 
            through the Work Fitness Center (exhibit 10).  His physical 
 
            capacities increased while he was in the program.  On 
 
            November 23, 1988, he returned to part-time work and 
 
            continued in that status through December 16, 1988.  He was 
 
            scheduled to work 20 hours per week during the first two of 
 
            those four weeks.  He worked 21.8 hours the third week and 
 
            29.3 hours the fourth week.  During the first two weeks, 
 
            claimant was absent for reasons unrelated to his injury.  
 
            Claimant's normal rate of earnings was $7.00 per hour.  At 
 
            that rate, he would have earned $140.00 during each of the 
 
            first two weeks, $152.60 the third week and $205.10 the 
 
            fourth week.  Two-thirds of the difference between his 
 
            normal weekly earnings of $280.00 and the part-time 
 
            earnings, if he had worked all scheduled hours, are $93.33 
 
            for each of the first two weeks, $84.98 for the third week, 
 
            and $49.96 for the fourth week.  The total is $321.60.  The 
 
            employer and its insurance carrier had paid five weeks of 
 
            benefits at the rate of $95.33 during this transitional work 
 
            period, an amount which totals $476.65.
 
            
 
                 According to exhibit 11, claimant resumed full-time 
 
            work with the week beginning December 17, 1988 and worked 
 
            normal full-time hours thereafter until he was subsequently 
 
            injured while handling a tire on February 21, 1989.
 
            
 
                 Following recovery from the February, 1989 injury, 
 
            claimant resumed work for approximately two months and then 
 
            resigned.  After moving through a number of other jobs, 
 
            claimant found his current employment as a farm hand.  His 
 
            current employer provides claimant work within his physical 
 
            limitations.
 
            
 
                 Claimant and Kelli Schildberg, the woman with whom he 
 
            resides, both stated that claimant is greatly restricted in 
 
            his physical capabilities and that he no longer participates 
 
            in things such as recreational sports.  Schildberg stated 
 
            that claimant is unable, because of his back condition, to 
 
            perform activities such as washing dishes or taking out the 
 
            garbage.
 
            
 
                 It is found that the assessment of this case made by 
 
            Dr. Catalona is correct.  He is a qualified orthopaedic 
 
            surgeon and is more familiar with the case than any of those 
 
            who have merely evaluated claimant.  Further, his assessment 
 
            is substantially consistent with the assessments made by 
 
            Drs. Guyton, Chesser, Rovine and Bashara.  The only material 
 
            variance is with Dr. Sunderbruch who, despite the finding of 
 
            normal x-rays and no permanent impairment also recommended a 
 
            25-pound lifting restriction.  Dr. Sunderbruch's assessment 
 
            of the case is inconsistent with itself as well as being 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            inconsistent with that from the other physicians.  The 
 
            assessment made by Dr. Edkin is too preliminary to have much 
 
            impact upon the final result of the case.
 
            
 
                 The evidence from claimant and Schildberg regarding his 
 
            physical limitations is found to be somewhat exaggerated.  
 
            While claimant certainly does have a well-documented back 
 
            condition, the nature of that condition is not such that it 
 
            would be expected to prohibit him from performing activities 
 
            such as washing dishes or taking out the trash.  Those 
 
            activities are well within the restrictions recommended by 
 
            all the physicians who have treated and evaluated claimant.
 
            
 
                 It is specifically found that claimant's injury was a 
 
            musculoligamentous strain or sprain.  It occurred due to the 
 
            preexisting spondylolysthesis.  It is an injury from which 
 
            he had recuperated in mid-March of 1988.  His remaining off 
 
            work subsequent to that time was due primarily to his 
 
            reluctance to resume heavy work.  There is no evidence to 
 
            indicate that he actually recuperated or recovered 
 
            significantly between mid-March and early July of 1988.
 
            
 
                 Claimant has the same hourly rate of pay at his current 
 
            job as he did with Ruan.  He seems physically capable of 
 
            performing that work without substantial problem.  While it 
 
            does aggravate his symptoms on occasion, it is likely that 
 
            any type of work or activity will aggravate his symptoms in 
 
            view of the nature of his underlying condition.  It is found 
 
            that the injury that occurred on January 21, 1988 was an 
 
            aggravation of an underlying, previously latent spinal 
 
            instability.  The injury became permanent.  It has resulted 
 
            in a 10 percent reduction of claimant's earning capacity.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 21, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's injury has been found to be an aggravation 
 
            of a preexisting condition.  This entitles him to recover 
 
            healing period benefits as if there had been no preexisting 
 
            condition.  It was the January 21, 1988 incident which 
 
            caused the preexisting condition to become symptomatic.
 
            
 
                 The parties treated the September incident as part of 
 
            the original injury, but the defense has contended that the 
 
            February 21, 1989 incident was a separate injury.  
 
            Defendants are correct in that contention.  It was a 
 
            subsequent aggravation of the preexisting condition and 
 
            cannot be dealt with in this decision.  It is a separate 
 
            injury which requires a separate petition and contested case 
 
            proceeding.
 
            
 
                 Claimant seeks compensation for healing period and 
 
            temporary partial disability.  The case is complex in that 
 
            it involves several periods of absence from work.  Healing 
 
            period ends when the employee returns to work, completes all 
 
            significant medical improvement from the injury, or is 
 
            capable of returning to substantially similar employment.  
 
            [Iowa Code section 85.34(1)]  In this case, however, weekly 
 
            compensation was paid.  The claimant did not return to work 
 
            until July 8, 1988.  There is no evidence in the record 
 
            showing that the claimant was given the 30-day notice 
 
            stating the reason for the termination of compensation and 
 
            advising him of his right to file a claim with the 
 
            industrial commissioner as is required by Iowa Code section 
 
            86.13.  In view of the lack of that notice, claimant is 
 
            entitled to recover healing period compensation commencing 
 
            January 22, 1988 and running through July 7, 1988, a span of 
 
            24 weeks.  While the actual healing period had ended by the 
 
            time Dr. Sunderbruch issued his report on March 25, 1988, 
 
            the lack of 30-day notice entitles claimant to continue to 
 
            recover weekly compensation until his actual return to work.  
 
            It is noted that he did not file his petition until the 
 
            subsequent date of November 14, 1988.
 
            
 
                 Claimant is also determined to be entitled to healing 
 
            period compensation for six days commencing September 3, 
 
            1988, two days commencing September 26, 1988, one week 
 
            commencing September 29, 1988, and one and two-sevenths 
 
            weeks commencing November 14, 1988.  This is a total of 
 
            three and three-sevenths weeks.
 
            
 
                 Claimant is entitled to recover temporary partial 
 
            disability compensation under the provisions of Iowa Code 
 
            sections 85.33(2) through (5).  His failure to report to 
 
            work as scheduled constitutes a refusal to accept suitable 
 
            work.  It is therefore treated as though he had worked the 
 
            hours scheduled for purposes of computing temporary partial 
 
            disability benefits in view of the nature of the reasons 
 
            which appear in the record for his failing to report to 
 
            work.  The refusal is not one which totally disqualifies 
 
            claimant from all benefits.  His entitlement to temporary 
 
            partial disability compensation totals $321.60.  That paid 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            by the employer totalled $476.65, resulting in an 
 
            overpayment of $155.05.
 
            
 
                 If 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.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, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 When all the appropriate factors of industrial 
 
            disability are considered, it is determined that claimant 
 
            has a 10 percent permanent partial disability which entitles 
 
            him to recover 50 weeks of compensation under the provisions 
 
            of Iowa Code section 85.34(2)(u).  The weekly compensation 
 
            is payable commencing at the end of the initial healing 
 
            period, namely July 8, 1988 and is payable weekly 
 
            thereafter, with interruptions for subsequent healing 
 
            periods and also for weeks when temporary partial disability 
 
            compensation was payable.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            twenty-seven and three-sevenths (27 3/7) weeks of 
 
            compensation for healing period at the stipulated rate of 
 
            one hundred seventy-eight and 72/100 ($178.72) per week with 
 
            twenty-four (24) weeks thereof being payable on January 22, 
 
            1988; with six-sevenths (6/7) weeks thereof payable 
 
            commencing September 3, 1988; with two-sevenths (2/7) weeks 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            thereof payable commencing September 26, 1988; with one (1) 
 
            week thereof payable commencing September 29, 1988; and with 
 
            the remaining one and two-sevenths (1 2/7) weeks payable 
 
            commencing November 14, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay four (4) 
 
            weeks of compensation for temporary partial disability 
 
            payable commencing November 20, 1988 with the first two (2) 
 
            weeks thereof payable at the rate of ninety-three and 33/100 
 
            dollars ($93.33), with the third week payable at the rate of 
 
            eighty-four and 98/100 dollars ($84.98), and with the fourth 
 
            week payable at the rate of forty-nine and 96/100 dollars 
 
            ($49.96).
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            fifty (50) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of one hundred 
 
            seventy-eight and 72/100 ($178.72) per week payable 
 
            commencing July 8, 1988 and payable each week thereafter, 
 
            with interruptions for the subsequent healing period and 
 
            temporary partial disability compensation which is awarded 
 
            in this decision.
 
            
 
                 IT IS FURTHER ORDERED that defendants are entitled to 
 
            credit against the foregoing award for all weekly 
 
            compensation benefits which were previously paid.  The 
 
            remaining unpaid accrued amount shall be paid in a lump sum 
 
            together with interest at the rate of ten percent (10%) per 
 
            annum computed from the date each payment came due until the 
 
            date of actual payment according to the provisions of Iowa 
 
            Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Avenue
 
            Suite 200
 
            Des Moines, Iowa  50309
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1801.1, 5-1802, 5-1803                  
 
            5-2206, 4000.1
 
                                               Filed August 16, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RODNEY L. NEWCOMB,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 877383
 
            RUAN LEASING, RUAN            :
 
            TRANSPORTATION MANAGEMENT     :      A R B I T R A T I O N
 
            SYSTEMS,                      :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1801.1
 
            Where the claimant missed some days he was scheduled to work 
 
            under a temporary partial disability setting, his weekly 
 
            benefit for that week was computed as if he had worked 
 
            whenever scheduled, rather than totally disqualifying him 
 
            from benefits.
 
            
 
            5-1802, 5-1803, 5-2206
 
            Claimant awarded healing period, temporary partial 
 
            disability and permanent partial disability for an 
 
            aggravation of a preexisting back condition.
 
            
 
            4000.1
 
            Healing period continued until actual return to work where 
 
            benefits were terminated without notice.