before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DOROTHY SPARKS,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 878008
 
         NEWTON MANUFACTURING COMPANY, :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         AMERICAN MANUFACTURERS MUTUAL,:
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 13, 1990, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of February, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis F. Chalupa
 
         Attorney at Law
 
         211 First Avenue West
 
         P O Box 726
 
         Newton, Iowa  50208
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         218 6th Avenue  Suite 300
 
         P O Box 9130
 
         Des Moines, Iowa  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed February 28, 1992
 
            BYRON K. ORTON
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOROTHY SPARKS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 878008
 
            NEWTON MANUFACTURING COMPANY, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURERS MUTUAL,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
            
 
                 Summary affirmance of deputy's decision filed November 
 
            13, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOROTHY SPARKS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 878008
 
            NEWTON MANUFACTURING COMPANY, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURERS MUTUAL,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dorothy 
 
            Sparks against her former employer, Newton Manufacturing 
 
            Company, and its insurance carrier, American Manufacturers 
 
            Mutual, based upon an injury that occurred on January 4, 
 
            1988.  Claimant seeks additional compensation for permanent 
 
            disability.  The primary issue to be determined is the 
 
            amount of permanent disability compensation which Dorothy 
 
            Sparks is entitled to receive.  An underlying issue is 
 
            whether the permanent disability is to be evaluated as a 
 
            disability to the arm under Iowa Code section 85.34(2)(m) or 
 
            industrially as an injury to the body as a whole.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on September 18, 1990.  The record consists of 
 
            testimony from Dorothy Sparks, claimant's exhibits 1 through 
 
            10 and defendants' exhibits 1 through 6.  The bulk of 
 
            defendants' exhibits duplicate evidence which is part of the 
 
            claimant's exhibits.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Dorothy Sparks is a 62-year-old woman who was employed 
 
            by Newton Manufacturing Company for approximately 17 years 
 
            prior to her retirement on approximately January 6, 1989.  
 
            Her work duties consisted primarily of entering orders into 
 
            a computer using a keyboard.  She also performed 
 
            considerable handwriting.  Claimant's prior work history 
 
            consisted primarily of operating typewriters and 
 
            calculators.  She is a high school graduate with no further 
 
            formal education.
 
            
 
                 Claimant enjoyed relatively good health, other than for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            a diabetic condition which was controlled with insulin, 
 
            prior to January 4, 1988.  On January 4, 1988, she fell at 
 
            her employer's place of business and suffered a severe 
 
            fracture of her right elbow.  She underwent open reduction 
 
            and internal fixation of her right distal humeral fracture, 
 
            which surgery was performed by orthopaedic surgeon Ronald R. 
 
            Reschly, M.D.  (Claimant's exhibit 1, pages 1-8)
 
            
 
                 Claimant remained under the care of Dr. Reschly through 
 
            a period of recuperation.  She developed sympathetic reflex 
 
            dystrophy affecting her right arm.  Her treatment consisted 
 
            of physical therapy and medication.  A note dated July 20, 
 
            1988 indicates that claimant was released to return to work 
 
            on August 1.  A note dated August 10, 1988 indicates that 
 
            claimant had been working for approximately one week 
 
            (claimant's exhibit 2).  Claimant worked four hours per day, 
 
            but continued to have some difficulty.  On October 26, 1988, 
 
            Dr. Reschly indicated that claimant's condition had 
 
            stabilized to the point that she was to return on an as 
 
            needed basis and no further office visits were scheduled 
 
            (claimant's exhibit 2, page 5).
 
            
 
                 When claimant returned to work, she worked as a 
 
            proofreader, rather than performing the duties which she had 
 
            performed prior to her fall.  Claimant continued to 
 
            experience pain and discomfort in her right arm of a degree 
 
            which was sufficient to impair her concentration.  It left 
 
            her fatigued at the end of the work day, despite the fact 
 
            that her work day was only four hours.  The employer did not 
 
            offer her full-time work and she was not aware of any 
 
            full-time work with the employer which she would be capable 
 
            of performing.  Claimant retired from the employment on or 
 
            about January 6, 1989.  She did so due to a combination of 
 
            the physical problems afflicting her as a result of her 
 
            injury and also a change in the employer's retirement 
 
            benefits package which would have resulted in a reduction in 
 
            her insurance coverage if she had remained employed after 
 
            the end of March, 1989.
 
            
 
                 At hearing, claimant related continuing problems in the 
 
            nature of pain, numbness and tingling in her lower right 
 
            arm, hand and fingers.  She has stiffness and pain in her 
 
            right shoulder, elbow, hand and fingers.  Claimant also has 
 
            restricted movement of her right arm and shoulder.  Claimant 
 
            feels that the problems resulted from the January 4, 1988 
 
            fall.  Claimant also now has difficulty with her left leg as 
 
            a result of an injury which she suffered several months 
 
            after retiring.  That incident has no relationship to the 
 
            January 4, 1988 injury or the degree of disability resulting 
 
            from that 1988 injury.
 
            
 
                 Claimant is found to be a credible witness.  Her 
 
            testimony regarding her symptoms, complaints and limitations 
 
            is accepted as being correct.
 
            
 
                 Claimant has been evaluated by three orthopaedic 
 
            surgeons in order to assess the condition of her right arm 
 
            and shoulder.  Ronald R. Reschly, M.D., her treating 
 
            physician, stated that she had reached maximum improvement 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            by November 22, 1988.  He rated her as having a 3 percent 
 
            permanent impairment of her right shoulder (claimant's 
 
            exhibit 10, pages 4-6).  He also rated her as having a 37 
 
            percent impairment of her right upper extremity, an amount 
 
            which he stated was equivalent to a 22 percent impairment of 
 
            the whole person (claimant's exhibit 4).  Dr. Reschly also 
 
            explained that claimant developed shoulder bursitis and 
 
            impairment as a result of the injury and its treatment.  He 
 
            stated that it is a minor problem, but that it does exist.  
 
            He stated that her reflex sympathetic dystrophy affecting 
 
            the arm is now a minor problem (claimant's exhibit 7).  Dr. 
 
            Reschly indicated that claimant would have difficulty 
 
            performing activities such as typing.
 
            
 
                 John H. Kelley, M.D., evaluated claimant and also found 
 
            her to have a 3 percent permanent impairment of her right 
 
            shoulder.  He assigned a 42 percent impairment rating for 
 
            her right upper extremity, an amount which he stated was 
 
            equivalent to 25 percent of the whole person (claimant's 
 
            exhibit 9, pages 8 and 9).  Dr. Kelley stated that 
 
            claimant's impairment and disability is primarily located in 
 
            her right hand.  He did not consider the condition of her 
 
            right shoulder to be disabling in the sense that it, by 
 
            itself, would prevent her from performing work such as 
 
            typing (claimant's exhibit 10, page 4; claimant's exhibit 9, 
 
            page 10).  Dr. Kelley felt that claimant's ability to use a 
 
            keyboard is limited (claimant's exhibit 10, page 12).
 
            
 
                 Claimant was also evaluated by Scot B. Neff, D.O., and 
 
            Thomas L. Bower, L.P.T.  Dr. Neff and Mr. Bower found 
 
            claimant to have a 30 percent impairment of her right upper 
 
            extremity and assessed 12 percent of the impairment to the 
 
            condition of her right shoulder (claimant's exhibit 8).  Dr. 
 
            Neff stated that the shoulder impairment is a direct result 
 
            of the fall which claimant suffered (defendants' exhibit 4, 
 
            page 2).
 
            
 
                 While there are some minor differences between the 
 
            assessments made by the physicians, they all appear to be in 
 
            agreement that claimant has a very substantial impairment of 
 
            her right upper extremity and that part of the impairment is 
 
            located in her right shoulder.  The term "bursitis" is used 
 
            to describe the shoulder condition.  The physicians seem to 
 
            agree that claimant is not employable in a normal typing or 
 
            keyboarding employment.  Their assessments are accepted as 
 
            being generally correct.  While the undersigned does not 
 
            consider the differences among their assessments to be 
 
            significant, it is found that the assessment made by Dr. 
 
            Reschly, the treating physician, is the most accurate due to 
 
            his greater degree of familiarity with the case.  It is 
 
            specifically found that claimant did reach maximum 
 
            improvement from the injury on November 22, 1988 as 
 
            indicated by Dr. Reschly in his report.
 
            
 
                 As a result of the January 4, 1988 injury, Dorothy 
 
            Sparks is essentially limited to one-handed work.  She 
 
            suffers residual pain, restricted motion and loss of 
 
            strength in her right arm and shoulder.  She is 62 years of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            age, a point at which it is not particularly feasible for 
 
            her to enter into any extended program of retraining.  She 
 
            has chosen to retire, a choice which appears very 
 
            appropriate in view of her physical condition and the loss 
 
            of retirement benefits which would have occurred if she had 
 
            continued working.  It is noted that she could have worked 
 
            through the month of March, 1989 without suffering any loss 
 
            of retirement benefits, but elected to retire in January.  
 
            That fact, together with claimant's testimony, has convinced 
 
            the undersigned that the primary reason for her retirement 
 
            in 1989, rather than waiting until age 65, was the 
 
            disability which resulted from the January 4, 1988 injury.
 
            
 
                 Dorothy Sparks could probably find some type of 
 
            employment if she were to make a very concerted effort.  She 
 
            has chosen not to do so for very appropriate reasons.  When 
 
            all the material factors of earning capacity are considered, 
 
            it is determined that she has experienced a 50 percent 
 
            reduction in her earning capacity as a result of the January 
 
            4, 1988 injury.
 
            
 
                                conclusions of law
 
            
 
                 It is concluded that the January 4, 1988 injury is a 
 
            proximate cause of permanent disability affecting claimant's 
 
            right arm and shoulder.  The injury is not limited to 
 
            claimant's right arm.
 
            
 
                 An injury to a scheduled member which, because of 
 
            aftereffects (or compensatory change), creates impairment to 
 
            the body as a whole and entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            290, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 
 
            Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 While the bulk of the disabling character of the injury 
 
            is located in claimant's right arm, there is a sufficient 
 
            amount of permanent disability and impairment in her right 
 
            shoulder to evaluate the disability in this case 
 
            industrially.
 
            
 
                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 It is determined that Dorothy Sparks experienced a 50 
 
            percent permanent partial disability when the same is 
 
            evaluated industrially as a result of the January 4, 1988 
 
            injury.  This entitles her to receive 250 weeks of 
 
            compensation for permanent partial disability payable 
 
            commencing November 23, 1988.
 
            
 
                 Claimant's regular weekly earnings were $262.00 per 
 
            week.  When she returned to work, working four hours per 
 
            week, it was at the same hourly rate of pay as she had 
 
            earned prior to the injury.  Her weekly earnings are 
 
            therefore determined to have been $131.00 per week.  
 
            Two-thirds of that amount is $87.38, her weekly temporary 
 
            partial disability benefit under Iowa Code section
 
            85.33(2-4).
 
            
 
                 Claimant is entitled to recover all the costs included 
 
            on her costs statement, except that the expert witness fee 
 
            for Dr. Reschly is limited to $150.00 in accordance with 
 
            Iowa Code section 622.72.  The total to be assessed is 
 
            therefore $417.25.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Dorothy 
 
            Sparks thirty-one and two-sevenths (31 2/7) weeks of 
 
            compensation for healing period payable at the stipulated 
 
            rate of one hundred seventy-one and 61/100 dollars ($171.61) 
 
            per week commencing January 4, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Dorothy 
 
            Sparks fifteen (15) weeks of compensation for temporary 
 
            partial disability at the rate of eighty-seven and 38/100 
 
            dollars ($87.38) per week commencing August 11, 1988 and 
 
            running through November 22, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Dorothy 
 
            Sparks two hundred fifty (250) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of one 
 
            hundred seventy-one and 61/100 dollars ($171.61) per week 
 
            payable commencing November 23, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants are entitled to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            dollar-for-dollar credit for all amounts of weekly 
 
            compensation previously paid to Dorothy Sparks.  Any unpaid 
 
            past due amounts 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 in accordance with Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against defendants in the amount of four 
 
            hundred seventeen and 25/100 dollars ($417.25) in accordance 
 
            with 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. Dennis F. Chalupa
 
            Attorney at Law
 
            211 First Avenue West
 
            P.O. Box 726
 
            Newton, Iowa  50208
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803, 5-1803.1
 
                           Filed November 13, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOROTHY SPARKS,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 878008
 
            NEWTON MANUFACTURING COMPANY, :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AMERICAN MANUFACTURERS MUTUAL,:
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803, 5-1803.1
 
            Sixty-two-year-old woman with 22% impairment of the body as 
 
            a whole awarded 50% permanent partial disability.  Where the 
 
            fracture injury of her elbow and its treatment produced 
 
            impairment affecting her shoulder, the disability was 
 
            evaluated industrially rather than as a scheduled member 
 
            disability of the arm.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOROTHY GRIFFITH,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 878096
 
            NIEMANN FOODS, d/b/a     :
 
            COUNTY MARKET, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER INSURANCE,   :
 
                      :
 
                 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 4, 1991 is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            The deputy's reference to the knowledge of claimant's spouse 
 
            concerning workers' compensation law is misplaced.  Claimant 
 
            is not charged with the knowledge of his or her spouse 
 
            concerning workers' compensation law.  It is irrelevant 
 
            whether or not claimant's spouse had knowledge of 
 
            entitlement to workers' compensation benefits.   
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Phillip C. Vonderhaar
 
            Attorney at Law
 
            840 Fifth Ave.
 
            Des Moines, Iowa 50309
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, Iowa 52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 17, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOROTHY GRIFFITH,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 878096
 
            NIEMANN FOODS, d/b/a     :
 
            COUNTY MARKET, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER INSURANCE,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            4, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOROTHY GRIFFITH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 878096
 
                                          :
 
            NIEMANN FOODS, d/b/a          :      A R B I T R A T I O N
 
            COUNTY MARKET,                :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed January 24, 1989.  Claimant allegedly 
 
            sustained a back injury in the course of her employment with 
 
            defendant Niemann Foods (d/b/a County Market) in September 
 
            1987 and now seeks benefits under the Iowa Workers' 
 
            Compensation Act from that employer and its insurance 
 
            carrier, Kemper Insurance.
 
            
 
                 Hearing on the arbitration petition was had in 
 
            Burlington, Iowa, on July 31, 1990.  The record consists of 
 
            joint exhibits 1 through 9 and the testimony of claimant and 
 
            Carol Hufendick.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and employer at the time of the alleged injury; 
 
            that if claimant has sustained compensable permanent 
 
            disability, it is an industrial disability to the body as a 
 
            whole.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of her employment in September 1987; whether the 
 
            injury caused temporary or permanent disability, the extent 
 
            of each and the commencement date of the latter; the rate of 
 
            weekly compensation; the extent of claimant's entitlement to 
 
            medical benefits; taxation of costs.
 
            
 
                 Defendants also assert a notice defense under Iowa Code 
 
            section 85.23.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Claimant worked parts of eight days between September 
 
            14 and September 28, 1987 for defendant Niemann Foods, which 
 
            operated a supermarket business.  Deli manager Carol 
 
            Hufendick was her direct supervisor.  Claimant worked in the 
 
            bakery performing various duties, the heaviest part of which 
 
            involved washing steel trays.  She lifted several at a time 
 
            from a wash basin and found this painful to her back.  
 
            Claimant had suffered back pain as early as 1977 and 
 
            suffered a sacral fracture in 1981.
 
            
 
                 Claimant indicated that her back hurt within the first 
 
            day or two and continued to worsen.  During the second week 
 
            of employment, she missed two days, September 26 and 27, 
 
            telling Ms. Hufendick that she was ill.  Claimant indicated 
 
            that she saw her family physician, David Siroospour, M.D., 
 
            on September 28, and that this physician advised her to 
 
            leave the work.  However, Dr. Siroospour's chart notes for 
 
            that date discuss her complaints of upper respiratory 
 
            infection and flu symptoms and note that physical 
 
            examination was unremarkable.  No mention is made of any 
 
            discussion concerning back complaints.
 
            
 
                 Claimant further testified that she returned her apron 
 
            and cap on September 29 and that when Hufendick verbalized 
 
            her hope that Ms. Griffith had not hurt herself working at 
 
            County Market, claimant responded, "I'm sure I did."
 
            
 
                 Claimant was thereafter hospitalized for back 
 
            complaints in early October and finally underwent multiple 
 
            level back surgery in November 1987.  Her medical bills were 
 
            first submitted to a group health plan carrier, and only 
 
            thereafter to defendants in January 1988 at the suggestion 
 
            of a representative of the Social Security Administration.  
 
            Claimant indicated she was unaware that she could make a 
 
            workers' compensation claim, noting that she did not suffer 
 
            any specific traumatic incident while employed by County 
 
            Market.
 
            
 
                 Carol Hufendick testified that she had no recollection 
 
            of claimant telling her of the claimed injury, and that she 
 
            would have prepared an accident report pursuant to her known 
 
            duties if claimant had so advised her.
 
            
 
                 The writer concludes that whatever conversation 
 
            claimant had with Carol Hufendick on September 29, she did 
 
            not make known her contention that she had suffered a work 
 
            injury.  Claimant testified that Dr. Siroospour advised her 
 
            to quit her job only the day before, but Dr. Siroospour's 
 
            notes make no mention whatsoever of back complaints, much 
 
            less a recommendation that she quit her job.  It should also 
 
            be noted that this visit immediately followed two 
 
            consecutive days of missed work, allegedly due to back pain.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            From Dr. Siroospour's chart notes, it appears more likely 
 
            that claimant missed work primarily due to flu symptoms (she 
 
            was also suffering from a severe attack of shingles at and 
 
            shortly after this time).
 
            
 
                 Carol Hufendick testified credibly that if she had been 
 
            informed of a claimed work injury, it was her duty to 
 
            prepare an accident report as she had been trained.  Yet, 
 
            she did not understand from her conversation with claimant 
 
            that any work injury was claimed and did not fill out an 
 
            accident report.
 
            
 
                 Note also that when claimant finally underwent surgery, 
 
            her medical bills were submitted at first to a health 
 
            carrier and not defendants.  While claimant professed 
 
            unfamiliarity with workers' compensation law, it is noted 
 
            that she has been married for many years to a construction 
 
            worker, and it is most unlikely that her husband would be 
 
            similarly unfamiliar with possible workers' compensation 
 
            entitlement, particularly in the case of an injury so severe 
 
            as to require multiple level back surgery.
 
            
 
                 All these facts are much more consistent with 
 
            defendants' contention that claimant did not make known her 
 
            belief that she suffered a work injury in her conversation 
 
            with Carol Hufendick on September 29, 1987.  The first 
 
            notice to defendants that such a claim was made came in 
 
            January 1988, more than 90 days following the alleged 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.23 provides as follows:
 
            
 
                 Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Failure to give notice is an affirmative defense upon 
 
            which defendants bear the burden of proof by a preponderance 
 
            of the evidence.  Mefferd v. Ed Miller & Sons, Inc., 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            191 (App. Decn. 1977).  The test of whether an employer has 
 
            actual knowledge is based on whether a reasonably 
 
            conscientious employer could conclude from the information 
 
            on hand that a workers' compensation claim is in existence.  
 
            Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).  
 
            It has been found as fact that whatever conversation 
 
            claimant had with Carol Hufendick, she failed to convey her 
 
            belief that she had sustained a work injury.  Defendants did 
 
            not have formal notice or actual knowledge of the claim 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            within 90 days.
 
            
 
                 The 90-day limit for notice does not commence running 
 
            until the employee, acting reasonably, knows or should know 
 
            the injury is both serious and work connected.  Jacques v. 
 
            Farmer's Lumber & Supply Co., 242 Iowa 548, 47 N.W.2d 236 
 
            (1951).  However, claimant asserts that she left this job 
 
            because of back pain that she attributes directly to her 
 
            lifting activities at work, and allegedly upon the advice of 
 
            a physician.  Therefore, claimant believed the injury to be 
 
            work connected and knew herself it was serious enough to 
 
            cause her to leave employment by no later than September 29, 
 
            1987.
 
            
 
                 Accordingly, this claim is barred by the notice defense 
 
            of Iowa Code section 85.23.  Other issues are thereby 
 
            rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Phillip Vonderhaar
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2401
 
                           Filed February 4, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOROTHY GRIFFITH,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 878096
 
                      :
 
            NIEMANN FOODS, d/b/a     :      A R B I T R A T I O N
 
            COUNTY MARKET, :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            KEMPER INSURANCE,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            2401
 
            Claimant testified she told her supervisor that she was 
 
            leaving job because of back injury suffered at work (upon 
 
            advice of physician).
 
            However, physician's notes discuss flu symptoms and make no 
 
            mention whatsoever of back.  Supervisor credibly testified 
 
            she would have filled out accident report if claimant had 
 
            made known claim of back injury, and bills for subsequent 
 
            back surgery were submitted to a health carrier.  These 
 
            facts are more consistent with defendants' claim that notice 
 
            was not timely given.  Claim was barred under 85.23.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LISA HESS,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 878415
 
            vs.                           :
 
                                          :
 
            WINNEBAGO INDUSTRIES, INC.,   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ALEXSIS, INC.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on November 13, 1990, in 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein the claimant seeks permanent partial disability 
 
            benefits as a result of an alleged injury to her right upper 
 
            extremity on January 15, 1988.  The record in the proceeding 
 
            consists of the testimony of the claimant; claimant's 
 
            exhibits A, B, C and D; defendants' exhibits 1 and 2; and 
 
            joint exhibits 1 through 14.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged permanent partial 
 
            disability to her right upper extremity is causally 
 
            connected to her alleged January 15, 1988 injury;
 
            
 
                 2.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 3.  Whether claimant is entitled to 85.27 medical 
 
            benefits based on causal connection and whether claimant's 
 
            medical was authorized.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 21-year-old 1987 high school graduate.  
 
            She first began working for defendant employer on July 20, 
 
            1987.  Her limited work history prior to the above date 
 
            involved one week in road construction as a sign holder.
 
            
 
                 Claimant described her work for defendant employer as 
 
            basically rolling fiber glass.  She indicated that the fiber 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            glass is sprayed and then rolled and tapered with a brush to 
 
            remove all the air bubbles.  The roller is like a paint 
 
            roller and is approximately three inches long and one inch 
 
            thick, as described by claimant.  She grips it with her hand 
 
            and rolls it back and forth.  Claimant indicated she did 
 
            this rolling continuously eight hours per day, other than a 
 
            break.  Claimant noticed around the middle of January 1988 
 
            that she started having loss of grip and pain and swelling 
 
            in her right wrist.  Her supervisor referred her to S. K. 
 
            Seth, M.D.  Claimant indicated she was actually complaining 
 
            about both hands as a supervisor had indicated to her that 
 
            she might try switching to her left hand while doing the 
 
            rolling.  Dr. Seth sent claimant back to work and prescribed 
 
            medication.  He then sent claimant to a Dr. Tim Mead, an 
 
            orthopedic specialist, who on February 16, 1988 returned 
 
            claimant back to work on light duty and provided no rolling 
 
            more than two hours per day for the next week.  On February 
 
            23, 1988, M. W. Crane, M.D., took claimant off work for two 
 
            weeks beginning February 23, 1988 up to and including March 
 
            8, 1988.
 
            
 
                 When claimant returned to work on March 9, 1988, she 
 
            was placed in the prep area which was a different job.  This 
 
            job involved pulling parts off of a mold and making sure the 
 
            molds are clean and then applying a wax around the edges.
 
            
 
                 The undersigned noticed that claimant was quite small 
 
            and appeared to weigh less than 100 pounds with very small 
 
            wrists, hands and slender fingers.  This visual impression 
 
            was also similarly reflected in Dr. Crane's February 23, 
 
            1988 notes in which he indicated:
 
            
 
                 She is still having terrible pain in her arms and 
 
                 wrists.  Her complaints really are "carpal tunnel" 
 
                 type of complaint, although she does have 
 
                 numbness, paresthesias, etc.  Most of her true 
 
                 complaint is in the forearm region.  When one 
 
                 stresses her flexor tendons, it is quite obvious 
 
                 that it hurts.  I don't think that she is putting 
 
                 on a show.  She admits to weighing somewhere 
 
                 around 90 lb., and I think that's giving her a few 
 
                 pounds.  Her forearms and wrists are very, very, 
 
                 small.  The circumference of my thumg [sic] and 
 
                 long finger pinched can encircle her largest area 
 
                 of her forearm.  At this time, we will discontinue 
 
                 work, even light duty at her stage is aggravating 
 
                 her arms.
 
            
 
            (Joint Exhibit 4)
 
            
 
                 Claimant left work at defendant employer in May 1988.  
 
            She said she left because things were picking up and she was 
 
            worried about her hand and having to go back to the other 
 
            job.  She also said the doctor was concerned about her 
 
            continuing to work at defendant employer because of her 
 
            size.
 
            
 
                 Claimant then indicated she went to work for Casey's 
 
            General Store cooking pizza and chicken, working 
 
            approximately 25 hours per week and, also, going to Hamilton 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Community College in Mason City.  She worked at Casey's 
 
            beginning in May of 1988 to around January or February 1989.
 
            
 
                 Claimant's medical records show that on February 2, 
 
            1988, a Mr. Witt, a medical assistant at Park Clinic, took 
 
            her off work and eventually made an appointment for claimant 
 
            to see A. J. Wolbrink, M.D., for further evaluation as 
 
            claimant was continuing to have recurrent bilateral volar 
 
            wrist discomfort and localized swelling over the volar 
 
            aspect of both mid forearms in addition to the moderate 
 
            tenderness (Jt. Ex. 9).
 
            
 
                 Claimant finished Hamilton Community College in 
 
            September 1989 but did not again start work until around 
 
            September 1990.  Claimant's course of study at Hamilton 
 
            Community College was with a goal to be a medical secretary.
 
            
 
                 On cross-examination, claimant was asked in reference 
 
            to defendants' exhibits 1 and 2 as to her reason for leaving 
 
            her employment with defendant employer on May 20, 1988.  She 
 
            acknowledged that she had indicated her reason for leaving 
 
            was due to other employment and did not mark the category of 
 
            "health."  She contends that she was having trouble with her 
 
            hands at the time but admitted she did not put that on the 
 
            form.  She said she is not alleging that defendant employer 
 
            didn't put her in lighter work but she did indicate that 
 
            defendants asked her to go to another department for a 
 
            couple of days before putting her back to the prep 
 
            department again.
 
            
 
                 On March 16, 1989, Dr. Wolbrink indicated he first saw 
 
            claimant in February 1989 and in reading her records 
 
            indicated it appeared claimant reached maximum healing for 
 
            her January 1988 injury by March 8, 1988.  He also indicated 
 
            that it appeared she had no permanent impairment from the 
 
            aggravation and injury of January 1988.  Dr. Wolbrink is 
 
            basically referring to Dr. Crane's notes of March 8, 1988 
 
            (Jt. Ex. 14, p. 20) in which claimant indicated her pain was 
 
            much improved and his March 22, 1988 notes (Jt. Ex. 14, p. 
 
            21) which indicates claimant is doing very well.
 
            
 
                 Claimant then went to Dr. Jerome G. Bashara on August 
 
            18, 1989 for an evaluation through a referral by claimant's 
 
            attorney.  Dr. Bashara opined:
 
            
 
                    I would give this patient a 3% permanent 
 
                 partial physical impairment of the upper extremity 
 
                 related to this condition.
 
            
 
                    I do believe that this is directly related to 
 
                 her work injury in 1988 at the Winnebago Company.  
 
                 I base this on the fact that she was still on 
 
                 restricted activity and was having some difficulty 
 
                 with the wrist and hand during the last 
 
                 orthopaedic visit in March of 1988.  When she quit 
 
                 working at the company in May, she was still under 
 
                 work restrictions that had been placed on her by 
 
                 her orthopaedic physician.
 
            
 
            (Jt. Ex. 13)
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 One of defendants' contention in this case is that 
 
            there had been a lapse of time from around March 22, 1988 to 
 
            February 2, 1989 in which claimant did not see a doctor and 
 
            she incurred bills which were represented by claimant's 
 
            exhibits A, B, C and D after claimant started school and 
 
            working at Casey's.
 
            
 
                 It appears from the medical records that claimant did 
 
            have a lessening of her medical complaints that originated 
 
            with her work at Winnebago.  The undersigned finds that 
 
            although there was a lessening, the underlying condition 
 
            that began with her work at Winnebago using the roller in 
 
            rolling the fiber glass caused a condition in the claimant 
 
            which was aggravated when she attempted to do other work 
 
            using her arms and hands.  Claimant is of slight stature 
 
            with small arms and hands.  It would appear that once her 
 
            condition that began at defendant employer is slightly 
 
            aggravated, it will resurrect claimant's original problems.  
 
            There is no evidence that claimant had any problems prior to 
 
            working for defendant employer.  This problem that claimant 
 
            has apparently happens often at defendant employer.  Dr. 
 
            Mead mentioned on February 16, 1988 (Jt. Ex. 4), "At this 
 
            time, this again is a young female working this job of 
 
            rolling at Winnebago.  We see many problems with tendinitis 
 
            here.  I think she has again this similar type of flexor 
 
            tendinitis."
 
            
 
                 We have disagreement among doctors as to the extent of 
 
            claimant's impairment.  Dr. Wolbrink opined no impairment 
 
            and Dr. Bashara opined a 3 percent permanent impairment.  
 
            The undersigned finds the greater weight of medical evidence 
 
            and history involving this claimant shows that she does have 
 
            a permanent impairment.  The undersigned believes that Dr. 
 
            Bashara under the circumstances of this case is more 
 
            accurate.  The undersigned finds claimant has a 3 percent 
 
            permanent impairment of her upper extremity.  The 
 
            undersigned further finds that this permanent impairment is 
 
            causally connected to her injury of January 15, 1988, which 
 
            injury arose out of and in the course of claimant's 
 
            employment.
 
            
 
                 The parties have stipulated that claimant was, in fact, 
 
            off work from February 23, 1988 to and including March 8, 
 
            1988, for which defendants paid two weeks of temporary total 
 
            disability benefits at the rate of $142.34, which amount 
 
            defendants agreed that they did, in fact, owe.  The 
 
            undersigned finds that claimant was actually off 15 days, 
 
            since 1988 was a leap year, so claimant is owed 2.143 weeks.  
 
            Since the undersigned has found permanent partial 
 
            disability, this 2.143 weeks is considered healing period.  
 
            The undersigned further finds that claimant is entitled to 
 
            7.5 weeks of permanent partial disability benefits (3% x 250 
 
            weeks = 7.5) at the rate of $142.34 per week.  Said benefits 
 
            are to begin March 9, 1988.
 
            
 
                 The remaining issue for resolution involves 85.27 
 
            benefits.  Since the undersigned has found causal 
 
            connection, the undersigned finds that any medical benefits 
 
            awarded hereafter are, in fact, causally connected to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant's January 15, 1988 injury.  Claimant's Exhibit A 
 
            indicates the 85.27 medical expenses in dispute amounts to 
 
            $224.40, which was incurred from Park Clinic.  The 
 
            undersigned finds that this clinic was used by claimant 
 
            through the company doctors or referrals from them and that 
 
            defendants shall pay this amount.  There is also evidence 
 
            concerning mileage claimant incurred in seeing doctors 
 
            involving her medical that has now been held to have been 
 
            authorized.  This mileage amounts to four 40 mile round 
 
            trips and three 110 mile round trips.  Defendants shall 
 
            reimburse claimant for 490 miles at $.21 per mile.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 15, 
 
            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). 
 
            
 
                 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).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.34(2)(m) provides:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    The loss of two-thirds of that part of an arm 
 
                 between the shoulder joint and the elbow joint 
 
                 shall equal the loss of an arm and the 
 
                 compensation therefor shall be weekly compensation 
 
                 during two hundred fifth weeks.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a healing period beginning February 
 
            23, 1988 to and including March 8, 1988, which involved 
 
            2.143 weeks of benefits at the rate of $142.34 per week.
 
            
 
                 Claimant incurred a 3 percent permanent partial 
 
            impairment of her upper right extremity, which impairment is 
 
            causally connected to her January 15, 1988 work injury.
 
            
 
                 Defendants shall pay the Park Clinic bill in the amount 
 
            of $224.40, which bill is causally connected to claimant's 
 
            January 15, 1988 injury and which services were authorized 
 
            under the provisions of Iowa Code section 85.27.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant two point one 
 
            four three (2.143) weeks of healing period benefits for the 
 
            period beginning February 23, 1988 to and including March 8, 
 
            1988, at the rate of one hundred forty-two and 34/100 
 
            dollars ($142.34) per week.
 
            
 
                 That defendant shall pay unto claimant seven point five 
 
            (7.5) weeks of permanent partial disability benefits at the 
 
            rate of one hundred forty-two and 34/100 dollars ($142.34) 
 
            per week, beginning March 9, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid two (2) weeks of healing period benefits at the rate of 
 
            one hundred forty-two and 34/100 dollars ($142.34) per week.
 
            
 
                 That defendants shall pay the two hundred twenty-four 
 
            and 40/100 dollars ($224.40) to Park Clinic or reimburse 
 
            claimant if she has already paid the bill.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Rule 343 IAC 3.1
 
            
 
                 Signed and filed this _____ day of November, 1990.
 
            
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            1913 Ingersoll Ave
 
            Des Moines IA 50309-3320
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            P O Box 9130
 
            Des Moines IA 50306-9130
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 5-1108
 
                      Filed November 29, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LISA HESS,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 878415
 
            vs.                           :
 
                                          :
 
            WINNEBAGO INDUSTRIES, INC.,   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ALEXSIS, INC.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803; 5-1108
 
            Claimant awarded 7.5 weeks of permanent partial disability 
 
            benefits based on a 3% impairment to her upper right 
 
            extremity which was caused by a work injury.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed July 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DWIGHT L. NICHOLS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 878455
 
            MAHARISHI INTERNATIONAL       :
 
            UNIVERSITY,                   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            BITUMINOUS CASUALTY CORP.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            9998
 
            Summary affirmance of deputy's decision.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DWIGHT L. NICHOLS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                         File No. 878455
 
         MAHARISHI INTERNATIONAL
 
         UNIVERSITY,                                 A R B I T R A T I 0 
 
         N
 
         
 
             Employer,                                   D E C I S I 0 N
 
         
 
         and
 
         
 
         BITUMINOUS CASUALTY CORP.,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Dwight L. Nichols against defendant employer Maharishi 
 
         International University and defendant insurance carrier 
 
         Bituminous Casualty Corporation to recover benefits under the 
 
         Iowa Workers' Compensation Act as the result of injuries 
 
         sustained on February 15, 1988.  This matter came on for hearing 
 
         before the undersigned in Ottumwa, Iowa, on January 18, 1990, and 
 
         was considered fully submitted at the close of hearing.
 
         
 
              The record in this proceeding consists of joint exhibits 1 
 
         through 3 and the testimony of claimant and Bonnie Jo Nichols.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the following issues have been 
 
         stipulated:  that an employment relationship existed between 
 
         claimant and employer at the time of injury; that
 
         claimant sustained an injury on February 15, 1988, arising out of 
 
         and in the course of that employment; that the injury caused 
 
         temporary and permanent disability; that claimant is entitled to 
 
         compensation for healing period benefits from February 16, 1988 
 
         through March 8, 1988; that claimant suffered permanent 
 
         disability to the thumb; that the
 
         
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         commencement date for permanent partial disability is March 9, 
 
         1988; that the appropriate rate of weekly compensation is 
 
         $123.25; that all requested medical benefits have been or will be 
 
         paid by defendants; that defendants paid claimant 3.143 weeks of 
 
         healing period benefits and 15 weeks of permanent partial 
 
         disability benefits at the stipulated rate prior to hearing.
 
         
 
              The sole issue presented for resolution is the extent of 
 
         claimant's permanent disability.  Defendants have taken the 
 
         position that disability to a scheduled member must be determined 
 
         by impairment ratings issued by physicians.  Claimant takes the 
 
         position that the agency can undertake a functional analysis of 
 
         his thumb injury, taking into account lack of usefulness of the 
 
         thumb in everyday activities.
 
         
 
              On December 15, 1989, defendants filed an offer to confess 
 
         judgment in the amount of 40 percent of the thumb inclusive of 
 
         costs with credit claimed for the 25 percent disability of the 
 
         thumb previously paid.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that while employed in the janitorial 
 
         department of defendant University, he was injured while helping 
 
         remove a transmission at the motor pool.  The transmission 
 
         dropped on the distal phalanx of his right thumb and caused a 
 
         crush injury.  Claimant is right-hand dominant.
 
         
 
              Claimant complains currently of continued pain in the distal 
 
         phalanx of his right thumb, particularly the underside.  That 
 
         digit is somewhat swollen and  deformed  with scar tissue and 
 
         bears a deformed thumbnail.  The distal phalanx is numb, subject 
 
         to bleeding with minor bumps and bruises and is bothered by cold 
 
         weather.
 
         
 
              Claimant testified that due to the numbness, loss  of range 
 
         of motion and continued fear of reinjury relating to his thumb, 
 
         he has lost substantial use of the hand, particularly by reason 
 
         of diminished grip strength.  He is unable to use small tools, 
 
         has problems dressing himself (particularly buttons), problems 
 
         even cutting his food, and an inability to engage in sports 
 
         (e.g., holding a bowling ball or softball bat), and cannot drive 
 
         a manual transmission vehicle at work.
 
         
 
              Claimant displayed his injured thumb at hearing.  He agreed 
 
         that scarring and deformation did not extend below the 
 
         interphalangeal joint.  He agreed on cross-examination
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 3
 
         
 
         
 
         that the transmission fell on that distal phalanx, both on and 
 
         distal to the joint, but not proximal to the joint.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he grips with his right hand as well 
 
         as possible, but that his grip strength is inadequate.  Because 
 
         he cannot bend his thumb at the  first interphalangeal joint, he 
 
         is unable to grip items with an encircling motion of the thumb.  
 
         However, and at greatly reduced strength, he is able to use the 
 
         thumb in a lever or pincer movement to trap items against his 
 
         fingers.
 
         
 
              Claimant testified that he does not tape his thumb down to 
 
         keep it out of the way and that he no longer uses a plastic guard 
 
         over the thumb, last using such a device approximately one year 
 
         prior to hearing.
 
         
 
              Bonnie Jo Nichols testified that she is claimant's spouse 
 
         and that she knew him before the work injury.  She testified that 
 
         claimant uses his right hand differently now as opposed to before 
 
         the work  injury.  She describes claimant as using the right hand 
 
         to grip, but only with the fingers and not the thumb.  She agreed 
 
         that claimant continues to complain of pain in the thumb and that 
 
         it bleeds easily when bumped.
 
         
 
              Claimant was first seen for treatment by James H. Dunlevy, 
 
         M.D.  His notes of February 15, 1988 show that claimant had 
 
         suffered a crushing wound to the tip of the right thumb.  X-ray 
 
         confirmed comminuted fracture of the distal phalanx, but fracture 
 
         lines did not appear to extent into the joint space.
 
         
 
              Claimant was seen on several occasions and was returned, to 
 
         full duty-effective March 9, 1988.  After seeing claimant on 
 
         several other occasions, Dr. Dunlevy wrote in the chart of May 
 
         27, 1988, that claimant had lost 40 degrees of flexion extension 
 
         from the terminal phalanx of the thumb, equalling 23 percent 
 
         impairment of the thumb.  Dr. Dunlevy converted that loss to a 
 
         nine percent impairment of  the hand, converted that to an eight 
 
         percent impairment of the upper extremity, and converted that to 
 
         a five percent impairment of the whole person.
 
         
 
              Dr. Dunlevy wrote Bituminous Insurance Company on May 20, 
 
         1988 to state that when claimant was last  evaluated on April 12, 
 
         1988 he had a 50 percent restricted range of motion in the right 
 
         thumb at the distal joint and that this would translate to a 25 
 
         percent impairment of the thumb.  However, he wrote claimant's 
 
         attorneys on May 31, 1988 to reiterate that claimant had 
 
         sustained a 40 degree loss of flexion extension, which he stated 
 
         equalled a 23 percent
 
         
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 4
 
         
 
         
 
         impairment of the thumb.  Dr. Dunlevy again converted that figure 
 
         to an impairment rating of the whole person.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was also seen for evaluation by Marc E. Hines, 
 
         M.D., a board-certified neurologist.  Dr. Hines wrote on October 
 
         1, 1988 that claimant had a 50 percent loss of flexion of the 
 
         terminal phalanx of the thumb, which he equated with a 28 percent 
 
         impairment of the  thumb, itself equating to an 11 percent 
 
         impairment of the hand under the American Medical Association 
 
         Guides to the Evaluation of Permanent Impairment, Second Edition.  
 
         However, Dr. Hines noted that in addition, claimant had a median 
 
         nerve crush injury to the radial side of the thumb and the ulnar 
 
         side of the thumb in the distal digit which caused significant 
 
         impairment due to loss of function due to sensory deficit, pain 
 
         and discomfort of 4 percent and 8 percent respectively.  This 
 
         constituted an additional 12 percent loss of use of the thumb, 
 
         which, using the AMA guidelines, gave a 5 percent impairment of 
 
         the hand.
 
         
 
              Dr. Hines also stated that claimant had an additional 11 
 
         percent impairment of the hand, but did not explain how, if at 
 
         all, this related to claimant's thumb injury.
 
         
 
              Dr. Hines noted on his evaluation that claimant's thumb had 
 
         decreased range of motion in the last digit and hypersensitivity 
 
         to touch.
 
         
 
              On October 31, 1989, Dr. Hines wrote defendants' attorney to 
 
         clarify that he did not intend to imply that claimant had 
 
         disability to the upper extremity other than that in the thumb.
 
         
 
              On December 16, 1989, Dr. Hines wrote claimant's counsel as 
 
         follows:
 
         
 
              Thank you for your inquiry concerning Dwight
 
              Nichols.  As you know, I have previously given
 
              Dwight an impairment rating, and found that, in
 
              fact, the function of the thumb is markedly
 
              impaired due to changes in range of motion and
 
              pain.  Notable, however, in an impairment rating
 
              is the absence of the actual functional usefulness
 
              of the thumb with this kind of condition; the
 
              attempt in the medical impairment rating being to
 
              only measure that amount of residual function that
 
              is possible, whether or not there is any
 
              functional usefulness for it.
 
              
 
              In fact, because of the pain and limitation in
 
              motion, Mr. Nichols thumb is basically a useless
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 5
 
         
 
         
 
              appendage, and, in fact, he would be clearly
 
              better off had he lost the thumb entirely than
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              have this result, since he is unable to use the
 
              thumb and it gives his [sic] pain when he does
 
              attempt to use it, or pain when he inadvertently
 
              bumps or otherwise irritates it.  Additionally,
 
              the patient will often have the thumb actually get
 
              in the way when he is attempting to make movements
 
              in which he cannot use the thumb effectively.
 
              
 
              For all of these reasons, I feel that his thumb  is
 
              basically functionless for him in the work and
 
              everyday living situation.  I hope that this
 
              clarifies the actual functional ability of the
 
              thumb, given the mixture of abnormalities that he
 
              suffers from.
 
         
 
              On December 30, 1989, Dr. Dunlevy wrote defense counsel to 
 
         indicate his surprise that Dr. Hines felt claimant would be 
 
         better off with no thumb at all.  He again stated that he had 
 
         measured a 40 percent loss of flexion of the terminal phalanx 
 
         which would equal a 23 percent impairment of the thumb.  He noted 
 
         that Dr. Hines had made an additional judgment of nerve loss 
 
         and/or pain, which would double the loss of function when 
 
         converted to the whole person.  Dr. Dunlevy stated:  "In that 
 
         pain and numbness was not obvious to the patient or me in the 
 
         earlier examination I have no way of re-phrasing my estimation at 
 
         this point."
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.34(2)(a) provides that the compensation 
 
         for the loss of the thumb is 60 weeks.  The parties have 
 
         stipulated that claimant's injury is a scheduled member injury to 
 
         the right thumb.  The parties dispute whether the impairment 
 
         ratings issued by the physicians are an appropriate standard for 
 
         determining his actual loss of use in the thumb.
 
         
 
              Dr. Hines specifically relied upon the American Medical 
 
         Association Guides to the Evaluation of Permanent Impairment in 
 
         issuing his rating. Although Dr. Dunlevy did not specify that he 
 
         relied on the AMA guides, a review of tables 1, 2 and 3 in 
 
         Chapter 3 ("The Extremities, Spine and Pelvis") show that his 
 
         conversion figures are identical with those published by the 
 
         American Medical Association.
 
         
 
              The issue presented was recently the subject  under review 
 
         in Leohr v. R & A Trucking, file number 812964 (App. Decn. 
 
         November 30, 1989).  The appeal decision adopted the
 
         
 
         
 
         
 
         NICHOLS V. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 6
 
         
 
         
 
         analysis of an earlier arbitration decision filed October 26, 
 
         1988, and added one paragraph discussed infra.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The arbitration decision noted that various physicians gave 
 
         impairment ratings ranging from 58 percent to 65 percent of that 
 
         claimant's hand.  Leohr argued that the issue was the extent of 
 
         disability and not simply the extent of impairment, precisely the 
 
         issue raised by claimant in  the case under review.  The deputy 
 
         observed that she could find no basis for the argument that 
 
         compensating a scheduled loss through a medical impairment rating 
 
         is compensation which fails to compensate for disability.  She 
 
         noted that claimant argued that an assessment of loss should be 
 
         as demonstrated at hearing and not as evaluated by physicians in 
 
         that the loss related to claimant's ability to function in daily 
 
         life activities of various sorts, whereas the impairment ratings 
 
         reached by physicians generally concentrated of claimant's 
 
         demonstrable loss of motion and diagnosed medical conditions as 
 
         opposed to those daily life limitations.
 
         
 
              The deputy noted that claimant in that case asked the agency 
 
         to substitute its judgment for that of the  physicians assessing 
 
         impairment.  While agreeing that Leohr had a substantial loss of 
 
         use in the hand and further noting that one physician stated that 
 
         AMA guides do not account for loss of pinch function related 
 
         conditions, the deputy did not agree that her subjective, 
 
         nonmedical judgment would result in a more accurate assessment of 
 
         loss of use than results obtained under the AMA guides.  She 
 
         wrote:
 
         
 
              While, as claimant notes, the AMA  guides rely
 
              primarily on loss of range of motion in assessing
 
              the loss of use to the hand, no showing has been
 
              made that the degree of that loss evaluation does
 
              not correlate significantly with the degree of
 
              loss which might be found by assessing other
 
              losses of function such as the pinch, grip and
 
              grasping losses which claimant possesses.  We will
 
              rely upon the doctors' assessments of impairment
 
              in assessing claimant's loss of use.
 
         
 
              The case at hand presents essentially the same problem.  In 
 
         addition, claimant has presented evidence that Dr. Hines believes 
 
         his thumb to be basically functionless in the work and everyday 
 
         living situation.  That is to say, Dr. Hines has evaluated 
 
         claimant's impairment under the AMA guidelines, but also offered 
 
         his subjective opinion as to claimant's actual loss in everyday 
 
         terms.  A physician is incompetent to render opinions as to the 
 
         extent of industrial disability.  The same logic applies here, 
 
         where a physician expresses an opinion as to the extent of
 
         
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 7
 
         
 
         
 
         claimant's loss in the everyday world as opposed to measuring 
 
         quantifiable loss pursuant to such guidelines as the American 
 
         Medical Association  guidelines that apparently both physicians 
 
         used.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In addition to adopting the deputy's analysis in Leohr v. R 
 
         & A Trucking, the industrial commissioner added the following 
 
         paragraph:
 
         
 
              Claimant is correct in stating that the industrial
 
              commissioner and deputy industrial commissioners
 
              are not bound by the impairment-ratings of
 
              physicians in assessing disability for scheduled
 
              injuries.  However, a review of the deputy's
 
              decision reveals that she properly considered the
 
              law and the evidence presented.  In this case the
 
              deputy and the undersigned determined a physicians
 
              rating of impairment to be correct.  That does not
 
              mean that evidence in another case might point to
 
              a different conclusion.
 
         
 
              The issue presented in this case is indistinguishable to the 
 
         undersigned from the issue presented in Leohr v. R & A Trucking. 
 
          This writer accepts as accurate claimant's testimony that the 
 
         impairment of his thumb has had far reaching effects on his daily 
 
         life.  In Leohr, the deputy agreed that claimant had a 
 
         substantial loss of use of his hand.  The only distinction in 
 
         evidence is that in this case a physician has also opined that 
 
         claimant has suffered a loss of function greater than might be  
 
         obtained  using  the AMA guides.  As noted in the findings of 
 
         fact in the Leohr appeal decision, the AMA guides do not account 
 
         for the function of pinch, grip, hook and push in determining 
 
         impairment and primarily assess range of motion instead.
 
         
 
              It is plain that the assessment of loss in scheduled member 
 
         disability cases can be arbitrary.  The mere fact that a schedule 
 
         has been enacted which evaluates the loss of each claimant 
 
         without regard to personal factors guarantees that result.  One 
 
         commentator has noted that the loss of a foot by a clerical 
 
         worker does not have the same significant as the loss of a foot 
 
         by a ballet dancer, yet both recover the same compensation.  
 
         Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, 
 
         section 13-4.  In a concurring decision, Justice McCormick noted 
 
         that the schedule brings a windfall to the worker in some cases 
 
         and gross hardship to the worker in others and referred  to the 
 
         statute as "anachronistic."  Graves v. Eagle Iron Works, 331 
 
         N.W.2d 116 (Iowa 1983).  Yet, the legislature has seen fit to 
 
         enact a schedule of compensation for certain bodily parts and 
 
         this agency is bound to honor the statute.
 
         
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 8
 
         
 
         
 
              Based on the foregoing, it is held that claimant shall be 
 
         compensated based on the impairment ratings reached by his 
 
         physicians and not based on what this writer or Dr. Hines might 
 
         perceive as claimant's actual loss in terms of his daily life.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Dunlevy found claimant to have a 23 percent impairment 
 
         of the thumb based on 40 degrees loss in range of motion.  While 
 
         he wrote on May 20, 1988 that claimant had a 50 percent 
 
         restricted range of motion and a 25 percent impairment, he 
 
         apparently reverted to his original position in his letter of May 
 
         31, 1988 and again on December 30, 1989.
 
         
 
              Dr. Hines found a 50 percent loss of flexion, which equated 
 
         with a 28 percent impairment of the thumb, but also assessed a 12 
 
         percent loss of use of the thumb by reason of sensory deficit, 
 
         pain and discomfort.  Thus, Dr. Hines found claimant to have 
 
         sustained a 40 percent impairment of his right thumb.
 
         
 
              Claimant testified to a loss of sensation in the distal 
 
         phalanx of his right thumb.  Dr. Dunlevy did not believe that 
 
         claimant had pain or numbness that was obvious to claimant or to 
 
         him.  Claimant's testimony was credible.  Dr. Hines is a 
 
         board-certified neurologist, and this writer sees no reason to 
 
         disregard his assessment of impairment based upon neurological 
 
         deficit.
 
         
 
              Based on the foregoing, it is held that claimant has 
 
         sustained a 40 percent impairment to his right thumb. Therefore, 
 
         he will be awarded 24 weeks of permanent partial disability.
 
         
 
              Defendants offered to confess judgment on December 15, 1989 
 
         in the amount of 40 percent disability of claimant's thumb, the 
 
         same impairment rating found herein.  This offer to confess 
 
         judgment postdated the appeal decision in Leohr v. R & A 
 
         Trucking, although by only 15 days.  Based on the offer to 
 
         confess judgment, costs in this matter shall be assessed to 
 
         claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by Maharishi International 
 
         University on February 15, 1988.
 
         
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 9
 
         
 
         
 
              2.  On that date, claimant suffered a crush injury to the 
 
         distal phalanx of his right thumb which the parties have 
 
         stipulated arose out of and in the course of that employment.
 
         
 
              3.  Claimant has been paid healing period benefits as per 
 
         his stipulated entitlement to the same.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              4.  As stipulated, claimant's rate of compensation is 
 
         $123.25 per week.
 
         
 
              5.  As stipulated, defendants have paid claimant permanent 
 
         partial disability of 15 weeks prior to hearing.
 
         
 
              6.  Claimant has a loss of use of his right thumb to the 
 
         degree of 40 percent.
 
         
 
              7.  Defendants filed an offer to confess judgment to the 
 
         extent of 40 percent disability of the thumb on December 15, 
 
         1989.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant has established that he is entitled to 
 
         permanent partial disability benefits of 40 percent of the right 
 
         thumb.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay claimant permanent partial disability 
 
         benefits for an additional nine (9) weeks at the stipulated rate 
 
         of one hundred twenty-three and 25/100 dollars ($123.25), 
 
         totalling one thousand one hundred nine and 25/100 dollars 
 
         ($1,109.25).
 
         
 
              As all benefits have accrued as of the date of this 
 
         decision, they shall be paid in a lump sum together with 
 
         statutory interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed to claimant pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         NICHOLS v. MAHARISHI INTERNATIONAL UNIVERSITY
 
         Page 10
 
         
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 23rd day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. J. W. McGrath
 
         Attorney at Law
 
         Fourth & Dodge Street
 
         P.O. Box 453
 
         Keosauqua, Iowa  52565
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803, 2507,
 
                                         Filed January 23, 1990
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DWIGHT L. NICHOLS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 878455
 
         MAHARISHI INTERNATIONAL
 
         UNIVERSITY,                               A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         BITUMINOUS CASUALTY CORP.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Neurologist opined that claimant had 40 percent loss of 
 
         thumb under AMA Guides, but also that the thumb was essentially 
 
         useless for work and everyday living.  Citing Leohr v. R & A 
 
         Trucking, it was held that deputy should adopt rating based on 
 
         quantifiable guidelines as opposed to an "industrial disability" 
 
         approach to scheduled member loss.  Physician was held 
 
         incompetent to express opinion as to claimant's loss in terms of 
 
         work and everyday life.
 
         
 
         2507
 
         
 
              Where defendants filed an offer to confess judgment for the 
 
         same amount of disability deputy eventually awarded in scheduled 
 
         member loss, costs were assessed to claimant.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
      MARY GOTHIER,
 
 
 
           Claimant,
 
 
 
      vs.
 
                                                   File No. 878522
 
      IOWA PORK INDUSTRIES n/k/a,
 
      DAKOTA PORK INDUSTRIES,                       A P P E A L
 
 
 
           Employer,                              D E C I S I O N
 
 
 
      CNA INSURANCE COMPANIES,   
 
 
 
           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 
 
 March 26, 1991 is affirmed and is adopted as the final agency 
 
 action in this case.
 
 
 
 Defendants shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript.
 
 
 
 Signed and filed this 25th day of August, 1992.
 
 
 
 
 
 
 
 
 
                                        BYRON K. ORTON
 
                                   INDUSTRIAL COMNISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Gary L. Johansen
 
 Attorney at Law
 
 508 Davidson Building
 
 Sioux City, Iowa  51101
 
 
 
 Mr. Nichael P. Jacobs
 
 Attorney at Law
 
 Suite 300, Toy Building
 
 Sioux City, Iowa  51101
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                  9998
 
                                                  Filed August 25, 1992
 
                                                  BYRON K. ORTON
 
                               
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
      MARY GOTHIER,
 
 
 
           Claimant,
 
 
 
      vs.
 
                                                  File No. 878522
 
      IOWA PORK INDUSTRIES n/k/a,
 
      DAKOTA PORK INDUSTRIES,                      A P P E A L
 
 
 
           Employer,                             D E C I S I O N
 
 
 
      and
 
 
 
      CNA INSURANCE COMPANIES,
 
 
 
        Insurance Carrier, 
 
        Defendants.
 
        
 
        
 
 9998
 
 
 
 Summary affirmance of deputy's decision filed March 26, 
 
 199 1 .
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY GOTHIER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 878522
 
            IOWA PORK INDUSTRIES n/k/a    :
 
            DAKOTA PORK INDUSTRIES,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Mary 
 
            Gothier, claimant, against Iowa Pork Industries n/k/a Dakota 
 
            Pork Industries, employer (hereinafter referred to as 
 
            Dakota), and CNA Insurance Companies, insurance carrier, 
 
            defendants, for workers' compensation benefits as a result 
 
            of an alleged injury on March 4, 1988.  On November 21, 
 
            1990, a hearing was held on claimant's petition and the mat
 
            ter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On March 4, 1988, claimant received an injury which 
 
            arose out of and in the course of his employment with Dakota 
 
            Pork.
 
            
 
                 2.  Claimant's entitlement to healing period benefits 
 
            extends from March 9, 1988 through January 8, 1989 and per
 
            manent partial disability benefits shall begin on January 9, 
 
            1989.
 
            
 
                 3.  Claimant has permanent industrial disability, the 
 
            extent of which is in dispute.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits in this proceeding shall be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            $192.39.
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the dis
 
            ability.  From her demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant is a former meat packinghouse worker.  She 
 
            worked for various meat processing firms over a 15 year 
 
            period begin in 1973 except for approximately six months 
 
            when she remained home to care for her children.  For most 
 
            of the time, claimant worked for Dakota Pork and its prede
 
            cessor company, Iowa Pork.  This work consisted of manual 
 
            labor work in the boning and packaging of hams.
 
            
 
                 On the date of the work injury (which was a Friday), 
 
            claimant was assisting in the transportation of heavy bun
 
            dles of cardboard which are later folded as needed into 
 
            boxes.  Claimant was injured while attempting to stop one of 
 
            these large heavy bundles from falling over.  Claimant tes
 
            tified that she immediately felt pain in her right shoulder 
 
            and back area.  This pain increased over the weekend and on 
 
            the following Monday she sought treatment from a local fam
 
            ily practice physician.  This doctor diagnosed a muscle 
 
            strain of the back and shoulder and prescribed medication.  
 
            Claimant returned to work the next Tuesday but was unable to 
 
            continue due to pain.  She was then referred to an orthope
 
            dic surgeon, Duane Nelson, M.D.  Dr. Nelson then began a 
 
            treatment program for claimant for a condition he described 
 
            as a sprain of the right shoulder and back and this treat
 
            ment continued through April of 1989.  Although claimant 
 
            improved, claimant continued to suffer chronic pain for what 
 
            Dr. Nelson described as "[c]hronic thoracic spine pain, most 
 
            likely neuromuscular in etiology."  Physical therapy also 
 
            failed to improve claimant's condition.  Claimant was 
 
            referred to other orthopedic surgeons during this course of 
 
            treatment, including John J. Dougherty, M.D.  In January 
 
            1989, Dr. Nelson felt that claimant's condition was 
 
            permanent.
 
            
 
                 As a result of the injury of March 4, 1988, claimant 
 
            has a nine percent permanent partial impairment to the body 
 
            as a whole.  This finding is based upon the views of the 
 
            primary treating physician, Dr. Nelson, who opined that 
 
            claimant had such an impairment.  Dr. Nelson also felt that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant should not return to manual labor work and should 
 
            seek vocational retraining.  Dr. Dougherty had stated in 
 
            October 1988 that he could not rate claimant's impairment as 
 
            he did not believe claimant was as truly disabled as she 
 
            claimed.  His opinion was rejected because claimant appeared 
 
            reasonable and credible at hearing.  Defendants, in their 
 
            brief, point to a physical examination claimant had in 
 
            October of 1989 by F. J. Kissel, M.D., prior to claimant 
 
            entering into a nurse's training program.  Defendants state 
 
            that claimant was found normal in this examination and all 
 
            physical aspects.  This simply is untrue.  On page 13 of 
 
            exhibit 1, Dr. Kissel clearly stated that claimant was nor
 
            mal except for the shoulder problems from the work injury.  
 
            At no time did Dr. Kissel indicate that these problems had 
 
            resolved prior to the examination.
 
            
 
                 Defendants emphasize that claimant returned to work 
 
            between March and August 1989 and quit the employment at 
 
            Dakota Pork only to attend a nursing school.  Indeed, 
 
            claimant did return to work under a release to do so by Dr. 
 
            Nelson during this period of time but he only released her 
 
            to two light duty jobs out of a total of 400 at the plant.  
 
            Claimant testified that she still had difficulties with this 
 
            light duty work such as washing and scrubbing walls and 
 
            floors.  Claimant then left packinghouse work to seek more 
 
            suitable work upon the advice of Dr. Nelson.
 
            
 
                 As a result of the work injury of March 4, 1988, 
 
            claimant has suffered a 50 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was 
 
            excellent and she had no functional impairments or ascer
 
            tainable disabilities.  Claimant was able to fully perform 
 
            physical tasks involving heavy lifting and repetitive lift
 
            ing.  Due to her physical limitations, claimant was unable 
 
            to return to her former work at Dakota Pork or any other 
 
            heavy manual labor work.  Claimant is 38 years of age and 
 
            should be in the most productive years of her life.  The 
 
            affect of her disability upon her earning capacity is much 
 
            more than would be the case for a younger or an older indi
 
            vidual.  Claimant to date only has a high school education.  
 
            Most of her work involves manual labor, either in a packing
 
            house environment or in nurse's aide work.  A vocational 
 
            rehabilitation counselor indicated to claimant that she will 
 
            have difficulties finding a job with a salary comparable to 
 
            her wages at Dakota.
 
            
 
                 However, claimant is attempting vocational rehabilita
 
            tion by entering into nurse's training without assistance 
 
            from Dakota Pork.  This job could pay wages which are equiv
 
            alent to or exceeding her job at Dakota Pork.  However, her 
 
            successful completion of the program and a successful job 
 
            search following the program is very speculative at this 
 
            point in time.  She had to drop out of this program already 
 
            once due to the needs of her family.  She may have to do so 
 
            again.  She must rely on her own finances to go to school.  
 
            Also, nursing work requires physical stamina in the care of 
 
            patients and she likely will have difficulty finding employ
 
            ment with the history of back problems from a work injury.
 
            
 
                                conclusions of law
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence the extent of weekly benefits for permanent disability 
 
            to which claimant is entitled.  As the claimant has shown 
 
            that the work injury was a cause of a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  The extent to which a work injury and 
 
            a resulting medical condition has resulted in an industrial 
 
            disability is determined from examination of several fac
 
            tors.  These factors include the employee's medical condi
 
            tion prior to the injury, immediately after the injury and 
 
            presently; the situs of the injury, its severity and the 
 
            length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
            N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, 
 
            Inc., (Appeal Decision, February 28, l985).
 
            
 
                 It was found that claimant's successful completion of 
 
            the program and a successful job search thereafter is highly 
 
            uncertain and speculative.  This agency is decided that an 
 
            assessment of future success of retraining is improper in an 
 
            industrial disability case.  Such an assessment is too spec
 
            ulative.  It is only claimant's present, not future, earning 
 
            capacity which is to be measured in awarding permanent dis
 
            ability benefits.  Stewart v. Crouse Cartage Company, Appeal 
 
            Decision filed February 20, 1987; Umphress v. Armstrong 
 
            Rubber Co., Appeal Decision Filed August 27, 1987.  
 
            Therefore, claimant's present industrial disability will be 
 
            fully compensated.  Certainly, if claimant's educational 
 
            pursuits are eventually successful, this agency is available 
 
            upon proper petition by defendants to review this award at a 
 
            later date.
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 50 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 250 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 50 percent of 500 weeks, the maximum allowable num
 
            ber of weeks for an injury to the body as a whole in that 
 
            subsection.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at the 
 
            rate of one hundred ninety-two and 39/l00 dollars ($192.39) 
 
            per week from January 9, 1989.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits as stipulated by the parties.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            weekly benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Gary L. Johansen
 
            Attorney at Law
 
            508 Davidson Bldg
 
            Sioux City  IA  51101
 
            
 
            Mr. Michael P. Jacobs
 
            Attorney at Law
 
            300 Toy National Bank Bldg
 
            Sioux City  IA  51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801
 
                           Filed March 26, 1991
 
                           LARRY P. WALSHIRE
 
             before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARY GOTHIER,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :        File No. 878522
 
            IOWA PORK INDUSTRIES n/k/a    :
 
            DAKOTA PORK INDUSTRIES,  :     A R B I T R A T I O N
 
                      :
 
                 Employer, :        D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            CNA INSURANCE COMPANIES, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801
 
            Extent of disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM CORZATT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 878578
 
            KLEIN MANUFACTURING CO.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed August 15, 1988.  Claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with Klein Manufacturing Company on March 4, 1988, when he 
 
            was involved in a motor vehicle accident while driving a 
 
            truck.  He now seeks benefits under the Iowa Workers' 
 
            Compensation Act from Klein Manufacturing and its insurance 
 
            carrier, Great American Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on August 21, 1989.  The record consists of 
 
            joint exhibits 1 through 31 (some of which do not appear to 
 
            correlate well with the contemporaneously submitted list of 
 
            exhibits, and many pages of which are duplicate or 
 
            triplicate copies), defendants' exhibits A, B, C and F, and 
 
            the testimony of the following witnesses:  claimant, Rebecca 
 
            Corzatt, Janette Mullahy and Richard Marsh.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Klein 
 
            Manufacturing Company on March 4, 1988; that the injury 
 
            caused industrial disability to the body as a whole; that 
 
            the appropriate rate of weekly compensation is $365.21; that 
 
            all requested medical benefits have been or will be paid by 
 
            defendants; that prior to hearing, defendants voluntarily 
 
            paid benefits variously denominated as healing period and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            permanent partial disability totalling $27,327.19.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused temporary disability and the extent of 
 
            claimant's entitlement thereto; the extent and commencement 
 
            date of permanent disability (including whether claimant is 
 
            entitled to permanent total benefits under the "odd-lot" 
 
            theory); taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was 47 years of age at the time of hearing and 
 
            a high school graduate.  Following high school, where he 
 
            received average grades, claimant worked as a grain and 
 
            livestock farmer for many years.  However, he eventually 
 
            suffered financial reverses and took employment as a truck 
 
            driver.  He had been so employed with defendant for about 
 
            three years at the time of injury.  Farming and truck 
 
            driving comprise his entire pre-injury work history.
 
            
 
                 The work injury occurred while claimant was driving a 
 
            semi-tractor truck and was involved in a collision.  The 
 
            truck lost a wheel and veered into a roadside bank, bouncing 
 
            claimant around in the cabin.  Claimant fell into a roadside 
 
            ditch when he got out because the steps had been torn off.  
 
            After being initially seen at the Burlington Medical Center, 
 
            claimant underwent treatment from a board-certified 
 
            orthopaedic surgeon, Koert Smith, M.D., on March 7, 1988.  
 
            Dr. Smith testified by deposition taken January 30, 1989.
 
            
 
                 Dr. Smith's chart notes reflect that claimant did not 
 
            suffer immediate severe pain, but very shortly afterwards 
 
            noted the onset of aching pain in the right shoulder, the 
 
            right ankle, and to a lesser degree the left shoulder.  
 
            Claimant credibly testified to early pain in the shoulder, 
 
            arm, leg and back, primarily the lower back.
 
            
 
                 Dr. Smith's chart notes of April 5, 1988 reflect that 
 
            claimant was at that time complaining of a neck injury.  By 
 
            April 15, Dr. Smith's notes spoke of a cervical strain and 
 
            right shoulder rotator cuff injury, reflecting that claimant 
 
            continued to complain of significant pain, if anything worse 
 
            in the neck.  Due to radicular symptoms and neck pain, EMG's 
 
            and a shoulder arthrogram were scheduled.  Electromyographer 
 
            E. Shivapour, M.D., found nerve conduction studies within 
 
            normal limits except for spasm in the cervical paraspinal 
 
            muscles.  The arthrogram was negative.
 
            
 
                 On May 31, 1988, Dr. Smith's notes for the first time 
 
            reflect that claimant believed his most significant area of 
 
            discomfort was the lower back.  The notes reflect that 
 
            claimant had some fairly chronic aching in the back since 
 
            the accident which he now believed to be a little bit worse.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant had a preexisting history of low back 
 
            problems, especially in 1978 and 1980.  Even at that early 
 
            time, medical records make note of a 20-year history of back 
 
            problems.  However, claimant was apparently more or less 
 
            asymptomatic from 1980 until the subject work injury.  
 
            Between 1980 and 1988, minimal degenerative changes at L3-4 
 
            appeared which structurally preexisted the accident, but 
 
            which Dr. Smith believed were symptomatically aggravated by 
 
            the accident.
 
            
 
                 Claimant underwent conservative treatment, including 
 
            attempts at physical therapy and work hardening.  However, 
 
            his recovery proved not to be as rapid and complete as Dr. 
 
            Smith hoped.  In fact, his condition became progressively 
 
            worse.  Dr. Smith testified that treatment consisted of 
 
            anti-inflammatory medicines, exercise programs for the neck, 
 
            shoulder, right upper extremity and lower back, physical 
 
            therapy, work hardening, and steroid injections in the 
 
            shoulder and lumbar spine.  Claimant has not been surgically 
 
            treated and Dr. Smith knows of no further treatment 
 
            modalities that would be appropriate.
 
            
 
                 Dr. Smith testified that claimant reached maximum 
 
            medical improvement on January 20, 1989.  Dr. Smith 
 
            diagnosed chronic cervical strain, chronic right rotator 
 
            cuff impingement, persistent right upper extremity pain with 
 
            limitation of motion in the wrist, and chronic back and 
 
            right leg pain from degenerative disc disease (being 
 
            aggravated by the work injury).  Dr. Smith opined that all 
 
            of these problems were causally related to the subject work 
 
            injury and, even though claimant had preexisting history of 
 
            back and shoulder problems, further opined that no actual 
 
            impairment preexisted the injury.  Using a combination of 
 
            the American Medical Association Guides to the Evaluation of 
 
            Permanent Impairment and the American Academy of Orthopaedic 
 
            Surgeons' Manual for Orthopaedic Surgeons in Evaluating 
 
            Permanent Physical Impairment, Dr. Smith concluded that 
 
            claimant had sustained a 30 percent permanent impairment to 
 
            the body as a whole causally related to the subject work 
 
            injury.  Combining wrist and shoulder limitations, Dr. Smith 
 
            found claimant to have sustained a 21 percent upper 
 
            extremity impairment under the American Medical Association 
 
            guides (a 13 percent body as a whole impairment), and under 
 
            the American Academy of Orthopaedic Surgeons' manual, a 10 
 
            percent body as a whole impairment for the cervical spine 
 
            for persistent muscle spasm, rigidity and pain without 
 
            demonstrable structural pathology, but with moderate 
 
            referred shoulder and arm pain, plus a 10 percent body as a 
 
            whole impairment for the lumbar spine for sprain or 
 
            contusion with persistent muscle spasm, rigidity and pain 
 
            with demonstrable degenerative changes.  Dr. Smith combined 
 
            these three impairment ratings to reach his final 30 percent 
 
            body as a whole impairment rating.  Although one of these 
 
            ratings was from the orthopaedic surgeon's manual, the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            combined values chart published in the AMA Guides to the 
 
            Evaluation of Permanent Impairment reflects that body as a 
 
            whole impairment ratings of 13 percent, 10 percent and 10 
 
            percent do combine to a 30 percent body as a whole 
 
            impairment under that authority.
 
            
 
                 Claimant was also seen for evaluation by William A. 
 
            Roberts, M.D.  Dr. Roberts wrote on October 31, 1988 of an 
 
            impression of chronic post-traumatic right upper extremity, 
 
            low back and right lower extremity pain and felt claimant's 
 
            clinical exam was most consistent with a shoulder 
 
            impingement syndrome.  Dr. Roberts believed claimant was 
 
            developing "some component of a chronic pain pattern," 
 
            terminology unclear to this reader and also to Dr. Smith, 
 
            and recommended use of a TENS unit and anti-inflammatory 
 
            medication along with magnetic resonance imaging studies of 
 
            the lumbar spine.  X-rays of the cervical spine and right 
 
            shoulder appear to be within normal limits.
 
            
 
                 Claimant was also seen by John T. Baldwin, D.O.  Dr. 
 
            Baldwin wrote on February 6, 1989 of his assessment:  
 
            chronic right shoulder, cervical, brachial neuritis, 
 
            degenerative joint disease of the lumbar spine and right 
 
            ankle and post-traumatic injury.  Dr. Baldwin specifically 
 
            concurred with Dr. Smith's evaluation.  He felt pessimistic 
 
            about claimant's capabilities of returning to work and 
 
            carrying on a lifestyle consistent with his pre-injury 
 
            status.
 
            
 
                 Although Dr. Smith early on believed that claimant 
 
            might recover and return to work within three months of the 
 
            injury, this prognosis proved incorrect.  Dr. Smith now 
 
            concludes that claimant cannot return to driving long 
 
            distances and loading and unloading machinery as he did 
 
            before the work injury.  However, claimant did attempt to 
 
            return to employment on a part-time basis at another job in 
 
            early 1989.  Dr. Smith returned him to work April 18, 1989 
 
            with restrictions against lifting, pulling or pushing in 
 
            excess of 20-30 pounds, bending and reaching.  Claimant 
 
            worked four hours per day, then increased to six hours per 
 
            day in June.  However, the back condition flared up and 
 
            required hospitalization on July 12, 1989, claimant being 
 
            subsequently discharged on July 18.  On July 25, 1989, Dr. 
 
            Smith wrote:
 
            
 
                 I suspect that we will get him over his most 
 
                 recent acute flare, back to where he has chronic 
 
                 and tolerable discomfort in his neck, right arm, 
 
                 low back and right leg.  I think trial at work 
 
                 basicallyis [sic] failing.  I think that if he is 
 
                 to be able to get back to a 40-hour week work 
 
                 situation that he'll have to be engaged in 
 
                 significantly lighter work than he is doing at 
 
                 this time, basically involving minimal to no 
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 lifting, periodic changes in positions and minimal 
 
                 or no bending, lifting or overhead activities.
 
            
 
                 With respect to permanent restrictions, Dr. Smith 
 
            testified:
 
            
 
                 Q.  (By Mr. Swanson)  What kind of restrictions 
 
                 would you place on Mr. Corzatt at this point?
 
            
 
                 A.  His restrictions at this point, he has very 
 
                 limited ability to stand for any length of time.  
 
                 And with those timeframes I mean like 30 to 60 
 
                 minutes.  So any job that will require him to sit 
 
                 in one position he would not be able to tolerate.  
 
                 Any job that would require him to stand in one 
 
                 position he would not be able to tolerate.
 
            
 
                 He's been trying to increase his activity.  He has 
 
                 tried to walk.  The most he can get up is about a 
 
                 mile at a time.  So a job that would require him 
 
                 for prolonged walking would be eliminated.  He's 
 
                 not able to do virtually any overhead types of 
 
                 activity or any activity where he has to reach out 
 
                 in front of him with his right arm, so any type of 
 
                 vigorous or repetitive use of his upper 
 
                 extremities would be limited.
 
            
 
                 He is unable to do any significant lifting or 
 
                 bending without aggravating his back and right leg 
 
                 pain as well as his neck and shoulder pain, so any 
 
                 job that's going to require any repetitive or 
 
                 heavy lifting, twisting, bending types of 
 
                 activity, he would not be able to tolerate.
 
            
 
                 Putting all those restrictions together, knowing 
 
                 that he's, I think, now 46 or 47, to my knowledge 
 
                 his education is high school graduate at best, I 
 
                 find it very difficult with my limited knowledge 
 
                 of the job market in this area to imaging a job 
 
                 that he could do on a regular, consistent basis.  
 
                 Again, that would allow him to earn a wage 
 
                 anywhere near what he was making at the time of 
 
                 his injury.
 
            
 
            (Dr. Smith deposition, page 34, line 20 through page 36, 
 
            line 1)
 
            
 
                 Dr. Smith's most recent return to work release, dated 
 
            July 21, 1989, was to be for two months' duration and 
 
            restricted pulling or pushing to 10-20 pounds.
 
            
 
                 At the time of hearing, claimant was working an average 
 
            of 20 hours per week operating a power sweeper and moving 
 
            light-weight boxes.  He works maximums of 6 hours per day 
 
            and 28 hours per week, and complains of continued problems 
 
            with exacerbated pain when he works.  Although he was 
 
            advised about a year before hearing by a former personnel 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            manager that defendant could not create a full-time position 
 
            for him with his restrictions, he now agrees that defendant 
 
            would give him full-time work if his condition improves 
 
            sufficiently.  Klein Manufacturing has very commendably 
 
            accommodated claimant's restrictions, has no current 
 
            complaints about his work and has no plans to terminate the 
 
            employment relationship.  Defendant now has sufficient 
 
            genuine work available, but personnel manager Janette 
 
            Mullahy conceded that defendant would not "design" a 
 
            full-time position around claimant's medical restrictions.  
 
            Shipping department foreman Richard Marsh agrees that there 
 
            is now enough work available for claimant to work eight 
 
            hours per day if he were able, and takes it upon himself to 
 
            check that claimant does not exceed his restrictions and has 
 
            asked other employees to help make sure that claimant lifts 
 
            no more than 30 pounds.  Marsh specifically tells claimant 
 
            to take rest periods.  He described claimant's current work 
 
            as operating a sweeper, cart, forklift, and picking up light 
 
            boxes and cartons for loading.  Claimant currently 
 
            complaints of severe pain if standing still, walking any 
 
            great distance on concrete, or sitting at length (5 minutes 
 
            until the onset of pain, 10-20 minutes to intolerable pain).  
 
            When testifying, claimant found it necessary to stand up and 
 
            shift position after only approximately 10 minutes on the 
 
            witness stand.  He complains of inability to perform heavy 
 
            lifting, farm work (baling hay, cleaning and feeding hogs, 
 
            cutting weeds, planting and other tractor work, changing 
 
            tires), drive a truck (claimant has not done so since the 
 
            work injury), do mechanical work on vehicles, move 
 
            furniture, cut wood, paint, or even do such light work as 
 
            trimming bushes and trees.  He complains of trouble sleeping 
 
            and his wife (from whom he is now separated), Rebecca 
 
            Corzatt, noted that he has undergone certain personality 
 
            changes in that his motivation is less, he is easily 
 
            frustrated and is somewhat grumpy.
 
            
 
                                conclusions of law
 
            
 
                 The work injury is stipulated.  Because this decision 
 
            finds that claimant has not established entitlement to 
 
            permanent total disability, the extent of his healing period 
 
            must be determined.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Defendants dispute whether the work injury caused a 
 
            healing period, although stipulating that claimant sustained 
 
            permanent disability.  The evidence overwhelmingly 
 
            establishes that claimant sustained a period of temporary 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            disability causally related to this work injury; there is 
 
            not a shred of contrary evidence in the record.  The first 
 
            of the events set forth in section 85.34(1) occurred on 
 
            January 20, 1989, when Dr. Smith indicated that significant 
 
            improvement from the injury was not anticipated.  Claimant 
 
            is entitled to healing period benefits from the date of 
 
            injury until January 20, 1989, a total of 46 weeks, 1 day.
 
            
 
                 Claimant is of the view that he is an odd-lot employee 
 
            under the theory adopted by the Iowa Supreme Court in Guyton 
 
            v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  A worker 
 
            is an odd-lot employee when a work injury makes him 
 
            incapable of work in any well-known branch of employment; 
 
            when the only services he can perform are so limited in 
 
            quality, dependability or quantity that a reasonably stable 
 
            market for those services does not exist.  When a worker 
 
            makes a prima facie case of establishing total permanent 
 
            disability by demonstrating that he is not employable in the 
 
            competitive labor market, the burden to produce evidence of 
 
            the existence of suitable employment shifts to the employer.  
 
            If the employer fails to produce such evidence and it is 
 
            found that claimant is in the odd-lot category, claimant is 
 
            entitled to a finding that he is totally and permanently 
 
            disabled.
 
            
 
                 The evidence in this case does not support a finding 
 
            that claimant has made that prima facie case as of the date 
 
            of hearing.  After all, he was regularly employed in a 
 
            position that was not a "make work" or sham, even though the 
 
            employment is currently part-time.  It may prove that 
 
            claimant will be unable to continue working even at that 
 
            level or he may continue his improvement to such an extent 
 
            that he can move to full-time work.  It would be speculative 
 
            to consider either possibility at this time, and either such 
 
            event may well constitute a change in condition to be 
 
            addressed in a review-reopening proceeding.
 
            
 
                 The parties have stipulated that the work injury caused 
 
            permanent disability to the body as a whole.  Although 
 
            claimant's lower back problems were not significant until 
 
            well after the work injury, the sole medical opinion is that 
 
            they were in fact caused by the accident.  Claimant was a 
 
            credible witness and testified that he suffered lower back 
 
            pain shortly after the injury, although it became worse at a 
 
            later time (as did most of his symptoms, particularly the 
 
            neck).  Therefore, it is necessary to determine claimant's 
 
            degree of permanent industrial disability.
 
            
 
                 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, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            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).
 
            
 
                 Defendants are of the view that claimant has sustained 
 
            little or no industrial disability because he is now working 
 
            a part-time job and may continue to improve.  This argument 
 
            is hugely unpersuasive.  Claimant has a high school diploma, 
 
            but his only work history is in farming and truck driving.  
 
            He is now barred from further employment in either field 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            because of the work injury.  He is currently limited to 
 
            lifting no more than 10-20 pounds, restricted from lifting 
 
            frequently, and is restricted from sitting or standing for 
 
            any length of time.  He is restricted from twisting or 
 
            bending, from doing any type of overhead activity or any 
 
            activity where he must reach in front with the right arm, 
 
            and any type of vigorous or repetitive use of the upper 
 
            extremities must be limited.  Claimant is limited to a 
 
            position where he is able to regulate standing, sitting or 
 
            walking when he feels it is necessary and where he is able 
 
            to regulate any lifting or pushing as he feels able.  To 
 
            work full time, Dr. Smith thinks claimant must perform 
 
            significantly lighter work than is now the case, with 
 
            minimal to no lifting, bending or overhead activities and 
 
            periodic changes in condition.  It is obvious that claimant 
 
            on the current state of the record is limited to employment 
 
            only to work with very accommodating potential employers.  
 
            He is very fortunate that defendant is so accommodating, and 
 
            it should be pointed out that claimant's industrial 
 
            disability would be very much greater than this award if he 
 
            were not so employed.  Claimant is obviously much less 
 
            attractive to potential employers because of his current 
 
            restrictions and his history of shoulder, neck and back 
 
            injury.
 
            
 
                 Taking into account the record in general and these 
 
            considerations in specific, it is held that claimant has 
 
            sustained industrial disability equivalent to 60 percent of 
 
            the body as a whole, or 300 weeks.
 
            
 
                 Defendants shall be entitled to credit for all benefit 
 
            payments voluntarily made, regardless of whether they be 
 
            denominated "healing period" or "permanent partial 
 
            disability."
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant forty-six point one 
 
            four three (46.143) weeks of healing period benefits at the 
 
            stipulated rate of three hundred sixty-five and 21/100 
 
            dollars ($365.21) per week commencing March 4, 1988 and 
 
            totalling sixteen thousand eight hundred fifty-one and 
 
            89/100 dollars ($16,851.89).
 
            
 
                 Defendants shall pay unto claimant three hundred (300) 
 
            weeks of permanent partial disability at the stipulated rate 
 
            of three hundred sixty-five and 21/100 dollars ($365.21) per 
 
            week commencing January 21, 1989 and totalling one hundred 
 
            nine thousand five hundred sixty-three and 00/100 dollars 
 
            ($109,563.00).
 
            
 
                 Defendants shall have credit for all healing period 
 
            and/or permanent partial disability benefits voluntarily 
 
            paid to claimant to date.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 All accrued weekly benefits, if any, shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Jon K. Swanson
 
            Attorney at Law
 
            900 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed August 24, 1990
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM CORZATT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 878578
 
            KLEIN MANUFACTURING CO.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Extent of disability determined.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LU ANN OLSON,     
 
                         
 
                 Claimant,    
 
                         
 
            vs.          
 
                                                     File No. 878580
 
            FIRESTONE TIRE AND RUBBER CO.,   
 
                                                     A P P E A L
 
                 Employer,    
 
                                                   D E C I S I O N
 
            and          
 
                         
 
            CIGNA INSURANCE COMPANIES,       
 
                         
 
                 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.
 
 
 
                                  ISSUES
 
 
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            I.  The deputy industrial commissioner failed in his 
 
            proposed decision to properly analyze the evidence and to 
 
            give a legitimate reason for discrediting the claimant's 
 
            testimony and the causal connection testimony bearing on the 
 
            issue of permanent disability.
 
            II.  Claimant has proven that she sustained an industrial 
 
            disability to the body as a whole and should be compensated 
 
            accordingly.
 
                              FINDINGS OF FACT
 
 
 
            Claimant is a 37-year-old high school graduate who took a 
 
            key punch course and a criminal justice class at DMACC as 
 
            her only formal post-high school education.
 
            Claimant began working for defendant employer on May 24, 
 
            1974.  Claimant testified at the hearing and by way of her 
 
            deposition taken July 23, 1990.  Claimant described her 
 
            various positions while employed with defendant employer.
 
            Claimant related being involved in several automobile 
 
            accidents, the last being in June 1984.  She indicated no 
 
            real residue injuries from any of these accidents.
 
            Claimant described her job as it existed on February 20, 
 
            1985.  On this date, claimant was stripping off a roll of 
 
            material from her fork lift when her right shoulder snapped.
 
            Claimant related her medical treatment as she understood it.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant was off work August 28, 1985 through May 18, 1986, 
 
            as stipulated by the parties.  Claimant contends that when 
 
            she returned to work the job in which she was placed was a 
 
            heavier duty job than the light duty job she was to return 
 
            to.  Claimant related her apparent difficulties in her job 
 
            due to her injury and her employer's lack of helping with 
 
            certain work place conveniences to accommodate her injury.
 
            Claimant has had no treatment for her right shoulder since 
 
            May 19, 1990.  Her current complaints appear to be pain in 
 
            her right arm and shoulder.  Her current position with 
 
            defendant employer involves scheduling plant inventory.  She 
 
            works over 40 hours per week only if necessary.  She is 
 
            making $11.91 per hour and has a high seniority (17 years in 
 
            May).  She has been at this particular position five years.
 
            Claimant contends she has limited use of her right arm and 
 
            cannot bid on certain jobs because she would not be able to 
 
            do them.
 
            Claimant acknowledged she has been an abused spouse.  She 
 
            related her injury from this abuse and contends nothing 
 
            delayed her recovery or increased her injuries in relation 
 
            to her February 20, 1985 work injury.  Claimant said she 
 
            received a black eye and had neck spasms from the abuse in 
 
            March 1988 and neck and right shoulder injuries from abuse 
 
            in August 1987.  Claimant does not know what Dr. Neff is 
 
            referring to when his records refer to a slip and fall.  
 
            Claimant acknowledged she was offered a salaried position 
 
            but turned it down due to the fact it wasn't a union 
 
            position.
 
            Claimant sells Avon products for additional outside income.  
 
            Claimant denied she was suffering right shoulder problems 
 
            since 1977 but only since the February 20, 1985 injury.  
 
            Claimant later admitted that she claimed in her medical 
 
            history given the doctor that her right shoulder problems 
 
            began on February 20, 1985, but claimant, in fact, did have 
 
            pre-February 20, 1985 problems but not continuously.
 
            Claimant seemed to discount her medical history surrounding 
 
            these accidents and remembers very little.  She also seems 
 
            to downplay any injuries she received from being physically 
 
            abused by her boyfriend and husband.  The undersigned 
 
            believes claimant intentionally suppressed her recollection 
 
            of her medical problems.  The undersigned believes that 
 
            claimant's recollection of past events could have been 
 
            better than what she displayed at the hearing.
 
            Claimant contends she would be making $13.18 today if she 
 
            was still working at her old job as of February 20, 1985, 
 
            rather than her current hourly income of $11.91.
 
            Claimant believed a James Allpress, who testified by way of 
 
            deposition as to the $13.81 figure, would be in a position 
 
            to know what her rate would be today at her old job.  Donald 
 
            Cramer, manager of the products control department at 
 
            defendant employer's, indicated that the claimant's hourly 
 
            wage at her old job would be the same as it is today, 
 
            namely, $11.91.  Mr. Cramer has been with defendant employer 
 
            for 24 1/2 years.  He did believe that Mr. Allpress should 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            have known what the figure is but disagreed with the $13.18 
 
            hourly wage that Mr. Allpress had testified to in his 
 
            deposition.
 
            Scott B. Neff, M.D., an orthopedic surgeon, testified by way 
 
            of his deposition on January 7, 1991, that his first contact 
 
            with claimant was on November 12, 1987.  He did not find any 
 
            evidence of neurologic abnormality or reflex asymmetry.  
 
            Claimant had tenderness to palpation of the medial border of 
 
            the scapula or shoulder blade.  Later, in December 1987, he 
 
            saw the EMG study that he had recommended claimant obtain.  
 
            It showed a right-sided C-7 irritation process, but no 
 
            evidence of actual radiopathy or nerve pressure.  He felt 
 
            claimant had some sore muscles around her shoulder blade and 
 
            upper back.  Dr. Neff did not causally connect claimant's 
 
            myofascial pain syndrome or cervical thoracic myofascial 
 
            pain to her February 20, 1985 injury.  He did not disagree 
 
            with the 13 percent impairment rating to claimant's right 
 
            arm assessed by Kent M. Patrick, M.D., but opined that it 
 
            would not relate to claimant's body as a whole as converted 
 
            by Dr. Patrick.  He recommended claimant not work at above 
 
            shoulder height on a repetitive nature.
 
            Dr. Neff basically concludes that with all claimant's past 
 
            medical problems and accident history, he could not causally 
 
            connect claimant's problems with the February 20, 1985 
 
            injury.  He was not given the history of claimant's seven 
 
            years of prior neck and back problems when he first examined 
 
            her.  Dr. Neff felt that claimant's problems could have been 
 
            caused by many various things and not only a February 20, 
 
            1985 injury.  He also
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            concluded that any injury claimant has is to her right upper 
 
            extremity and not to claimant's body as a whole.  Dr. Neff 
 
            conceded that an injury of February 20, 1985 could aggravate 
 
            a preexisting condition.  Dr. Neff acknowledged there was 
 
            nothing in claimant's records that indicated claimant had an 
 
            impingement syndrome diagnosis prior to February 20, 1985.
 
            The parties are fighting over the causal connection as to 
 
            any permanent disability claimant may have.  In reviewing 
 
            the medical history, it is apparent claimant has had 
 
            considerable medical problems for years.  The parties 
 
            stipulated at a minimum as to claimant being temporarily 
 
            disabled 37.571 weeks but claimant has the burden of proof 
 
            as to any permanent impairment or disability causally 
 
            connected to a February 20, 1985 injury.  
 
            Claimant's medical records and reports are tainted by the 
 
            nature of the history given to the doctors.  ***** Claimant 
 
            appears to have considered certain facts or incidents 
 
            unimportant to the doctors when certain history was given to 
 
            them. *****
 
            
 
                                CONCLUSIONS OF LAW
 
 
 
            Claimant has failed to prove by a preponderance of the 
 
            evidence that claimant suffered any permanent partial 
 
            impairment or disability as a result of a work-related 
 
            injury on February 20, 1985.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of February 20, 1985 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).
 
            Defendants are not responsible for claimant's receipt of 
 
            physical abuse by her boyfriend and husband nor for 
 
            permanent injuries that may have been received by other 
 
            nonoccupational injuries or accidents.  The record shows 
 
            other events that could contribute greatly to claimant's 
 
            complaints that are not the responsibility of defendants.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Defendants' Exhibit A-2, page 12, reflects an apparent 
 
            severe beating claimant took at the hands of her husband.  
 
            The blows were to her upper body.  She was knocked to the 
 
            floor.  Defendants' Exhibit A-2, page 18, shows claimant was 
 
            struck in the head, neck and right shoulder in a fight with 
 
            her boyfriend.  The greater weight of the evidence indicates 
 
            that claimant has failed to carry her burden of proof to 
 
            show that her current condition was caused by her work 
 
            injury.
 
            Claimant incurred a temporary total disability as a result 
 
            of a work-related injury on February 20, 1985, for a period 
 
            beginning August 28, 1985 through May 18, 1986, amounting to 
 
            37.714 weeks.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                                      ORDER
 
 
 
            THEREFORE, it is ordered:
 
            That claimant takes nothing further in these proceedings.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency, pursuant to rule 
 
            343 IAC 3.1.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines, IA 50311
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                               1108.50
 
                                               Filed November 30, 1992
 
                                               Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LU ANN OLSON,     
 
                         
 
                 Claimant,    
 
                         
 
            vs.          
 
                                                  File No. 878580
 
            FIRESTONE TIRE AND RUBBER CO.,   
 
                                                   A P P E A L
 
                 Employer,    
 
                                                D E C I S I O N
 
            and          
 
                         
 
            CIGNA INSURANCE COMPANIES,       
 
                         
 
                 Insurance Carrier,     
 
                 Defendants.       
 
            ____________________________________________________________
 
            
 
            1108.50
 
            Affirmed deputy's decision stating claimant had failed to 
 
            show causal connection, where the record showed her injury 
 
            was as likely or more likely caused by other possible 
 
            sources, such as physical abuse by her boyfriend/husband, 
 
            than by her work injury. 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LU ANN OLSON,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 878580
 
            FIRESTONE TIRE AND RUBBER CO.,:
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA INSURANCE COMPANIES,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            This case came on for hearing on January 30, 1991, in Des 
 
            Moines, Iowa.
 
            This is a proceeding in arbitration wherein claimant seeks 
 
            compensation for permanent partial disability benefits as a 
 
            result of an alleged injury which occurred on Februrary 20, 
 
            1985.  The record in the proceedings consist of the 
 
            testimony of claimant and Donald Cramer; joint exhibits 1 
 
            through 8; and defendants' exhibits A-1 and -2, A-9 through 
 
            A-13.
 
            issues
 
            The issues for resolution are:
 
            1.  Whether there is any causal connection between 
 
            claimant's injury of February 20, 1985 and her alleged 
 
            disability; and,
 
            2.  The extent of claimant's permanent disability and if 
 
            there is permanent disability whether it is to claimant's 
 
            body as a whole or to her right upper extremity, a scheduled 
 
            member.
 
            findings of fact
 
            Claimant is a 37-year-old high school graduate who took a 
 
            key punch course and a criminal justice class at DMACC as 
 
            her only formal post-high school education.
 
            Claimant began working for defendant employer on May 24, 
 
            1974.  Claimant testified at the hearing and by way of her 
 
            deposition taken July 23, 1990.  Claimant described her 
 
            various positions while employed with defendant employer.
 
            Claimant related being involved in several automobile 
 
            accidents, the last being in June 1984.  She indicated no 
 
            real residue injuries from any of these accidents.
 
            Claimant described her job as it existed on February 20, 
 
            1985.  On this date, claimant was stripping off a roll of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            material from her fork lift when her right shoulder snapped.
 
            Claimant related her medical treatment as she understood it.
 
            Claimant was off work August 28, 1985 through May 18, 1986, 
 
            as stipulated by the parties.  Claimant contends that when 
 
            she returned to work the job in which she was placed was a 
 
            heavier duty job than the light duty job she was to return 
 
            to.  Claimant related her apparent difficulties in her job 
 
            due to her injury and her employer's lack of helping with 
 
            certain work place conveniences to accommodate her injury.
 
            Claimant has had no treatment for her right shoulder since 
 
            May 19, 1990.  Her current complaints appear to be pain in 
 
            her right arm and shoulder.  Her current position with 
 
            defendant employer involves scheduling plant inventory.  She 
 
            works over 40 hours per week only if necessary.  She is 
 
            making $11.91 per hour and has a high seniority (17 years in 
 
            May).  She has been at this particular position five years.
 
            Claimant contends she has limited use of her right arm and 
 
            cannot bid on certain jobs because she would not be able to 
 
            do them.
 
            Claimant acknowledged she has been an abused spouse.  She 
 
            related her injury from this abuse and contends nothing 
 
            delayed her recovery or increased her injuries in relation 
 
            to her February 20, 1985 work injury.  Claimant said she 
 
            received a black eye and had neck spasms from the abuse in 
 
            March 1988 and neck and right shoulder injuries from abuse 
 
            in August 1987.  Claimant does not know what Dr. Neff is 
 
            referring to when his records refer to a slip and fall.  
 
            Claimant acknowledged she was offered a salaried position 
 
            but turned it down due to the fact it wasn't a union 
 
            position.
 
            Claimant sells Avon products for additional outside income.  
 
            Claimant denied she was suffering right shoulder problems 
 
            since 1977 but only since the February 20, 1985 injury.  
 
            Claimant later admitted that she claimed in her medical 
 
            history given the doctor that her right shoulder problems 
 
            began on February 20, 1985, but claimant, in fact, did have 
 
            pre-February 20, 1985 problems but not continuously.
 
            Claimant seemed to discount her medical history surrounding 
 
            these accidents and remembers very little.  She also seems 
 
            to downplay any injuries she received from being physically 
 
            abused by her boyfriend and husband.  The undersigned 
 
            believes claimant intentionally suppressed her recollection 
 
            of her medical problems.  The undersigned believes that 
 
            claimant's recollection of past events could have been 
 
            better than what she desplayed at the hearing.
 
            Claimant contends she would be making $13.18 today if she 
 
            was still working at her old job as of February 20, 1985, 
 
            rather than her current hourly income of $11.91.
 
            Claimant believed a James Allpress, who testified by way of 
 
            deposition as to th $13.81 figure, would be im a position to 
 
            know what her rate would be today at her old job.  Donald 
 
            Cramer, manager of the products control department at 
 
            defendant employer's, indicated that the claimant's hourly 
 
            wage at her old job would be the same as it is today, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            namely, $11.91.  Mr. Cramer has been with defendant employer 
 
            for 24 1/2 years.  He did believe that Mr. Allpress should 
 
            have known what the figure is but disagreed with the $13.18 
 
            hourly wage that Mr. Allpress had testified to in his 
 
            deposition.
 
            Scott B. Neff, M.D., an orthopedic surgeon, testified by way 
 
            of his deposition on January 7, 1991, that his first contact 
 
            with claimant was on November 12, 1987.  He did not find any 
 
            evidence of neurologic abnormality or reflex asymetry.  
 
            Claimant had tenderness to palpation of the medial border of 
 
            the scapula or shoulder blade.  Later, in December 1987, he 
 
            saw the EMG study that he had recommended claimant obtain.  
 
            It showed a right-sided C-7 irritation process, but no 
 
            evidence of actual radiopathy or nerve pressure.  He felt 
 
            claimant had some sore muscles around her shoulder blade and 
 
            upper back.  Dr. Neff did not causally connect claimant's 
 
            myofascial pain syndrome or cervical thoracic myofascial 
 
            pain to her February 20, 1985 injury.  He did not disagree 
 
            with the 13 percent impairment rating to claimant's right 
 
            arm assessed by Kent M. Patrick, M.D., but opined that it 
 
            would not relate to claimant's body as a whole as converted 
 
            by Dr. Patrick.  He recommended claimant not work at above 
 
            shoulder height on a repetitive nature.
 
            Dr. Neff basically concludes that with all claimant's past 
 
            medical problems and accident history, he could not causally 
 
            connect claimant's problems with the February 20, 1985 
 
            injury.  He was not given the history of claimant's seven 
 
            years of prior neck and back problems when he first examined 
 
            her.  Dr. Neff felt that claimant's problems could have been 
 
            caused by many various things and not only a February 20, 
 
            1985 injury.  He also concluded that any injury claimant has 
 
            is to her right upper extremity and not to claimant's body 
 
            as a whole.  Dr. Neff conceded that an injury of February 
 
            20, 1985 could aggravate a preexisting condition.  Dr. Neff 
 
            acknowledged there was nothing in claimant's records that 
 
            indicated claimant had an impingement syndrome diagnosis 
 
            prior to February 20, 1985.
 
            The parties are fighting over the causal connection as to 
 
            any permanent disability claimant may have.  In reviewing 
 
            the medical history, it is apparent claimant has had 
 
            considerable medical problems for years.  The parties 
 
            stipulated at a minimum as to claimant being temporarily 
 
            disabled 37.571 weeks but claimant has the burden of proof 
 
            as to any permanent impairment or disabiity causally 
 
            connected to a February 20, 1985 injury.  Defendants' 
 
            Exhibit A-2, page 12, is one of several examples that 
 
            concerns the undersigned as to the cause of claimant's 
 
            permanent injuries.  Claimant basically downplayed 
 
            everything but her February 20, 1985 injury.  Her memory was 
 
            something to be desired.
 
            The undersigned's review of the evidence leaves substantial 
 
            doubt as to the causal connection of claimant's current 
 
            problems to any February 20, 1985 injury.  There is greater 
 
            reason to conclude that claimant's current problems stem 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            from accumulation of slip-and-falls, fighting with and abuse 
 
            by her boyfriend and husband and other incidents.
 
            Claimant's medical records and reports are tainted by the 
 
            nature of the history given to the doctors.  They cannot 
 
            accurately opine when the history is inadequate.  Claimant 
 
            appears to have considered certain facts or incidents 
 
            unimportant to the doctors when certain history was given to 
 
            them and from whom ultimately a determination of a cause of 
 
            her problems was to be determined.  Claimant had this same 
 
            problem when she testified as to things she didn't think 
 
            were important and wanted to forget.
 
            The area of testimony that emotionally upset claimant and 
 
            which facts she wanted to forget would appear to the 
 
            undersigned to have had the greatest or as great effect on 
 
            claimant's physical condition as the other facts surrounding 
 
            her February 20, 1985 injury.  The undersigned can 
 
            understand claimant becoming emotional.  Defendants are not 
 
            responsible for claimant's receipt of physical abuse by her 
 
            boyfriend and husband nor for permanent injuries that may 
 
            have been received by other nonoccupational injuries or 
 
            accidents.  The record shows other events that could 
 
            contribute greatly to claimant's complaints that are not the 
 
            responsibility of defendants.  Defendants' Exhibit A-2, page 
 
            12, reflects an apparent severe beating claimant took at the 
 
            hands of her husband.  The blows were to her upper body.  
 
            She was knocked to the floor.  Defendants' Exhibit A-2, page 
 
            18, shows claimant was struck in the head, neck and right 
 
            shoulder in a fight with her boyfriend.
 
            The undersigned sees no necessity of setting out any more 
 
            review of the evidence in this case.  If claimant cannot 
 
            show causal connection as to any permanent injury or 
 
            disability, then the other issues are moot.
 
            The undersigned finds, as stipulated by the parties, that 
 
            claimant incurred a temporary total disability as a result 
 
            of a work-related injury on February 20, 1985, for a period 
 
            beginning August 28, 1985 through May 18, 1986, amounting to 
 
            37.714 weeks.  The parties actually figured 37.571 weeks but 
 
            the period to which they stipulated was actually one day 
 
            more.
 
            The undersigned further finds that claimant's temporary 
 
            total disability for this period of time was to claimant's 
 
            right upper extremity.
 
            The undersigned further finds that claimant has failed to 
 
            prove by a preponderance of the evidence that claimant 
 
            suffered any permanent partial impairment or disability as a 
 
            result of a work-related injury on February 20, 1985.
 
            conclusions of law
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of February 20, 1985 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            It is further concluded that:
 
            Claimant incurred temporary disability to her upper right 
 
            extremity for the period beginning August 28, 1985 through 
 
            May 18, 1986, as a result of a February 20, 1985 work 
 
            injury.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant takes nothing further in these proceedings.
 
            That defendants shall pay the costs of this action, pursuant 
 
            to rule 343 IAC 4.33.
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency, pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311
 
            
 
            Mr Marvin Duckworth
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed February 27, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LU ANN OLSON,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 878580
 
            FIRESTONE TIRE AND RUBBER CO.,:
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA INSURANCE COMPANIES,    :
 
                      :
 
                 Insurance Carrier.  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant failed to prove causal connection between her 
 
            injury and her alleged permanent disability.