BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         CONNIE L. MOSS,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 881576
 
         UNITED PARCEL SERVICE,          :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         LIBERTY MUTUAL,                 :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 21, 1994 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         
 
              Defendants contend that claimant failed to file a timely 
 
         appeal from the arbitration decision of the deputy industrial 
 
         commissioner.  The deputy's decision was filed on April 21, 1994.  
 
         Therefore, absent an application for rehearing the deputy's 
 
         decision would become final on May 11, 1994.  On May 9, 1994 
 
         claimant filed a motion to expand findings and conclusions.  On 
 
         May 9, 1994 the deputy industrial commissioner held a telephone 
 
         conference regarding the claimant's motion.  Counsel for the 
 
         parties participated in this telephone conference.  The deputy 
 
         indicated the motion did not raise any matters upon which 
 
         expansion of findings and conclusions was necessary, and, in his 
 
         opinion, no further written ruling was necessary.  Counsel for 
 
         the parties agreed with the deputy industrial commissioner.  On 
 
         May 31, 1994 claimant filed a notice of appeal in this action. 
 
         
 
              The claimant's notice of appeal was timely filed.  
 
         Claimant's motion to expand findings and conclusions was filed 
 
         within 20 days after the issuance of the deputy's arbitration 
 
         decision.  Pursuant to rule 343 IAC 4.24 "...motions or requests 
 
         for reconsideration for new trial or retrial or any reexamination 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         of any decision, ruling, or order shall be treated the same as an 
 
         application for rehearing."  Therefore, for purposes of 
 
         determining whether the claimant's notice of appeal was timely 
 
         filed, the claimant's motion to expand findings and conclusions 
 
         is treated the same as an application for rehearing.
 
         
 
              The claimant's motion to expand findings and conclusions was 
 
         argued before the deputy industrial commissioner on May 9, 1994.  
 
         On May 9, 1994 the parties agreed with the deputy that it was 
 
         unnecessary to expand the findings and conclusions and it would 
 
         be unnecessary for the deputy to issue a written ruling.  
 
         Pursuant to rule 343 IAC 4.25, the 20 days in which to file a 
 
         timely appeal to the industrial commissioner from the deputy's 
 
         arbitration decision began running May 9, 1994.  May 29 being a 
 
         Sunday and May 30 being a legal holiday, the time limit in which 
 
         to file a timely appeal ended on May 31, 1994.  See Iowa Code 
 
         section 4.1(34).  As previously stated the claimant's notice of 
 
         appeal was filed on May 31, 1994 and therefore constitutes the 
 
         filing of a timely appeal.
 
         
 
              Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
              Signed and filed this ____ day of September, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. H. Edwin Detlie
 
         Attorney at Law
 
         114 N. Market St.
 
         Ottumwa, Iowa 52501
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         P.O. Box 716
 
         Ottumwa, Iowa 52501-0716
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
                                       1803.1; 2501; 2503
 
                                       Filed September 26, 1994
 
                                       Byron K. Orton
 
                                       
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         CONNIE L. MOSS,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 881576
 
         UNITED PARCEL SERVICE,          :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         LIBERTY MUTUAL,                 :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         1803.1; 2501; 2503
 
         
 
              Claimant injured her right ankle.  It was originally thought 
 
         to be a sprain but she did not recover.  Claimant awarded 25 
 
         percent permanent partial disability of the leg where changes 
 
         were shown to extend into the tibia.  AMA Guides were found to 
 
         not be a reliable indicator of the loss of use of the leg since 
 
         the claimant had lost much of her ability to stand and ambulate, 
 
         the principle functions for which a leg is used.  The impairment 
 
         based upon range of motion was held to be unrepresentative and 
 
         was not awarded.  Complaints of back pain without a showing of 
 
         any objective abnormality or disability affecting the back held 
 
         to be insufficient to transform the injury beyond the schedule.
 
         
 
              Where the employer provided reasonable care, claimant was 
 
         not allowed to recover the costs of additional care which she had 
 
         sought on her own.  Claimant was entitled to recover additional 
 
         expenses incurred with the originally authorized treating 
 
         physician where the record did not show that she had been 
 
         prohibited from returning to that original physician.
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            CONNIE L MOSS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 881576
 
            UNITED PARCEL SERVICE,        :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Connie 
 
            L. Moss based upon an injury that occurred on April 5, 1988.  
 
            The principle issue in the case is determination of the 
 
            claimant's entitlement to compensation for permanent partial 
 
            disability.  The principle underlying issue is whether it is 
 
            a scheduled injury or one which should be compensated 
 
            industrially.   Claimant also seeks to recover some medical 
 
            expenses.  
 
            
 
                 The case was heard at Des Moines, Iowa, on March 22, 
 
            1994.  The record consists of testimony from Connie L. Moss, 
 
            Daniel Wilharber and Curt Kruse.  The record contains joint 
 
            exhibits A through O.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Many of the facts in this case are relatively 
 
            undisputed.  Connie Moss injured her right ankle on April 5, 
 
            1988, while she was delivering a parcel for her employer.  
 
            At first the injury was thought to be a simple sprain.  
 
            Connie did not recover, however, and the ankle has remained 
 
            quite troublesome for her.  She has been unable to resume 
 
            her work with United Parcel Service as a package car driver.  
 
            The ankle is very painful for her.  It limits her ability to 
 
            stand and walk.  
 
            
 
                 Connie's initial authorized treating physician was 
 
            Donald Berg, M.D.  His conservative care did not resolve her 
 
            complaints.  Her care was then transferred to Stephen 
 
            Taylor, M.D.  A surgical procedure was performed but her 
 
            complaints were not resolved.  Claimant next sought care 
 
            from Richard Neiman, M.D.  Under his care an MRI scan showed 
 
            a small area of a vascular necrosis involving the posterior 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            aspect of claimant's distal tibia.  (exhibit L, page 63).  
 
            Dr. Berg has agreed that the aseptic necrosis was caused by 
 
            the April 5, 1988 injury.  (ex. L, p. 64).  
 
            
 
                 Claimant has also developed back pain.  Dr. Neiman has 
 
            reported that the April 5, 1988 injury was a substantial, 
 
            material factor in causing claimant's back and hip 
 
            discomfort.  He stated that the right ankle affects overall 
 
            body function.  (ex. L, pp. 45, 47).  Dr. Neiman has 
 
            evaluated claimant's permanent impairment.  At one time he 
 
            found her to have an 11 percent impairment of her right 
 
            ankle.  (ex. L, p. 48).  On another he rated her as having a 
 
            20 percent impairment of her lower extremity.  (ex. L, p. 
 
            53).  On another occasion he found her to have a 20 percent 
 
            impairment of the foot which was equivalent to 14 percent of 
 
            the lower extremity.  (ex. L, p. 54).  Dr. Neiman has also 
 
            indicated more recently that claimant has a 4 percent 
 
            impairment of the whole person on account of her ankle and 
 
            an additional 5 percent impairment of the whole person due 
 
            to her back discomfort.  (ex. L, p. 45).  
 
            
 
                 Claimant has been evaluated by Joshua Kimmelman, D.O., 
 
            who rated her as having a 5 percent impairment of her foot 
 
            and ankle.  (ex. D, p. 21).  
 
            
 
                 Claimant has been evaluated by Daniel J. McGuire, M.D., 
 
            who rated claimant as having a 7 percent impairment of the 
 
            lower extremity.  (ex. B, p. 29).  Dr. McGuire did not 
 
            examine claimant's back but stated that her injury does not 
 
            extend into the body as a whole.  
 
            
 
                 Dr. Taylor reported that there is no significant 
 
            relationship between claimant's ankle and her back pain 
 
            complaints.  (ex. B, p. 14).  On May 17, 1989, he reported 
 
            that she did not have any permanent impairment as a result 
 
            of the injury.  (ex. B, p. 16).  
 
            
 
                 It is found that Connie L. Moss has permanent 
 
            disability and permanent loss of her right leg as a result 
 
            of the April 5, 1988 injury.  The distal tibia is clearly a 
 
            part of the leg.  Her disability is not limited to her foot.  
 
            There is ample evidence in the record of this case to 
 
            indicate that the claimant has back pain.  The evidence does 
 
            not, however, demonstrate that she has disability resulting 
 
            from any back condition.  The record does not show any 
 
            physiological abnormality affecting claimant's back.  All of 
 
            the physiological abnormality that is found has been in her 
 
            right leg and ankle.  
 
            
 
                 Claimant demonstrates some loss of range of motion at 
 
            her right ankle joint.  The biggest problem, however, with 
 
            her leg is that she has lost part of her ability to use her 
 
            leg for activities such as standing and walking.  When one 
 
            considers the functions for which a person typically uses 
 
            their feet and legs, it is clear that simply measuring the 
 
            loss of range of motion at the ankle bears little 
 
            correlation to the loss of the ability to use the foot and 
 
            leg for standing and ambulation.  It is quite likely that 
 
            the claimant's overweight condition has been a factor in her 
 
            lack of recovery.  Nevertheless, the fact of the matter is 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that she has not recovered and she has lost a very 
 
            substantial portion of her ability to use her right foot and 
 
            leg for the things for which feet and legs are customarily 
 
            used.  It is found that Connie Moss has experienced a 25 
 
            percent loss of the use of her right leg as a result of the 
 
            April 5, 1988 injury.  
 
            
 
                 The medical care which was provided by the employer in 
 
            this case appears to have been reasonable.  There is 
 
            certainly no indication that it was not.  Claimant entered 
 
            into a course of care with Dr. Neiman but the overall 
 
            picture has changed very little.  There is nothing to 
 
            indicate that her care with Dr. Neiman improved her 
 
            condition.  Dr. Berg, however, was one of the originally 
 
            authorized treating physicians and there is nothing in the 
 
            record of this case that claimant was told that she should 
 
            refrain from seeing him again.  The charges incurred at 
 
            Ottumwa Regional Health Center and CT Imaging Service in 
 
            Ottumwa, on January 31, 1991, were incurred under the 
 
            direction of Dr. Berg.  It is therefore found that the 
 
            medical expenses claimant incurred with Mercy Hospital in 
 
            Iowa City and with Richard F. Neiman, M.D., were not 
 
            authorized by the employer, were not reasonably necessary 
 
            and did not produce any improvement in the claimant's 
 
            condition.  The care from Dr. Berg at Ottumwa Regional 
 
            Health Center and CT Imaging Service are found to be 
 
            authorized, reasonable care provided by an authorized 
 
            physician.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  Compensation for scheduled 
 
            permanent partial disability is determined under Iowa Code 
 
            section  85.34(2)(a) - (t) according to the functional loss 
 
            of use of the member without considering the impact of the 
 
            injury upon the individual's earnings or earning capacity.  
 
            Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 
 
            (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 
 
            184 N.W. 746 (1921).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 It has been found that the disability in this case is 
 
            limited to the claimant's right leg.  This is therefore a 
 
            scheduled injury compensable under section 85.34(2)(o) of 
 
            the Code.  When dealing with scheduled injuries the term 
 
            "loss" which is found in the statute means loss of use.  
 
            Moses, 194 Iowa 819, 184 N.W. 746.  Agency rule 343 IAC 
 
            2.4 has adopted the Guides to the Evaluation of Permanent 
 
            Impairment published by the American Medical Association as 
 
            a guide and recognizes payments made in the course with that 
 
            reference as a prima facie showing of compliance with the 
 
            law.  The rule goes on to state that the Guides are not to 
 
            be construed to prevent other evidence for the purpose of 
 
            establishing the degree of permanent impairment.  The law is 
 
            well settled that the use of the Guides is not the exclusive 
 
            manner of determining scheduled disabilities and that 
 
            claimant's testimony and demonstrated difficulties may be 
 
            considered in determining the actual loss of use.  Lauhoff 
 
            Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Soukup, 222 
 
            Iowa 272, 268 N.W. 598.  
 
            
 
                 In many cases the rating under the Guides provides a 
 
            reasonably accurate assessment of the loss of use of the 
 
            member involved.  This is not, however, one of those cases.  
 
            The claimant's loss of use is not a mere inability to move 
 
            her foot and ankle through the normal range of motion.  It 
 
            is a much more serious loss because claimant is unable to 
 
            stand and walk on her foot.  This is a very appreciable 
 
            change from the preinjury status of being able to make 
 
            deliveries as a package car driver.  Feet and legs are used 
 
            for standing and ambulation.  Little of the practical use of 
 
            a person's foot or leg involves sitting on an examining 
 
            table and moving it through its range of motion.  When loss 
 
            of use is considered in terms of normal activities of daily 
 
            living, it is determined that Connie Moss has a 25 percent 
 
            loss of use of her right leg.  Under the provisions of Code 
 
            section 85.34(2)(o) this entitles her to recover 55 weeks of 
 
            compensation for permanent partial disability.  The employer 
 
            has previously paid 11 weeks of permanent partial disability 
 
            compensation.  The unpaid remaining balance is therefore 44 
 
            weeks.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 In this case the employer did not fail to provide 
 
            reasonable care to the claimant.  She was therefore not free 
 
            to seek out other care on her own.  The care which she 
 
            received from Dr. Neiman appears to have been more in the 
 
            nature of evaluation for purposes of litigation then for 
 
            actual treatment though it is clear that both functions were 
 
            performed.  The care does not appear to have been successful 
 
            at resolving the claimant's complaints.  It is not shown to 
 
            have improved her condition or reduced her degree of 
 
            disability.  Since the care was unauthorized, was sought out 
 
            by the claimant on her own and did not improve her 
 
            condition, she is not entitled to recover the cost of that 
 
            care from her employer.  
 
            
 
                 Claimant returned to Dr. Berg who was one of her 
 
            authorized physicians.  It was certainly reasonable that she 
 
            do so.  Dr. Berg made a determination that claimant should 
 
            receive care at Ottumwa Regional Health Center and CT 
 
            Imaging Center.  The care provided appears to be reasonable.  
 
            Since it was obtained with an authorized physician, the 
 
            employer is responsible for the care rendered by Dr. Berg.  
 
            This included his charge of $25, the charge of Ottumwa 
 
            Regional Health Center in the amount of $62.90 and the 
 
            charge from CT Imaging Service in the amount of $820.  These 
 
            total $907.90.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that, after credit is given for 
 
            payments previously paid, defendants shall pay Connie L. 
 
            Moss forty-four (44) weeks of compensation for permanent 
 
            partial disability of her right leg at the stipulated rate 
 
            of three hundred thirty and 23/100 dollars ($330.23) per 
 
            week payable commencing July 17, 1989.
 
            
 
                 It is further ordered that defendants pay Connie L. 
 
            Moss the sum of nine hundred seven and 90/100 dollars 
 
            ($907.90) as reimbursement for medical expenses pursuant to 
 
            section 85.27.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendant file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr. H. Edwin Detlie
 
            Attorney at Law
 
            114 N Market St
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 W 2nd St
 
            PO Box 716
 
            Ottumwa, Iowa  52501-0716
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                              1803.1 2501 2503
 
                                              Filed April 21, 1994
 
                                              Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            CONNIE L MOSS, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 881576
 
            UNITED PARCEL SERVICE,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            
 
            1803.1 2501 2503
 
            Claimant injured her right ankle.  It was originally thought 
 
            to be a sprain but she did not recover.  Claimant awarded 25 
 
            percent permanent partial disability of the leg where 
 
            changes were shown to extend into the tibia.  AMA Guides 
 
            were found to not be a reliable indicator of the loss of use 
 
            of the leg since the claimant had lost much of her ability 
 
            to stand and ambulate, the principle functions for which a 
 
            leg is used.  The impairment based upon range of motion was 
 
            held to be unrepresentative and was not awarded.  Complaints 
 
            of back pain without a showing of any objective abnormality 
 
            or disability affecting the back held to be insufficient to 
 
            transform the injury beyond the schedule.
 
            Where the employer provided reasonable care, claimant was 
 
            not allowed to recover the costs of additional care which 
 
            she had sought on her own.  Claimant was entitled to recover 
 
            additional expenses incurred with the originally authorized 
 
            treating physician where the record did not show that she 
 
            had been prohibited from returning to that original 
 
            physician.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DUANE BEVINS,                 :
 
                                       :
 
              Claimant,                :
 
                                       :        File No. 834865
 
         vs.                           :                 881784
 
                                       :                 877458
 
         FARMSTEAD FOODS,              :                 888705
 
                                       :
 
              Employer,                :     A R B I T R A T I O N
 
                                       :
 
         and                           :        D E C I S I O N
 
                                       :
 
         EMPLOYERS MUTUAL COMPANY,     :
 
                                       :
 
              Insurance Carrier,,      :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in arbitration wherein Duane Bevins 
 
         seeks permanent partial disability benefits for an alleged 
 
         cumulative trauma to his right elbow as a result of a September 
 
         17, 1986 injury date (file No. 834865).  Claimant seeks permanent 
 
         partial disability payments for a cumulative trauma to his left 
 
         elbow as a result of an alleged September 17, 1987 injury (file 
 
         No. 881784).  In file No. 877458, claimant seeks permanent 
 
         partial disability benefits for a cumulative trauma to his left 
 
         shoulder as a result of an alleged injury on February 15, 1988.  
 
         In file No. 888705, claimant seeks permanent partial disability 
 
         benefits for a cumulative trauma to his right knee as a result of 
 
         an alleged injury on February 15, 1988.  Although there are 
 
         several claims against the employer, the insurance company, and 
 
         the Second Injury Fund of Iowa, the attorney for defendant 
 
         employer and insurance carrier indicated that the real issue 
 
         between claimant and Farmstead Foods and Employers Mutual 
 
         Company, involves the February 15, 1988 injury (file No. 877458), 
 
         and the issue of whether the injury was restricted to the left 
 
         upper extremity (left arm) or involves the body as a whole.  
 
         Claimant amended his petition in or around April 10, 1990 to add 
 
         the Second Injury Fund because of the dispute over whether the 
 
         alleged left shoulder injury in file No. 877458, injury date 
 
         February 15, 1988, is a scheduled or unscheduled injury.  
 
         Claimant still believes this particular injury is an injury to 
 
         his body as a whole and, therefore, would not involve the fund.  
 
         This case was heard before the undersigned in Cedar Rapids, Iowa, 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         on April 11, 1990.  The record in the proceeding consists of the 
 
         testimony of claimant, Duane Bevins, and Bob Blong, and joint 
 
         exhibits 1 through 9 and 11.
 
         
 
              Prior to taking evidence and while sorting out the various 
 
         stipulations and issues in finalizing the prehearing report, 
 
         there was a very lengthy discussion concerning the status of this 
 
         case and its readiness for hearing.  The comment was made that 
 
         claimant was scheduled for another surgery within approximately 
 
         three weeks of the hearing which could have a substantial effect 
 
         on the extent of impairment and ultimate disability.  The 
 
         attorneys for defendants indicated they did not think this case 
 
         was ready for hearing and thought it was one which should be 
 
         continued.  Claimant adamantly opposed any thought of continuance 
 
         and argued that claimant wanted his day in court regardless of 
 
         the circumstances.  The matter then proceeded to hearing.
 
         
 
                                      issues
 
         
 
              The issues for resolution are:
 
         
 
              1.  As to all four injuries, the nature and extent of 
 
         claimant's disability.
 
         
 
              2.  As to all four injuries, the Second Injury Fund, only, 
 
         raises the issue whether any of these injuries arose out of and 
 
         in the course of claimant's employment.
 
         
 
              3.  As to file No. 877458, whether claimant's left shoulder 
 
         injury is a scheduled injury as contended by defendant employer 
 
         and defendant insurance carrier, or is it an injury to claimant's 
 
         body as a whole as contended by the Second Injury Fund and 
 
         claimant.
 
         
 
              4.  Whether the claimant is an odd-lot employee.
 
         
 
                                 findings of fact
 
         
 
              Claimant is a 47-year-old 1960 high school graduate who has 
 
         no other formal education.  Claimant began working for defendant 
 
         employer on November 27, 1961 and except for various layoffs, 
 
         worked full-time until March 11, 1990, when defendant employer 
 
         shut down due to bankruptcy.
 
         
 
              Claimant described his jobs during his employment with 
 
         defendant employer.  These jobs basically involved deboning, 
 
         defattening and skinning hams with a Whizzard knife and driving a 
 
         tractor, which is similar to a fork lift, for several years.  
 
         Claimant indicated that during the fourteen years he drove a 
 
         tractor, two of which were up to 1988, he would use his right 
 
         hand to put the tractor in gear, his left hand to steer, and his 
 
         foot to press the pedal.  Claimant said that when he was deboning 
 
         hams, he had to keep pace with the other workers on the conveyor 
 
         belt.  This involved repetitive use of his hands and arms, 
 
         picking up hams weighing up to 23 pounds, using a Whizzard knife, 
 
         lifting up buckets of meat and dumping it every hour.  Claimant 
 
         recalled certain injuries he had that are applicable to this 
 
         decision and which occurred before the four injuries specifically 
 
         involved in this decision.  Claimant had a left knee injury and 
 
         surgery on December 17, 1982 (Joint Exhibit 7, page 144) which he 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         said is okay now except he still has pain and stiffness in it. 
 
         Albert R. Coates, M.D., said claimant has a 10 percent permanent 
 
         partial impairment to this knee (Jt. Ex. 9, p. 59) but 5 percent 
 
         of this is work related (Jt. 1, p. 63).  For purposes of this 
 
         case, it is immaterial whether any of the 10 percent is work 
 
         related.
 
         
 
              Claimant's right shoulder was operated on March 1, 1985 (Jt. 
 
         Ex. 1, p. 96).  Claimant indicated it gets stiff once in a while 
 
         and he has reduced strength but no pain.  Leland G. Hawkins, 
 
         M.D., did an excision of the distal clavicle release of a 
 
         coracoacromil ligament and partial acromionectomy.  This deputy 
 
         takes official notice of the agency records which indicate in 
 
         file No. 799533 that claimant received a 6 percent full 
 
         commutation regarding this injury.  Dr. Hawkins apparently opined 
 
         a 2 percent permanent disability rating (Jt. Ex. 1, p. 35).
 
         
 
              On February 17, 1986, claimant fell at home and fractured 
 
         his elbow.  It appears there was no impairment or residual injury 
 
         resulting from this fall.
 
         
 
              The first injury for which claimant seeks compensation in 
 
         this current case was when claimant injured his right elbow in 
 
         September 1986, which claimant relates is due to driving a 
 
         tractor and lifting.  Claimant was off work two or three days and 
 
         later incurred a tenotomy and epicondylectomy on his right elbow.  
 
         On September 17, 1986, claimant was off three to four months (Jt. 
 
         Ex. 1, p. 108).  Walter J. Hales, M.D., opined a 20 percent 
 
         impairment resulting from this injury (Jt. Ex. 1, pp. 52, 63).
 
         
 
              Claimant injured his left elbow on September 17, 1987, file 
 
         No. 881784).  Dr. Coates opined that claimant had a 5 percent 
 
         permanent partial impairment to his left upper extremity.
 
         
 
              Claimant incurred an injury to his right knee on February 
 
         15, 1988.  Dr. Coates opined that claimant had a 5 percent 
 
         permanent partial impairment to his right lower extremity.  Dr. 
 
         Coates testified he further opined claimant has a total of 10 
 
         percent impairment of this right knee, 5 percent of which is work 
 
         related (Jt. Ex. 9, p. 59).  This is represented by file No. 
 
         888705.
 
         
 
              Claimant received a February 15, 1988 injury to his left 
 
         shoulder (file No. 877458).  He incurred a surgery on this left 
 
         shoulder on April 13, 1988, at which time he had also had surgery 
 
         on the right knee previously referred to (file No. 888705).
 
         
 
              Defendant employer and insurance carrier are basically 
 
         challenging only one injury, the February 15, 1988 left shoulder 
 
         injury (file No. 877458).  The main dispute is whether this is a 
 
         scheduled member injury or body as a whole injury.  Defendants 
 
         admitted, and have paid on, a left shoulder injury as a scheduled 
 
         member injury.  There are a few weeks disputed as to the extent 
 
         of claimant's healing period.  Claimant contends the February 15, 
 
         1988 left shoulder injury goes into the body as a whole.  Since 
 
         this dispute arose, the claimant brought in the Second Injury 
 
         Fund by an amendment filed a couple of weeks before the hearing.  
 
         There is no question that the evidence shows claimant's four 
 
         alleged cumulative injuries arose out of and in the course of 
 
         claimant's employment. as to the Second Injury Fund.  Defendant 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         employer and insurance company stipulated that these four alleged 
 
         cumulative injuries arose out of and in the course of claimant's 
 
         employment and that there is a causal connection between 
 
         claimant's work injury and the permanent disability.  The Second 
 
         Injury Fund also stipulated to a causal connection but disputed 
 
         whether the injuries arose out of and in the course of claimant's 
 
         employment.  Notwithstanding the stipulations between the other 
 
         parties referred to above, the claimant has sustained his burden 
 
         concerning the issue of arising out of and in the course of 
 
         employment as to the Second Injury Fund.  Although voluntary 
 
         payment by defendant employer and insurance company is not 
 
         admission of liability, it is clear from the evidence, claimant's 
 
         brief and comments of these defendants' attorney that the payment 
 
         on certain of these injuries, according to the opined permanent 
 
         impairment and the particular scheduled member involved, 
 
         indicated defendants accepted the liability to the extent of 
 
         these payments.  The undersigned could take considerable time to 
 
         specifically set out matters in more detail, but it is obviously 
 
         not necessary.  The undersigned finds that claimant's September 
 
         17, 1986 cumulative right elbow injury, his September 17, 1987 
 
         cumulative left elbow injury, his February 15, 1988 cumulative 
 
         right knee injury, and his February 15, 1988 left shoulder injury 
 
         all arose out of and in the course of his employment on the 
 
         respective dates set out herein.
 
         
 
              It appears that an auto accident claimant had in October 
 
         1988 did not cause any permanent impairment to claimant.  
 
         Claimant said he settled out of court.  He said he did not have 
 
         any personal injuries resulting from that accident.
 
         
 
              Notwithstanding the injuries previously referred to herein, 
 
         claimant was working full-time up until defendant employer closed 
 
         its place of business on or around March 11, 1990.  Claimant 
 
         acknowledged that he could operate the fork lift today if 
 
         defendant employer was still in business and he has passed the 
 
         test to do so without restrictions except for eyeglasses.  
 
         Claimant insisted he would be operating the fork lift with pain 
 
         in his left shoulder.
 
         
 
              Until claimant was restricted by Dr. Coates on January 31, 
 
         1989 (Jt. Ex. 1, p. 89), claimant moved up in seniority as to a 
 
         better job.  Whatever claimant's medical problem was, it did not 
 
         keep claimant from seeking other jobs within the company.  
 
         Claimant continued this after 1989, but claimant said the company 
 
         would not let him have any other type jobs other than skinning 
 
         hams.  Claimant indicated the jobs on Joint Exhibit 1, page 78 
 
         and 79, were jobs he was able to do but defendant employer did 
 
         not think he was able to do them or would not let him do them 
 
         because of claimant's restrictions.
 
         
 
              Claimant has been seeking psychiatric care for many years 
 
         and has had anxiety attacks.  In or around September or October 
 
         1988 claimant was having severe signs of agitation, anger, 
 
         tenseness, and raising his voice to the interviewer with the 
 
         rehabilitation consultant, which was making the vocational 
 
         counseling a very slow process (Jt. Ex. 2, pp. 49, 52 and 54).  
 
         Claimant indicated that around this time defendant employer 
 
         wanted him to quit work and wanted to get rid of him.  Claimant 
 
         related he had an anxiety attack, which is like a heart attack.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              Claimant was paid $8.85 per hour when he last worked for 
 
         defendant employer and contends he would be making $9.42 if he 
 
         was working for defendant employer today.  Claimant was very 
 
         insistent and became angry when he was confronted with a thought 
 
         of working for less than $8.85 per hour.
 
         
 
              On February 25, 1988, claimant was seen by Dr. Coates for 
 
         left shoulder pain.  After giving claimant an MRI, the doctor 
 
         concluded claimant had an impingement syndrome.  The doctor 
 
         performed an arthroscopy of the left shoulder with resection of 
 
         the labrum tear, subacrominal space (Jt. Ex. 9, p. 20).  The 
 
         doctor described in detail the area and nature of this 
 
         impingement (Jt. Ex. 9, pp. 20-22).
 
         
 
              Dr. Coates released claimant to return to work in a limited 
 
         capacity on December 12, 1988 with restrictions of a 35 pound 
 
         weight carrying capacity, a 30 to 40 pound limit on lifting, 
 
         pulling or pushing, and restricted crawling, overhead reaching, 
 
         squatting and kneeling (Dep. Ex. 1 and 2 of Jt. Ex. 9; and Jt. 
 
         Ex. 1, p. 87).  Dr. Coates last saw claimant on January 12, 1989.  
 
         Dr. Coates opined a 10 percent impairment to claimant's upper 
 
         extremity, left shoulder (Jt. Ex. 9, p. 26-27).  The doctor said 
 
         he rated this as an upper extremity as it is distal or beyond the 
 
         scapula, the scapula being the shoulder blade.  On the date of 
 
         this deposition, March 26, 1990, Dr. Coates was aware that 
 
         claimant sought a second opinion from Dr. James B. Nepola, of the 
 
         University of Iowa Hospitals, and that this doctor was planning a 
 
         subacromonial decompression and a acriomioplasty and distal 
 
         clavicle resection (Jt. Ex. 9, pp. 28-29), which is the same 
 
         procedure claimant had on the opposite shoulder by Dr. Hawkins.  
 
         Dr. Coates anticipated that this planned surgery would reduce the 
 
         loss of function or improve the shoulder function.
 
         
 
              Dr. Coates obviously struggled in his testimony when pressed 
 
         to distinguish claimant's left shoulder impairment rating between 
 
         a left upper extremity or body as a whole (Jt. Ex. 9, p. 30).  
 
         The doctor said this is a difficult gray area in orthopedic law. 
 
         Dr. Coates consistently refers to claimant's left shoulder and 
 
         left upper extremity.  He never refers to claimant's left arm.  
 
         Although it is true the arm is an upper extremity, it becomes 
 
         extremely important in this case under consideration that 
 
         exactness in terms be used.  Dr. Coates said the acromion is 
 
         clearly part of the axial skeleton, the humerus is not (Jt. Ex. 
 
         9, p. 23).  An impingement syndrome which claimant had in his 
 
         left shoulder as a result of his February 15, 1988 cumulative 
 
         injury is simply a pinching of the soft tissues above the 
 
         shoulder.  The bone on the top of the shoulder called the 
 
         acromion is a flat bone that you can feel on the very top of your 
 
         shoulder (Jt. Ex. 9, p. 18).  Claimant's April 13, 1988 left 
 
         shoulder arthroscopy was performed to correct claimant's 
 
         condition (Jt. Ex. 9, p. 20).  Dr. Coates understands claimant is 
 
         going to have an acriomioplasty surgery May 3, 1990, which 
 
         involves part of the shoulder and not the humerus.  It is obvious 
 
         from Dr. Coate's testimony that this surgery affects claimant's 
 
         axial skeleton (Jt. Ex. 9, p. 49).  Later in his testimony, Dr. 
 
         Coates said that when he is talking about the shoulder, he is 
 
         talking about the entire joint but emphasized the place he 
 
         performed his April 13, 1988 injury was distal to the acromion 
 
         (Jt. Ex. 9, p. 60-62).  He said the surgical problem he treated 
 
         is actually in the shoulder and not the arm (Jt. Ex. 9, p. 49).
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
              Dr. Coates acknowledged that Dr. Nepola is going to try to 
 
         treat the same condition that he was treating and Dr. Nepola has 
 
         elected to do another surgery.  Although Dr. Coates would not 
 
         elect surgery at this time (March 26, 1990) because of the scar 
 
         tissue formation, Dr. Coates hedged on his conclusions somewhat.  
 
         He indicated that there were some different facts occurring 
 
         between the last time he saw the claimant in January 1989 versus 
 
         Dr. Nepola's decision in March 1990, which may modify Dr. Coates' 
 
         thinking a little bit (Jt. Ex. 34).
 
         
 
              From the evidence presented, the undersigned cannot tell 
 
         exactly where the anticipated May 1990 surgery will actually 
 
         physically be performed other than it is similar to the surgery 
 
         claimant already had.  It would appear that this May 1990 surgery 
 
         will involve an area affecting claimant's body as a whole.  On 
 
         January 13, 1989, Dr. Coates wrote that:
 
         
 
              In paragraph #6, in regards to the left shoulder, I had 
 
              indeed rated him at ten percent permanent partial 
 
              impairment of the use of the left shoulder.  Since he 
 
              had had problems in the extremities at the elbow as 
 
              well, I have rated that as an impairment of the upper 
 
              extremity, even though it does affect part of the axial 
 
              skeleton.
 
         
 
              
 
         (Jt. Ex. 1, p. 70)
 
         
 
              Although there is no dispute in the evidence of the fact 
 
         that claimant will have a surgery on May 3, 1990, we could only 
 
         speculate as to whether the anticipated surgery will, in fact, 
 
         result in greater function or lesser function and more or less 
 
         impairment.  The fact is claimant has a present condition that 
 
         needs correcting in the opinion of Dr. Nepola.   Dr. Coates 
 
         apparently felt claimant had a 50-50 chance of improvement with 
 
         additional surgery (Jt. Ex. 1, pp. 44, 71).  The undersigned 
 
         finds that anything affecting a part of the axial skeleton does 
 
         go into an individual's body as a whole.
 
         
 
              Taking all the medical evidence into consideration, the 
 
         undersigned finds that claimant's left shoulder injury is, in 
 
         fact, an injury to claimant's body as a whole and affects his 
 
         body as a whole.  It appears from the testimony that Dr. Coates 
 
         believes claimant's May 3, 1990 surgery will involve claimant's 
 
         axial skeleton.  Dr. Coates at one time indicated this 
 
         anticipated May 3, 1990 surgery is similar to the surgery he 
 
         performed on April 13, 1988, and yet it seems slightly different.  
 
         Claimant has a condition that must be corrected.  Dr. Coates has 
 
         opined an impairment rating.  Taking all the facts into 
 
         consideration and the expertise of this agency, the undersigned 
 
         finds claimant has an impairment to his body as a whole in the 
 
         amount of 6 percent.  The undersigned will not speculate as to 
 
         the outcome of claimant's future surgery.  The law provides a 
 
         remedy to all the parties through a review-reopening procedure if 
 
         the surgery provides results contrary to what currently exists 
 
         regarding claimant's impairment and disability.  Although it 
 
         would have been most likely more efficient if this case hadn't 
 
         been heard on April 11, 1990 but delayed until claimant had his 
 
         May 3, 1990 surgery, claimant insisted on his previously set day 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         in court
 
         
 
              Now that it has been found that claimant's cumulative left 
 
         shoulder injury of February 15, 1988 is a body as a whole injury, 
 
         discussion will now be diverted to the three scheduled member 
 
         injuries.
 
         
 
              Considering the stipulations the parties have entered into 
 
         and the evidence in this case, the undersigned finds that:
 
         
 
               Claimant has a 20 percent work-related permanent partial 
 
         impairment to his right elbow as a result of his September 17, 
 
         1986 cumulative injury.  This elbow injury is further determined 
 
         to involve claimant's upper extremity (Jt. Ex. 1, p. 51).  
 
         Claimant is entitled to 44 weeks of permanent partial disability 
 
         benefits at the rate of $218.70 beginning October 10, 1986.
 
         
 
              Claimant has a 5 percent work-related permanent partial 
 
         impairment to his left elbow as a result of his cumulative 
 
         September 17, 1987 injury.  This elbow injury is further 
 
         determined to involve the upper extremity.
 
         
 
              Claimant incurred a 10 percent permanent partial impairment 
 
         to his left knee on December 17, 1982.
 
         
 
              Claimant injured his right shoulder and incurred a surgery 
 
         on March 1, 1985, resulting in a 2 percent permanent partial 
 
         disability and ultimately there was a 6 percent full commutation, 
 
         file No. 799533 (Jt. Ex. 1, p. 35).
 
         
 
              Claimant has a 10 percent permanent partial impairment to 
 
         his right knee for which 5 percent is the result of claimant's 
 
         work-related cumulative injury on February 15, 1988.
 
         
 
              Claimant has a 10 percent permanent partial impairment to 
 
         his left shoulder which the undersigned finds is a 6 percent 
 
         permanent partial impairment to claimant's body as a whole as a 
 
         result of his February 15, 1988 cumulative left shoulder injury.
 
         
 
              Since claimant incurred two injuries on February 15, 1988, 
 
         and one of said injuries has been found to result in an injury to 
 
         claimant's body as a whole, then these two injuries together must 
 
         be rated industrially.  The undersigned finds that claimant's 
 
         February 15, 1988 injuries resulted in a combined impairment to 
 
         claimant's body as a whole in the amount of 8 percent.
 
         
 
              Claimant has had a long history of depression and anxiety 
 
         problems and has sought psychiatric help.  He has been on 
 
         medication for several years to help reduce the effects of his 
 
         problems.  The undersigned finds that claimant's anxiety and 
 
         mental problems are not the material results of any of claimant's 
 
         injuries but are caused as much, if not more, by claimant's other 
 
         personal and family problems.
 
         
 
              Claimant was working at defendant employer until defendant 
 
         closed its business and filed bankruptcy in March 1990.  There is 
 
         no reason to believe claimant would not have been still working 
 
         for defendant employer had it not closed.  It is true claimant 
 
         would have had to take time off for his May 1990 surgery and 
 
         would have incurred a healing period.  Trying to estimate the 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         results of claimant's May 1990 surgery is speculative.  Although 
 
         it would be logical to presume some anticipated improvement was a 
 
         desired goal, Dr. Coates indicated that there was a 50-50 chance 
 
         of eliminating claimant's symptoms (Jt. Ex. 1, pp. 44, 71).  The 
 
         undersigned is considering the evidence and conditions existing 
 
         at the time of the hearing.  Since the claimant was working up 
 
         until March 11, 1990 notwithstanding all the injuries referred to 
 
         herein, the undersigned is presuming that claimant would have 
 
         continued to work in that job with no real loss of income had the 
 
         company not closed.   The claimant's current unemployment is not 
 
         the result of his injuries.  Of course, there may be facts in the 
 
         future to which the undersigned cannot consider that might 
 
         indicate claimant's ability to find a job with another employer 
 
         might be very difficult, and it could be later determined in a 
 
         review-reopening, with additional facts, that claimant has a 
 
         greater industrial disability than set out below as a result of 
 
         his February 15, 1988 injuries and what existed on April 11, 
 
         1990.  Claimant's May 3, 1990 surgery may also have a definite 
 
         impact on claimant's future.  This could, likewise, affect any 
 
         liability to the Second Injury Fund other than what may hereafter 
 
         be determined.  The undersigned emphasizes that he is only 
 
         considering the evidence and conditions existing at the time of 
 
         the hearing.
 
         
 
              Claimant is in an industry in which a healthy body is very 
 
         essential.  Use of one's arms, shoulders, back and body as a 
 
         whole is very important.  Claimant's approximate 28 years of 
 
         seniority and the existence of a union contract has obviously 
 
         been very beneficial to claimant, has enabled claimant to 
 
         continue with defendant employer, and has given an incentive for 
 
         defendant employer to find claimant a suitable job within the 
 
         company.  Since this hearing was approximately 30 days after 
 
         defendant employer closed his place of business, claimant 
 
         obviously has not had time to search for a job or to see whether 
 
         he could do similar work that he was doing up to March 11, 1990.  
 
         There is evidence that claimant was unsuccessful in finding a job 
 
         prior to being taken back by defendant employer in February 1989.  
 
         It is rather certain that any employer would think twice before 
 
         an employer would hire claimant until the May 3 surgery and its 
 
         results are known.  The fact is claimant needs additional 
 
         surgery.  Here is another example where the continuance of this 
 
         case could have been beneficial in solving the speculative 
 
         questions that the undersigned will not answer in this decision.  
 
         Although defendant employer continued to hire claimant in its 
 
         employment, the undersigned finds claimant is not able to do some 
 
         of the jobs he formerly did for defendant employer due to his 
 
         February 15, 1988 injuries.
 
         
 
              There is no evidence of an appreciable loss of income as a 
 
         result of claimant's injuries.  There is evidence that there is a 
 
         loss of income due to defendant employer closing its business due 
 
         to bankruptcy.  Claimant does have a loss of earning capacity as 
 
         a result of his February 15, 1988 injuries as he is not able to 
 
         do all the types of work he was previously able to do before 
 
         these two injuries.  The evidence shows that defendant employer 
 
         in finding claimant a job within the company obviously understood 
 
         claimant's restrictions and assigned him to a job, attempting to 
 
         take those restrictions under consideration.  It is very probable 
 
         that claimant most likely would not have retained a job with 
 
         defendant employer had claimant not had his high seniority and a 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         union contract was in existence.  With defendant employer now 
 
         closed, claimant has no seniority and no union contract to aid 
 
         him in holding and retaining a job.
 
         
 
              Taking into consideration claimant's age, motivation, prior 
 
         injuries, education, location of his injuries, extent of 
 
         functional impairment, the defendant employer's inability to 
 
         provide claimant a job and honor his seniority, and those other 
 
         criteria used to determine industrial disability, the undersigned 
 
         finds claimant has a 55 percent industrial disability as a result 
 
         of claimant's February 15, 1988 work-related right knee 
 
         cumulative injury combined with his work-related left shoulder 
 
         cumulative body as a whole injury.
 
         
 
              In summarizing defendant employer's and the insurance 
 
         carrier's responsibility to the claimant, they are responsible 
 
         for paying claimant 44 weeks of permanent partial disability 
 
         benefits as to the September 17, 1986 injury at the rate of 
 
         $218.70, 11 weeks of permanent partial disability benefits as a 
 
         result of claimant's September 17, 1987 left elbow-arm injury at 
 
         the rate of $241.01 per week, and 275 weeks of permanent partial 
 
         disability benefits in relation to the two February 15, 1988 
 
         injuries at the rate of $232.88.
 
         
 
              There is a dispute between the employer, insurance carrier 
 
         and claimant concerning healing period in file Nos. 877458 and 
 
         888705, the left shoulder and right knee injuries.  The disputed 
 
         period is the one beginning December 20, 1988 up to and including 
 
         January 31, 1989.  Joint Exhibit 1, page 87, indicates that Dr. 
 
         Coates released claimant to return to work beginning December 12, 
 
         1988.  Claimant worked until approximately December 20, 1988, 
 
         when he was bumped from his job.  The evidence indicates claimant 
 
         did not return to work again until February 1, 1989.  The 
 
         evidence is confusing because Joint Exhibit 1, page 89, indicates 
 
         a message from Dr. Coates that claimant could return to work at 
 
         the lean and trim job on January 31, 1989.  Page 88 of the same 
 
         exhibit indicates claimant could return to work January 16, 1989.  
 
         The fact is claimant was not off work beginning December 20, 1988 
 
         to and including January 31, 1989 for healing period purposes.  
 
         Claimant has failed to prove that he is entitled to any healing 
 
         period for the period in dispute.  The undersigned finds claimant 
 
         is not entitled to healing period benefits from the period 
 
         December 12, 1988 up to and including January 31, 1989, after 
 
         which claimant returned to work.  Likewise, claimant's claim for 
 
         healing period from his scheduled shoulder surgery of May 3, 1988 
 
         to some unknown time in the future is denied.  How claimant 
 
         expected the undersigned to award any healing period benefits for 
 
         this speculative and anticipatory period is beyond imagination.
 
         
 
              Claimant is not entitled to any interest on any right elbow 
 
         benefits based on a 20 percent impairment (file No. 834865) for 
 
         the period of November 10, 1986 to November 20, 1987.  Dr. Hales 
 
         did not issue an impairment rating until November 6, 1987 and 
 
         after this rating, defendant insurance carrier began paying the 
 
         permanent partial disability benefits approximately two weeks 
 
         thereafter.  It is found claimant is not entitled to any interest 
 
         for said period.
 
         
 
              We must now address the Second Injury Fund's liability, if 
 
         any.  There is no sense going into detail as to any liability of 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         the Second Injury Fund in reference to claimant's September 17, 
 
         1986 injury in which claimant's December 17, 1982 left knee 
 
         injury would be its first injury.  Claimant was working for 
 
         defendant employer and there is no evidence of any increase of 
 
         permanent partial impairment or disability to claimant as a 
 
         result of his first and second injuries.
 
         
 
              The same is true as to claimant's September 17, 1987 left 
 
         elbow injury to which claimant's first injury would be claimant's 
 
         right elbow September 17, 1986 injury and claimant's December 17, 
 
         1982 left knee injury.
 
         
 
              This now leaves only the two February 15, 1988 injuries, to 
 
         which the first injuries would be claimant's September 17, 1987 
 
         left elbow injury, his September 17, 1986 right elbow injury, and 
 
         his December 17, 1982 left knee injury.  The Second Injury Fund 
 
         is not applicable to the February 15, 1988 injuries in light of 
 
         finding that the left shoulder is a body as a whole injury and, 
 
         therefore, the two February 15, 1988 injuries are rated 
 
         industrially.  We no longer have a scheduled injury scenario as 
 
         to these two injuries.  As referred to earlier, claimant was 
 
         working until defendant employer closed the doors.  It would 
 
         appear that claimant would still be working if defendant employer 
 
         hadn't taken bankruptcy.  As of April 11, 1990, there appears no 
 
         additional industrial disability for which the Second Injury Fund 
 
         would be responsible.   Whether claimant's May 3, 1990 surgery 
 
         will change this will have to be later decided, if the future 
 
         facts warrant, and a review-reopening action might then be 
 
         warranted by one or more of the parties.  The undersigned finds 
 
         at this time that there is no liability to the Second Injury 
 
         Fund.  The undersigned finds there is no necessity to go through 
 
         more detail and mathematical gymnastics, offsetting of credits, 
 
         and arriving at this same conclusion.  There is no medical 
 
         testimony or evidence that sums up claimant's current total 
 
         impairment as a result of all of claimant's applicable injuries.  
 
         At this time, it would be strictly speculative for the 
 
         undersigned to determine that claimant has any industrial 
 
         disability greater or lesser than what he has currently found.  
 
         It is, likewise, evident as to what has been said prior hereto 
 
         that it would seem obvious that there may be a review-reopening 
 
         proceeding brought by one or more of the parties after claimant 
 
         has his May 3, 1990 surgery and that is why there was extensive 
 
         discussion, as previously referred to concerning the advisability 
 
         of this case being continued until certain other events occurred 
 
         which would further firm up items that would now be considered 
 
         purely speculative.
 
         
 
              Claimant contends he is an odd-lot candidate.  Without 
 
         rehashing all the prior parts of this decision pertinent thereto, 
 
         it is obvious claimant is not an odd-lot candidate under the law. 
 
         There is insufficient evidence at this time to warrant the 
 
         application of this doctrine.   Approximately 30 days before the 
 
         hearing, claimant was fully employed and the only event that 
 
         occurred that resulted in claimant no longer working was the 
 
         closing and the taking of bankruptcy by defendant employer.  
 
         There is no evidence that claimant's injuries have resulted in 
 
         claimant being unemployable.  Claimant has not made a meaningful 
 
         attempt to find a job and it is understandable as claimant has 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         not had much time since he has only been unemployed 30 days since 
 
         he was last working on March 11, 1990.  The undersigned also 
 
         realizes that it would be somewhat nonproductive for claimant to 
 
         look for a job if claimant were totally honest to a potential 
 
         employer and would tell that employer he is going to be having 
 
         shoulder body as a whole surgery on May 3, 1990 and there may be 
 
         an extensive healing period.  The undersigned finds claimant is 
 
         not an odd-lot employee as of April 11, 1990.
 
         
 
                                conclusions of law
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on September 17, 1986, 
 
         September 17, 1987, and two injuries on February 15, 1988 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
         
 
              The 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, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
                 Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered....In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              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).
 
         
 
              The mere fact that the rating pertains to a scheduled member 
 
         does not mean the disability is restricted to a schedule.  Pullen 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa 
 
         Industrial Commissioner Reports 308 (Appeal Decision 1982).
 
         
 
              Thereby, applying the applicable law and considering the 
 
         prior findings of fact, after considering all the evidence, the 
 
         undersigned further concludes that:
 
         
 
              Claimant's cumulative right elbow injury on September 17, 
 
         1986 arose out of and in the course of claimant's employment.
 
         
 
              Claimant's cumulative left elbow injury of September 17, 
 
         1987 arose out of and in the course of his employment.
 
         
 
              Claimant's cumulative right knee injury of February 15, 1988 
 
         arose out of and in the course of his employment 
 
         
 
              Claimant's cumulative left shoulder injury of February 15, 
 
         1988 arose out of and in the course of his employment.
 
         
 
              Claimant's cumulative work-related right elbow injury on 
 
         September 17, 1986 caused claimant to incur a 20 percent 
 
         permanent partial impairment to his right arm.  
 
         
 
              Claimant's cumulative work-related cumulative left elbow 
 
         injury on September 17, 1987 caused a 5 percent permanent partial 
 
         impairment to claimant's left arm.
 
         
 
              Claimant's cumulative work-related right knee injury on 
 
         February 15, 1988 caused claimant to have a 5 percent permanent 
 
         partial impairment which was in addition to claimant's prior 5 
 
         percent permanent partial impairment to his right knee. 
 
         
 
               Claimant's cumulative work-related left shoulder injury on 
 
         February 15, 1988 resulted in a 6 percent impairment to 
 
         claimant's body as a whole.
 
         
 
              Claimant's cumulative work-related right knee injury and 
 
         left shoulder body as a whole injury on February 15, 1988 
 
         resulted in a combined body as a whole impairment of 8 percent.
 
         
 
              Claimant has a 10 percent permanent partial impairment to 
 
         his left knee caused by his December 1982 injury. 
 
         
 
              Claimant had a March 1985 right shoulder injury, resulting 
 
         in a 2 percent permanent disability (impairment) rating and a 6 
 
         percent full commutation.
 
         
 
              Claimant has not incurred any additional healing period than 
 
         what has otherwise been stipulated to and paid by defendant 
 
         employer and insurance carrier and claimant is not entitled to 
 
         any healing period for the period beginning December 20, 1988 
 
         through January 31, 1989.
 
         
 
              Claimant is not entitled to any additional interest 
 
         regarding any permanent partial disability benefits regarding his 
 
         September 17, 1986 right elbow injury (file No. 834865).
 
         
 
              Claimant's psychiatric problems were not materially or 
 
         proximately caused by any of claimant's injuries.
 
         
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
              Claimant incurred a 55 percent loss of earning capacity 
 
         caused by his cumulative February 15, 1988 right knee injury and 
 
         his cumulative left shoulder body as a whole injury.
 
         
 
              Claimant is not an odd-lot employee.
 
         
 
              Claimant is scheduled for another left shoulder surgery on 
 
         May 3, 1990.
 
         
 
              The Second Injury Fund of Iowa is not liable to the claimant 
 
         for any benefits herein.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to fifty (50) weeks of permanent 
 
         partial disability benefits at the rate of two hundred eighteen 
 
         and 70/100 dollars ($218.70) as a result of his September 17, 
 
         1986 cumulative right elbow injury (file No. 834865).  Payments 
 
         are to commence on November 10, 1986.
 
         
 
              That claimant is entitled to twelve point five (12.5) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred forty-one and 01/100 dollars ($241.01) as a result of his 
 
         cumulative left elbow injury on September 17, 1987 (file No. 
 
         881784).  Payments are to commence on September 17, 1987.
 
         
 
              That claimant is entitled to two hundred seventy-five (275) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred thirty-two and 88/100 dollars ($232.88) as a result of 
 
         his cumulative February 15, 1988 right knee injury (file No. 
 
         888705) and his left shoulder body as a whole injury (file No. 
 
         877458).  Payments are to commence on February 1, 1989.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Regarding claimant's September 17, 
 
         1986 right elbow injury (834865), the parties stipulated that all 
 
         temporary total disability benefits and fifty (50) weeks of 
 
         permanent partial disability benefits have been paid at the rate 
 
         of two hundred fifty-four and 38/100 dollars ($254.38), for a 
 
         total payment of twelve thousand seven hundred nineteen 
 
         ($12,719).  On file No. 877458, left shoulder injury, and file 
 
         No. 888705, right knee injury, both occurring February 15, 1988, 
 
         the parties stipulated that claimant was paid healing period or 
 
         temporary total disability benefits to which he was entitled, 
 
         amounting to thirty-nine point one four three (39.143) weeks at 
 
         the rate of two hundred thirty-eight and 98/100 dollars ($238.98) 
 
         per week, and claimant was paid twenty-six (26) weeks of 
 
         permanent partial disability benefits for the left shoulder 
 
         injury (file No. 877458), at the rate of two hundred thirty-eight 
 
         and 98/100 dollars ($238.98) per week.
 
         
 
              That the Second Injury Fund owes claimant nothing as a 
 
         result of this action.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
              That defendants employer and insurance carrier shall pay the 
 
         costs of this action, pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this _____ day of June, 1990.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr James M Peters
 
         Attorney at Law
 
         1200 MNB Bldg
 
         Cedar Rapids IA 52401
 
         
 
         Mr E J Giovannetti
 
         Ms Valerie A Fandel
 
         Attorneys at Law
 
         Terrace Ctr Ste 111
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 
         Mr Robert D Wilson
 
         Assistant Attorney General
 
         Tort Claims
 
         Hoover Building
 
         Des Moines IA 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100; 5-1803; 1803.1
 
                                          1803; 5-3200; 5-4100
 
                                          Filed June 15, 1990
 
                                          Bernard J O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DUANE BEVINS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 834865
 
            vs.                           :                 881784
 
                                          :                 877458
 
            FARMSTEAD FOODS,              :                 888705
 
                                          :
 
                 Employer,                :     A R B I T R A T I O N
 
                                          :
 
            and                           :        D E C I S I O N
 
                                          :
 
            EMPLOYERS MUTUAL COMPANY,     :
 
                                          :
 
                 Insurance Carrier,,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Found all four cumulative injuries arose out of and in the 
 
            course of claimant's employment as to the Second Injury 
 
            Fund.  Defendants employer and insurance carrier stipulated 
 
            to the arising out of and in the course of.
 
            Found claimant's cumulative work-related right elbow injury 
 
            of September 17, 1986 caused a 20% permanent partial 
 
            impairment to claimant's right arm - 50 weeks awarded.
 
            
 
            5-1803
 
            Found claimant's September 17, 1987 work-related cumulative 
 
            left elbow injury caused 5% permanent partial impairment to 
 
            claimant's left arm - 12.5 weeks awarded.
 
            
 
            5-1803
 
            Found Claimant's February 15, 1988 cumulative work-related 
 
            injury caused a 5% permanent partial impairment to 
 
            claimant's right knee.
 
            
 
            1803.1
 
            Found claimant's February 15, 1988 cumulative work-related 
 
            left shoulder injury caused a 6% permanent impairment to 
 
            claimant's body as a whole.
 
            
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            1803.1; 1803
 
            Found the combined February 15, 1988 right knee and left 
 
            shoulder injuries resulted in an 8% body as a whole 
 
            permanent impairment resulting in a 55% loss of earning 
 
            capacity in industrial disability as to these two injuries - 
 
            275 weeks awarded.
 
            
 
            5-4100
 
            Found claimant is not an odd-lot employee.
 
            
 
            5-3200
 
            Found no liability on behalf of Second Injury Fund.  
 
            Claimant scheduled for another left shoulder surgery May 3, 
 
            1990, three weeks after hearing.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GORDIE THOMAS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 881950
 
            YOUNG RADIATOR COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Gordie 
 
            Thomas, claimant, against Young Radiator Company, employer, 
 
            and Fireman's Fund Insurance Company, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on April 4, 1988.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on February 21, 1991, in Des Moines, 
 
            Iowa.  The record was considered fully submitted at the end 
 
            of the hearing.  Claimant was present and testified.  Also 
 
            present and testifying at the hearing was Delores Jean 
 
            Carpenter, claimant's sister, and Barbara Laughlin, 
 
            rehabilitation consultant.  The record consists of joint 
 
            exhibits 1-3 and 5-18.  Claimant presented exhibit 4 and 
 
            exhibits A, B and C, which were objected to by defendants 
 
            because they were not in compliance with the hearing 
 
            assignment order dated November 9, 1990, which established 
 
            the discovery deadline of January 21, 1991.  Defendants' 
 
            objection was sustained and claimant made an offer of proof 
 
            as to these exhibits.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            February 21, 1991, the parties stipulated that claimant 
 
            sustained an injury on April 4, 1988, which arose out of and 
 
            in the course of her employment with employer and that such 
 
            injury is a cause of temporary disability during a period of 
 
            recovery.  The parties further stipulated that if the injury 
 
            is found to be a cause of permanent disability, it is an 
 
            industrial disability to the body as a whole.  In the event 
 
            of an award of weekly benefits, the rate of weekly 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            compensation is stipulated to be $203.42 per week.  
 
            Defendants agree to pay all medical benefits under Iowa Code 
 
            section 85.27.  Defendants have paid claimant 46 weeks of 
 
            compensation at the rate of $203.42.
 
            
 
                 The issues remaining to be decided are:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injury and the disability on which she 
 
            now bases her claim; and,
 
            
 
                 2.  The nature and extent of any benefit entitlement.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on March 29, 1947 and completed the 
 
            eighth grade of school.  She obtained her GED certificate on 
 
            January 19, 1991.  She worked at various times as a 
 
            dishwasher, waitress and bartender.  Sometime in 1973, 
 
            claimant went to work for McGraw-Edison as a punch-press 
 
            operator.  She worked there for five years and then worked 
 
            as a nurse's aide for several months.  In July of 1978, she 
 
            went to work for Young Radiator Company.  Her work activity 
 
            was primarily as a punch-press operator.  In this capacity, 
 
            she was required to push and pull dyes which weighed 
 
            anywhere from 20 to 200 pounds.
 
            
 
                 Claimant testified that on or about April 4, 1988, 
 
            while performing her job duties, she experienced a sudden 
 
            onset of right shoulder and neck pain.  She informed her 
 
            foreman of her condition but was able to finish out the day 
 
            and the rest of the week doing paperwork rather than her 
 
            usual duties.  On April 10, 1988, her condition deteriorated 
 
            and she presented to the emergency room at St. Joseph's 
 
            Mercy Hospital in Centerville, Iowa.  She was seen by S. S. 
 
            Jewett, M.D.  Cervical spine x-rays were taken and were 
 
            within normal limits (Exhibit 10, page 200).  She was 
 
            treated with Flexeril and Tylenol #3 for pain and was 
 
            advised to use heat and rest.  Her symptoms persisted and on 
 
            April 12, 1988, she sought David V. Fraser, M.D.  Dr. Fraser 
 
            diagnosed myofascial strain medial to the right scapula and 
 
            prescribed medication, heat, restricted activity and 
 
            physical therapy (Ex. 3, p. 25).
 
            
 
                 Claimant's condition was not improved with physical 
 
            therapy and was referred to Dr. Fraser.  He admitted her to 
 
            St. Joseph's Mercy Hospital on April 14, 1988 and she was 
 
            started on cervical traction and hot packs.  She obtained no 
 
            relief from therapy and was referred to David J. Boarini, 
 
            M.D., for further evaluation (Ex. 10).
 
            
 
                 Claimant was examined by Dr. Boarini on April 19, 1988 
 
            and he noted some decrease in neck extension.  He diagnosed 
 
            myofascial neck pain.  He prescribed Motrin and Flexeril.  
 
            He recommended physical therapy and an EMG study.  This was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            performed on May 2, 1988 and was entirely normal (Ex. l).
 
            
 
                 Claimant continued to be symptomatic and Dr. Boarini 
 
            referred her for a myelogram.  This was performed at Iowa 
 
            Methodist Medical Center in Des Moines, Iowa on May 16, 
 
            1988.  A report of the results by Stuart K. Lehr, M.D., 
 
            revealed posterolateral disc protrusion on the right at C5-6 
 
            (Ex. 9, p. 141).  On May 17, 1988, Dr. Boarini performed a 
 
            C5/6 anterior cervical fusion (Ex. 9, p. 121).  Sutures were 
 
            removed from the neck incision on May 19, 1988 and she was 
 
            discharged from the hospital with the advice to refrain from 
 
            any heavy lifting (Ex. 9, p. 115).
 
            
 
                 On May 23, 1988, Dr. Fraser removed the sutures from 
 
            the donor site on the right iliac crest.  He noted swelling 
 
            in the surgical wound of the right neck.  He prescribed 
 
            Motrin and Tylenol #3.  On June 16, 1988, cervical spine 
 
            x-rays were performed and showed a solid union and bone 
 
            graft in good condition.  Claimant then saw Dr. Fraser for a 
 
            follow-up evaluation on June 20, 1988.  She reported 
 
            significant muscle spasms in the base of her neck with some 
 
            tension headaches.  He noted a fairly good range of motion 
 
            of the neck and minimal tenderness to palpitation.  Range of 
 
            motion of the right arm was unlimited.  Dr. Fraser noted 
 
            that she had been released to return to work on June 28 and 
 
            he had some reservations as to her ability to return to 
 
            regular duty so soon after surgery.
 
            
 
                 Claimant continued to have difficulty with neck pain.  
 
            She saw Dr. Boarini on August 4, 1988 and he noted that 
 
            "[t]he patient is entirely neurologically intact.  She has a 
 
            normal gait.  Range of motion in the neck is normal except 
 
            for some slight pain with extreme extension."  Cervical 
 
            spine films showed excellent healing and alignment.  He felt 
 
            that her aches and pains were entirely musculoskeletal but 
 
            recommended a work hardening program after which he expected 
 
            she would be able to return to work without any 
 
            restrictions.  At this time, he gave her a four to five 
 
            percent permanent partial impairment based on her cervical 
 
            fusion with no residual deficits (Ex. 1, p. 4).
 
            
 
                 Upon completion of the work hardening program, claimant 
 
            returned to work as a punch press operator on Monday, August 
 
            29, 1988.  She testified that she was unable to perform her 
 
            job duties without assistance and by the fourth day was in 
 
            extreme pain and was sent home by her supervisor to obtain 
 
            medical attention.  On September 7, 1988, she saw Dr. 
 
            Fraser.  She presented with complaints of bilateral shoulder 
 
            spasms, neck pain and bilateral arm pain.  On examination, 
 
            she had no passive limitation of motion.  Dr. Fraser 
 
            concluded that she was unable to perform her usual job.  He 
 
            recommended that she resume physical therapy (Ex. 3, p. 24).  
 
            When she saw Dr. Boarini on September 26, 1988, he concurred 
 
            that a change of work would be in her best interest (Ex. 1, 
 
            p. 3).
 
            
 
                 Claimant saw Dr. Fraser for follow-up examinations on 
 
            September 14, October 7 and October 20, 1988.  Her 
 
            complaints were referable to chronic shoulder and neck pain 
 
            and on October 20, she complained of low back pain.  Rather 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            than return to Dr. Boarini, claimant requested a second 
 
            opinion.  Dr. Fraser referred her to Robert C. Jones, M.D., 
 
            a neurosurgeon.  He evaluated her on November 28, 1988 and 
 
            neurologic findings were normal and range of motion of the 
 
            neck was good.  There was tenderness of the left shoulder 
 
            and he diagnosed bursitis.  He saw no evidence of cervical 
 
            radicular compression (Ex. 6, p. 40).  An MRI was taken but 
 
            was non-diagnostic because the films were blurred.  She was 
 
            referred to Kirk Green, D.O., orthopedic surgeon, for 
 
            evaluation of her left shoulder pain (Ex. 6, p. 38).
 
            
 
                 Claimant returned to Dr. Fraser on February 14, 1989, 
 
            with complaints of swelling and tenderness in her neck and 
 
            low back pain.  Dr. Fraser could detect no swelling and 
 
            range of motion studies were normal.  As there are multiple 
 
            complaints, he stated "I cannot relate this to her previous 
 
            injury of a herniated cervical disc."  (Ex. 3, p. 22)  Dr. 
 
            Jones concurred with Dr. Fraser's opinion that claimant's 
 
            low back pain cannot be related to the April 1988 work 
 
            injury.  He indicated that he saw claimant at Mercy Hospital 
 
            in 1988 for low back pain.  He also stated that "I would not 
 
            disagree with Dr. Boarini's physical impairment figure with 
 
            respect to her neck.  I understand he gave her 5 percent.  
 
            This should be related to industrial capacity as you well 
 
            know."  (Ex. 6, p. 36)
 
            
 
                 Finally, the record indicates that claimant was 
 
            referred by employer to Eischen Rehabilitation Services for 
 
            rehabilitation counseling and job placement.  Her case was 
 
            initially handled by Mr. Steven Loew.  An evaluation was 
 
            performed on June 6, 1989.  Mr. Loew worked with claimant 
 
            through November 19, 1989.  On November 10, 1989, he 
 
            reported, "At this time it does not appear that Ms. Thomas 
 
            would be able to engage in direct job placement due to her 
 
            symptoms or her frame of mind."  (Ex. 8, p. 81)
 
            
 
                 Upon Mr. Loew's resignation from Eischen, claimant's 
 
            case was given to Kathryn Bennett.  On the basis of Dr. 
 
            Boarini's assessment that claimant cannot tolerate 
 
            repetitive lifting in excess of 15 pounds, Ms. Bennett 
 
            contacted Pat Brown at Young Radiator and was told that they 
 
            had no work for claimant in view of her physical 
 
            restrictions and clerical limitation (Ex. 8, p. 81).
 
            
 
                 Barbara Laughlin testified that claimant's case was 
 
            given to her on April 2, 1990.  She testified that she 
 
            identified numerous job leads which she recommended claimant 
 
            pursue.  She indicated that these jobs took into account 
 
            claimant's lifting restrictions and were within a 40 mile 
 
            radius from claimant's residence.  The rate of pay ranged 
 
            from $4.00 to $6.00 an hour.  She testified that claimant 
 
            did not follow-up on any of the job leads.  It was her 
 
            opinion that claimant was not motivated to return to work 
 
            because she did not cooperate with her.  On 
 
            cross-examination, Ms. Laughlin admitted that she did not 
 
            perform a total job evaluation on every job lead.  She 
 
            testified that she was not aware that claimant attempted to 
 
            return to work at Young Radiator on two different occasions 
 
            and it was her understanding that the company would return 
 
            her to work if she presented herself to them.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that on November 17, 1990, she 
 
            leased the Bel Aire Lounge and has hired four workers to 
 
            assist her in running the business.  She testified that she 
 
            has had no income from the business to date.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            employment.  Section 85.3(1).
 
            
 
                 The parties do not dispute that claimant sustained a 
 
            neck injury which arose out of and in the course of her 
 
            employment.  Therefore, the issues to be determined are 
 
            whether claimant's injury is causally related to the 
 
            disability on which she now basis her claim and whether such 
 
            injury is the cause of both temporary and permanent 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 4, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 At the hearing, the claimant alleged disability due to 
 
            neck problems, spasms in her left arm, lower back pain and 
 
            pain in the heels of her feet.  However, claimant produced 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            no medical evidence pertinent to any injury other than 
 
            related to a posterior lateral disc protrusion in the right 
 
            at C5-6.  Claimant underwent anterior cervical fusion on May 
 
            17, 1988 and subsequent x-rays on June 16, 1988, 
 
            demonstrated solid union and a bone graft in good condition.  
 
            Follow-up evaluations by Drs. Boarini, Fraser and Jones 
 
            showed no abnormal neurological findings or evidence of 
 
            cervical radicular compression.  No physician who has 
 
            treated and/or examined the claimant as related multiple 
 
            complaints to the herniated cervical disc.  Cervical spine 
 
            x-rays taken at the University of Iowa Medical Center on 
 
            June 14, 1989, showed no evidence of instability.  Dr. 
 
            Boarini, the claimant's treating neurosurgeon, released her 
 
            to return to work following three weeks of work hardening.  
 
            Claimant returned to work on Monday, August 29, 1988.  Dr. 
 
            Boarini gave her a four to five percent permanent partial 
 
            impairment due to cervical fusion with no residual deficits.  
 
            He imposed limitations on repetitive lifting in excess of 15 
 
            pounds.  Accordingly, the medical evidence establishes a 
 
            causal connection between claimant's work injury and 
 
            cervical fusion resulting in permanent disability.  Claimant 
 
            is entitled to healing period benefits from April 11, 1988 
 
            through August 28, 1988 at the stipulated rate of $203.42 
 
            per week.
 
            
 
                 The parties have stipulated that if the injury is found 
 
            to be a cause of permanent disability, than such is an 
 
            industrial disability to the body as a whole.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 As previously noted, claimant was born on March 29, 
 
            1947 and is 43 years old.  She completed the eighth grade of 
 
            school and earned a GED certificate in January 1991.  Her 
 
            past work activity has been primarily entry level manual 
 
            labor.  Claimant has not worked for employer since September 
 
            1, 1988, when she could no longer perform her usual job as a 
 
            punch press operator.  Dr. Boarini and Dr. Fraser have 
 
            consistently held that claimant can no longer perform the 
 
            heavy work of a punch press operator but did not disqualify 
 
            her from performing lighter work.  No doctor has authorized 
 
            claimant to be off all work activity after August 1988.  
 
            There is conflicting evidence in the record as to whether 
 
            claimant has been able to obtain light work with employer.  
 
            Claimant stated that she has not been fired from the company 
 
            and is ready, willing and able to return to employment there 
 
            if lighter work can be found.  Vocational testimony is in 
 
            conflict as to whether or not jobs exist at Young Radiator 
 
            for claimant to perform.  When Pat Brown, personnel 
 
            director, was contacted by vocational rehabilitation she 
 
            indicated that no jobs exist for the claimant at this time.  
 
            Barbara Laughlin testified that claimant was unmotivated and 
 
            unwilling to look for other work.  However, claimant has 
 
            taken the initiative to borrow money from her ex-husband and 
 
            the bank to finance her own business.
 
            
 
                 Considering all the elements of industrial disability, 
 
            including claimant's functional impairment rating of five 
 
            percent; her physical limitations; her limited educational 
 
            background and work experience; her inability to perform her 
 
            past relevant work activity as a punch press operator; her 
 
            age and limited potential for retraining; as well as loss of 
 
            earnings and earning capacity; it is the conclusion of the 
 
            undersigned that claimant has sustained a permanent partial 
 
            disability of 15 percent for industrial purposes entitling 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            her to 75 weeks of permanent partial disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay to claimant healing period benefits from 
 
            April 11, 1988 through August 28, 1988 at the stipulated 
 
            rate of two hundred three and 42/l00 dollars ($203.42).
 
            
 
                 Defendants pay claimant seventy-five (75) weeks of 
 
            permanent partial disability benefits at the stipulated rate  
 
            of two hundred three and 42/l00 dollars ($203.42) per week.
 
            
 
                 Defendants are entitled to a credit for any benefits 
 
            previously paid to claimant.
 
            
 
                 Defendants to pay accrued amounts in a lump sum.
 
            
 
                 Defendants to pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants to pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants to file claim activity report as required by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James J. Beery
 
            Attorney at Law
 
            1122 Main St
 
            Norwalk  IA  50211
 
            
 
            Mr. Steven L. Udelhofen
 
            Attorney at Law
 
            Breakwater Bldg
 
            3708 75th St
 
            Des Moines  IA  50322
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50; 1402.30;
 
                           1402.40; 1802; 1803
 
                           Filed March 14, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GORDIE THOMAS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 881950
 
            YOUNG RADIATOR COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108.50; 1402.30; 1402.40; 1802; 1803
 
            Claimant, a 44 year old woman with an eighth grade education 
 
            and GED certificate and work background as punch press 
 
            operator, sustained a posterolateral disc protrusion on the 
 
            right at C5-6 and underwent a C5-6 anterior cervical fusion.  
 
            She was given a 5% functional impairment with a 15 pound 
 
            lifting limitation by her treating surgeon.  She was awarded 
 
            15% permanent partial disability for industrial purposes.