before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            CHARLES R. HAYES,     :
 
                        :
 
                 Claimant,   :        File No. 882072
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            WILSON FOODS CORPORATION,       :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            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 December 6, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            P.O. Box 535
 
            Cherokee, Iowa 51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            CHARLES R. HAYES,     :
 
                        :
 
                 Claimant,   :        File No. 882072
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            WILSON FOODS CORPORATION,       :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1803
 
            Claimant suffered a work injury to his shoulder in 1984.  
 
            Claimant reinjured this shoulder in 1988.  Claimant was 44 
 
            at time of the hearing.  His restrictions had increased from 
 
            the date of the first injury.  He was working at the same 
 
            job with increased wages.  Claimant was performing overtime 
 
            work but he did not think he could do overtime on the 
 
            weekends.  Claimant was awarded 25 percent industrial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES R. HAYES,             :
 
                                          :
 
                 Claimant,                :       File No. 882072
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            On May 5, 1989, Charles Hayes (claimant) filed a petition 
 
            for arbitration as a result of injuries to claimant's 
 
            shoulder occurring on February 5, 1988.  Wilson Foods Corp. 
 
            (Wilson or defendant) was identified as employer and 
 
            self-insured.  On May 2, 1991, these matters came on for 
 
            hearing in Storm Lake, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel Harry 
 
            Smith of Sioux City, Iowa and Wilson by its counsel David 
 
            Sayre of Cherokee, Iowa.  
 
            The record in this proceeding consisted of the following:
 
            1.  The live testimony of the claimant and Ron Liblot.  
 
            2.  Joint exhibits 1-25.
 
            stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            b.  The claimant sustained an injury on February 5, 1988, 
 
            which arose out of and in the course of employment.
 
            c.  The type of permanent disability, if the injury is found 
 
            to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            d.  The commencement date for permanent partial disability, 
 
            is November 11, 1990.
 
            e.  The rate of compensation, in the event of an award, is 
 
            $277.72 per week based on a gross weekly wage of $430.00. 
 
            Claimant is married and has two children.  He is entitled to 
 
            four exemptions.
 
            f.  Claimant's entitlement to medical benefits is not in 
 
            dispute.
 
            g.  Defendants make no claim for employee nonoccupational 
 
            group health plan benefits paid prior to hearing.
 
            h.  Defendants have paid 125 weeks of workers' compensation 
 
            benefits to claimant at the rate of $236.51 for file number 
 
            760655.
 
            i.  That there are no bifurcated claims.
 
            j.  The parties have agreed that the amount of costs to be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            taxed is $65.00.
 
            Issue
 
The only issue for resolution is whether a causal 
 
            relationship exists between claimant's claimed injuries and 
 
            the claimed disability and the nature and extent of any 
 
            entitlement to benefits, if any.
 
            
 
                                 findings of fact
 
            
 
                 1.  At the time of the hearing in this matter, claimant 
 
            was 44 years old.  At the time of the injury, claimant was 
 
            42 years old.  Claimant is married and has two children.  
 
            Claimant has completed high school and has one year of 
 
            college. 
 
            
 
                 2.  Throughout his working life, claimant has worked at 
 
            manual labor positions.  His first job after he completed 
 
            some of his education was in a turkey factory where he 
 
            cleaned sheds and trimmed turkeys for a $1.00 per hour.  His 
 
            first full-time job was as a common laborer and bridge 
 
            construction worker.  Next claimant worked for North 
 
            American Manufacturing and ran a forklift.  Claimant has 
 
            also had experience in the National Guard as an infantry 
 
            man.  Claimant began working for Wilson in May of 1966.  
 
            Claimant has worked for Wilson for 25 years at a variety of 
 
            jobs around the plant.  These jobs have included work on the 
 
            kill floor, pulling leaf lard, pump and press room, and 
 
            packing hams.
 
            
 
                 3.  While with Wilson, claimant has also had a series 
 
            of accidents.  Most pertinent to this decision is an injury 
 
            that occurred in 1984.  Claimant suffered an injury to his 
 
            right shoulder when he was stuffing hams.  Claimant pushed 
 
            on a ham and tore his rotator cuff.  The cuff was eventually 
 
            repaired by Michael Walsh, M.D.  Claimant came back and 
 
            worked in the same department approximately six to eight 
 
            months later.  As a result of that injury, claimant was 
 
            awarded 25 percent industrial disability by a decision that 
 
            was filed on January 22, 1988 by Deputy Industrial 
 
            Commissioner Walter R. McManus.  
 
            
 
                 4.  At the time claimant returned to work at Wilson, he 
 
            returned to the same department with certain restrictions.  
 
            Claimant had a functional impairment as found by Deputy 
 
            McManus as 12.4 percent.  This figure represents an average 
 
            of the permanent partial impairment ratings claimant 
 
            received previously.  These included ratings between six 
 
            percent and twenty percent.  Additionally, claimant could no 
 
            longer do work which required him to raise his right arm 
 
            above approximately eye level or shoulder level.  Claimant 
 
            was also limited as to how much weight he could lift with 
 
            his right arm.  Dr. Walsh, the primary treating physician, 
 
            indicated on April 26, 1985 that claimant should not be in 
 
            the jobs that involved heavier lifting than 30 pounds.
 
            
 
                 5.  The injury in issue in this matter occurred on 
 
            February 5, 1988 according to the claimant.  On February 19, 
 
            1988 claimant reported to Wilson that he had been lifting 
 
            some screens and had popped his right shoulder.  This 
 
            activity had resulted in pain and soreness in his shoulder.  
 
            Wilson's plant physician scheduled claimant for an EMG study 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with D. Nitz, M.D.  Additionally, claimant had some 
 
            chiropractic treatment which did not resolve his problem.  
 
            The EMG study for the right median and ulnar nerve was 
 
            normal.  Additionally, the right arm and shoulder were also 
 
            normal.  After the results of the EMG study were obtained, 
 
            claimant asked for a referral to Dr. Walsh for treatment for 
 
            his right shoulder.  Claimant was taken off work as of March 
 
            16, 1988 for this injury.
 
            
 
                 6.  On April 11, 1988, claimant saw Robert Dehne, M.D., 
 
            a colleague of Dr. Walsh at the University of Nebraska 
 
            Medical Center.  In the history given, claimant indicated 
 
            that he had re-injured his right shoulder.  The medical 
 
            notes reflect that claimant had a surgical history involving 
 
            this shoulder.  The mechanics of the injury were explained 
 
            to Dr. Dehne by claimant.  He indicated that his hand had 
 
            been caught in the wire mesh of a rack of hams and he was 
 
            forced into an external rotation with his arm down by his 
 
            side.  At the time of the examination, claimant had pain in 
 
            his shoulder, a marked limited range of motion, occasional 
 
            numbness in his neck and tingling in his fingers.  
 
            Claimant's thoracic outlet was normal and the review of the 
 
            EMG study was also normal.
 
            
 
                 7.  On May 5, 1988, claimant was operated on for repair 
 
            of an anterior superior glenoid labrum tear.  Additionally, 
 
            Dr. Walsh was going to make an exploration to determine 
 
            whether there had been a rupture of the biceps tendon at the 
 
            long head.  The postoperative diagnosis was an anterior 
 
            superior glenoid labrum tear and bicipital tendonitis.  At 
 
            the time of the surgery, Dr. Walsh noted that claimant had a 
 
            grossly inflamed and somewhat enlarged biceps tendon.  The 
 
            problem was corrected with surgical repair of the labrum.  
 
            Thereafter, claimant received physical therapy treatment to 
 
            increase the mobility of the shoulder.  
 
            
 
                 8.  In July of 1988, claimant returned to work with a 
 
            restriction of no lifting greater than 15-20 pounds.  
 
            Claimant had a brief flare-up when mobilization exercises 
 
            were increased in August of 1988.  However, claimant's range 
 
            of motion significantly improved by November of 1988.  Dr. 
 
            Julin, another colleague of Dr. Walsh, indicated upon an 
 
            examination that claimant lacked 5-10 degrees of shorter 
 
            extension and abduction and flexion.  He had good biceps 
 
            muscle strength.  Dr. Julin imposed restrictions for 
 
            claimant that he had to perform his work straight ahead of 
 
            him.  Claimant could not work side-to-side and he could not 
 
            lift heavy loads.
 
            
 
                 9.  In January of 1989, Dr. Walsh concluded that 
 
            claimant was able to handle the duties that were required of 
 
            him in his job as long as he was lifting something directly 
 
            in front of him.  Dr. Walsh noted that when claimant reaches 
 
            side-to-side or behind him he still has significant pain and 
 
            weakness.  At that juncture, Dr. Walsh concluded that 
 
            claimant had reached maximum medical improvement and in 
 
            order to assess claimant's abilities, Dr. Walsh suggested 
 
            that he have a functional assessment.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 10. On March 2, 1989, claimant was given a functional 
 
            capacity evaluation by Mr. Moe, a physical therapist in 
 
            Sioux Falls, South Dakota.  At the conclusion of the 
 
            functional capacity evaluation, Mr. Moe indicated that 
 
            claimant can lift up to 50 pounds and carry objects weighing 
 
            up to 25 pounds frequently.  Additionally, claimant can do 
 
            heavy lifting of 75-80 pounds occasionally and carry 40 
 
            pounds frequently with both hands.  Claimant was also 
 
            capable of performing shoulder level work with his left hand 
 
            only.  Mr. Moe noted that claimant can bend, stoop, squat, 
 
            crawl, climb stairs, crouch and kneel frequently.  He can 
 
            balance continuously.  Claimant is also able to push and 
 
            pull 106.5 pounds frequently.  With his right arm, he can 
 
            occasionally carry 52 pounds.  Claimant can lift as follows:
 
                 r           l       b
 
                 Above Shoulders
 
                     occasionally    22        41.50     63
 
                     frequently *         35        55.5
 
                 Desk/Chair
 
                     occasionally    35        59        108
 
                     frequently 24        *         *
 
                 Chair/Floor
 
                     occasionally    46.5      17.5      58
 
                     frequently            *         *         *
 
            
 
                 Claimant can also use his hands and feet with no 
 
            limitations and he can use his neck at all positions.
 
            
 
                 11. On March 30, Dr. Walsh had an opportunity to review 
 
            the functional capacity assessment that had been performed 
 
            by Mr. Moe.  He agreed with all of the recommendations made 
 
            by Mr. Moe.  He felt that lifting should be limited as 
 
            indicated on the report and he also indicated that claimant 
 
            needs to work in a position where he is allowed to work 
 
            directly in front of him with both upper extremities.  Dr. 
 
            Walsh noted that claimant had a ten percent permanent 
 
            partial impairment of the right upper extremity from the 
 
            previous surgery and injury.  Dr. Walsh increased claimant's 
 
            permanent partial impairment rating to 20 percent of the 
 
            right upper extremity.  He also noted than claimant can do 
 
            medium to heavy work, lifting between 75-80 pounds maximum 
 
            on an occasional basis and with 40 pounds frequently.  He 
 
            noted that lifting should be straight ahead.
 
            
 
                 12. On April 13, 1988, claimant obtained a second 
 
            opinion regarding his right shoulder from Richard Murphy, 
 
            M.D.  This doctor had examined claimant on June 17, 1985 for 
 
            the purpose of giving a disability determination.  Dr. 
 
            Murphy also concluded that claimant had a 20 percent 
 
            functional impairment of the right shoulder.
 
            
 
                 13. In May of 1988, claimant suffered another injury 
 
            involving his head, neck and low back.  Claimant had a 
 
            screen fall on his head.  This injury is not in issue in 
 
            this dispute and will not be considered as part of this 
 
            decision.  However, claimant testified at length during the 
 
            course of the hearing regarding this injury.  Claimant 
 
            indicated that he had received treatment for six months and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that he returned to work in November of 1990.  He noted that 
 
            as a result of this injury, that he had additional 
 
            restrictions in that he can lift less weight and not lift on 
 
            the right side at all.
 
            
 
                 14. Claimant indicated that after the second operation, 
 
            involving his shoulder, he was unable to bid onto jobs that 
 
            had alot of overtime.  Claimant had made this same assertion 
 
            during the course of the hearing conducted on April 14, 
 
            1987.  Claimant indicated that at that point that because he 
 
            could not bid on to the surematic machine job, he had lost 
 
            substantial overtime pay as a result of his inability to own 
 
            that job.  Since the second operation, claimant has not 
 
            tried to do any other jobs except work at his job at 
 
            Wilsons.  He is not doing any part-time work.  However, his 
 
            part-time work had largely subsided as a result of the first 
 
            shoulder injury in 1984.
 
            
 
                 15. Since claimant returned to work in 1987, he has 
 
            been hanging hams on trees and working in front of him.  The 
 
            hams he is hanging now weigh between 20-22 pounds.  Claimant 
 
            is only doing work at waist level now and he is not doing 
 
            any work at eye level or above his shoulder.  Claimant 
 
            indicated that because he could not work on the surematic 
 
            machine he was being denied the opportunity to bid into a 
 
            six bracket job.  Claimant can not go back and do that job 
 
            because he can not work side-to-side, and he is limited to 
 
            waist level positions.  Claimant indicated that any lost 
 
            income that he believes he has suffered is based on an 
 
            estimate of what others around him have made working on 
 
            other jobs with higher brackets.
 
            
 
                 16. Claimant had worked on a six bracket job when he 
 
            was working a forklift in 1989.  However, he can not do this 
 
            job permanently.  Additionally, claimant was working as a 
 
            utility man in 1989.  However, he did this work only a week 
 
            or so per year and he has not done this work very often 
 
            since he was injured in 1984.  Moreover, claimant was bumped 
 
            out of that job by seniority and in any event he decided 
 
            himself that as a result of his arm pain that he could not 
 
            perform the duties required of a utility man job.  Claimant 
 
            estimates that he has had an estimated annual loss of income 
 
            of between $2000-$3000 because he cannot bid onto jobs that 
 
            are worth more and he cannot work overtime on Saturday and 
 
            Sunday.(1)  However, claimant does work overtime in his 
 
            department and works anywhere between 40-50 hours per week, 
 
            40-50 hours when overtime work is available in his 
 
            department.  Additionally, claimant is not restricted from 
 
            working overtime.  He has self selected himself out of these 
 
            jobs.
 
            CONCLUSIONS OF LAW
 
            1.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            (1).  The majority of the jobs in the plant are two bracket 
 
            jobs.  There is not much overtime work available in the 
 
            plant on Saturdays any more and it is unusual if there is 
 
            Sunday overtime work.
 
            
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The first question to resolve is whether the claimant has 
 
            suffered a permanent disability as a result of the second 
 
            injury to his shoulder.  If he has suffered such an injury 
 
            he is entitled to compensation.  The claimant has the burden 
 
            of proving by a preponderance of the evidence that the 
 
            injury of February 5, 1988 is causally related to the 
 
            disability on which he now bases his claim.  Bodish v. 
 
            Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. 
 
            L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  Moreover, the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag, 220 N.W.2d at 907.  Finally, the weight to be given 
 
            to such an opinion is for the finder of fact, and that may 
 
            be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 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, 76 N.W.2d 756, 
 
            760-61 (Iowa 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. Gosek v. Garmer and Stiles 
 
            Co., 158 N.W.2d 731, 737 (Iowa 1968);  Barz v. Oler, 133 
 
            N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service 
 
            Stores, 125 N.W.2d 251, 256 (Iowa 1963); Nicks v. Davenport 
 
            Produce Co., 115 N.W.2d 812, 815 (Iowa 1962);  Yeager v. 
 
            Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 
 
            1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 
 
            595 (Iowa 1960); Almquist v. Shenandoah Nurseries, 254 N.W. 
 
            35,38 (Iowa 1934).  The Supreme Court has also indicated 
 
            that in order for an aggravation of a preexisting condition 
 
            to be compensable, the aggravation should be material.  
 
            Yeager, 112 N.W.2d at 302
 
            From the medical reports of Dr. Walsh and Dr. Murphy, it is 
 
            clear that claimant has suffered a further injury to his 
 
            shoulder that caused an increase in claimant's functional 
 
            impairment.  These doctors both concluded that claimant's 
 
            functional impairment was caused by his work injury.  
 
            Additionally, claimant's ability to lift has been further 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            restricted as a result of the February injury.  At the time 
 
            of the first injury, claimant was restricted to work below 
 
            shoulder level and no heavy lifting.  Claimant is now 
 
            restricted to lifting and carrying objects weighing 25 
 
            pounds frequently and 50 pounds occasionally.  Claimant can 
 
            also do heavy lifting of 75-80 pounds occasionally and carry 
 
            40 pounds frequently with both hands.  Claimant can only 
 
            perform shoulder level work with his left arm.  
 
            Consequently, claimant has demonstrated that he has suffered 
 
            a permanent injury as a result of the February 5, 1988 
 
            injury.
 
            The parties have agreed that if a permanent injury is found, 
 
            the injury should be compensated industrially.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            258 N.W.2d 899, 902 (Iowa 1935) as loss of earning capacity 
 
            and not a mere `functional disability' to be computed in the 
 
            terms of percentages of the total physical and mental 
 
            ability of a normal person.  The essence of an earning 
 
            capacity inquiry then, is not how much has the claimant been 
 
            functionally impaired, but whether that impairment, in 
 
            combination with the claimant's age, education, work 
 
            experience, pre and post injury wages, motivation and 
 
            ability to get a job within her restrictions, if any 
 
            restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            There are no weighting guidelines that indicate how each of 
 
            the factors are to be considered.  There is no equation 
 
            which can be applied and then calculated to determine the 
 
            degree of industrial disability to the body as a whole.  It 
 
            therefore becomes necessary for the deputy or commissioner 
 
            to draw upon prior experience and general and specialized 
 
            knowledge to make a finding with regard to the degree of 
 
            industrial disability.  See, Peterson, 1 Iowa Industrial 
 
            Commissioner Decisions No. 3, at 658; Christening, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 535.
 
            
 
                 In this instance, claimant is 44 years old.  He is at 
 
            the peak of his earning capacity.  This makes claimant's 
 
            loss more severe than it would be for a younger or older 
 
            worker.  Becke v. Turner-Busch, Inc., 34 Biennial Report of 
 
            the Industrial Commissioner 34 (App. 1979); Walton v. B & H 
 
            Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Iowa Ind. Comm'r App. Decision April 28, 
 
            1989).  Claimant's functional impairment has increased by 
 
            10% as a result of the second injury.  Claimant's 
 
            restrictions have increased as a result of the second 
 
            injury.  Claimant has worked in one industry for the 
 
            majority of his working life and retraining has not been 
 
            demonstrated as a realistic alternative.  Claimant returned 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            to the same job he had prior to the injury and is making 
 
            approximately the same hourly wage that he was earning prior 
 
            to the injury.  Wilson has accommodated claimant's 
 
            restriction and has kept him employed.  Claimant has been 
 
            unable to work significant amounts of overtime, but this 
 
            diminution took place prior to claimant's February injury.  
 
            Claimant is working overtime in his department.
 
            Based upon the foregoing factors, all of the factors used to 
 
            determine industrial disability, and employing agency 
 
            expertise, it is determined that claimant sustained a 25 
 
            percent industrial disability for the injury occurring on 
 
            February 5, 1988.
 
            order
 
            THEREFORE, it is ordered:
 
            1.  Wilson shall pay to claimant permanent partial 
 
            disability benefits in the amount of twenty-five percent 
 
            (25%) with payment at the rate of two hundred seventy-seven 
 
            and 72/100 dollars ($277.72) per week commencing on November 
 
            11, 1990 for the injury he suffered to his shoulder.  As 
 
            these benefits have accrued, they shall be paid in a lump 
 
            sum together with statutory interest thereon pursuant to 
 
            Iowa Code section 85.30 (1991).
 
            2.  Wilson is not entitled to any credit since these 
 
            benefits are in excess of the amounts previously paid by 
 
            Wilson for injuries to claimant's shoulder.
 
            3.  The costs of this action shall be assessed to Wilson 
 
            pursuant to rule 343 IAC 4.33.
 
            4.  Wilson shall file claim activity reports as required by 
 
            rule 343 IAC 3.1.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                      ELIZABETH A. NELSON
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City Iowa 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            PO Box 535
 
            Cherokee Iowa 51012
 
            
 
            
 
                 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 6, 1991
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES R. HAYES,             :
 
                                          :
 
                 Claimant,                :      File No. 882072
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant suffered a work injury to his shoulder in 1984.  
 
            Claimant reinjured this shoulder in 1988.  Claimant was 44 
 
            at time of the hearing.  His restrictions had increased from 
 
            the date of the first injury.  He was working at the same 
 
            job with increased wages.  Claimant was performing overtime 
 
            work but he did not think he could do overtime on the 
 
            weekends.  Claimant was awarded 25 percent industrial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALICE DICKERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 882242
 
            FAIRFIELD LINE, INC.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Alice 
 
            Dickerson, claimant, against Fairfield Line, Inc., employer, 
 
            and United States Fidelity and Guaranty Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on April 
 
            13, 1988.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on January 18, 
 
            1991, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the time of the hearing.  The record in this 
 
            case consists of testimony from Alice Dickerson, claimant, 
 
            and Matthew Manning, M.D.; joint exhibits 1-9 and B; and 
 
            defendants' exhibits I-P and Q.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order, the 
 
            parties have stipulated that, in the event of an award of 
 
            weekly benefits, the rate of weekly compensation is $95.38; 
 
            that the fees charged for the medical services or supplies 
 
            rendered are fair and reasonable; that defendants paid 
 
            claimant temporary total disability of $4,384.04 and 
 
            temporary partial disability of $508.95.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            The issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            injury and the disability on which claimant now basis her 
 
            claim; and,
 
            
 
                 3.  Whether claimant is entitled to temporary and 
 
            permanent disability benefits.
 
            
 
                                 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, and makes the following 
 
            findings:
 
            
 
                 Claimant is 32 years old and a high school graduate.  
 
            She is a certified nurse's aide.  Prior to December 1986, 
 
            she worked at various times as a nurse's aide, machine 
 
            operator and mail sorter.
 
            
 
                 The pertinent medical evidence reveals that claimant 
 
            has a long history of orthopedic complaints.  In January 
 
            1984, she fell off a horse and sprained her left knee and 
 
            strained her lumbar spine.  In August 1984, she hurt her 
 
            right shoulder lifting a canner off the stove.  In March 
 
            1985, she fell on a truck while loading wood and sustained 
 
            an acute right shoulder rotator cuff strain and ligamentous 
 
            strain.  In May 1985, she injured her right arm while 
 
            putting in a septic tank and moving dirt.  In December 1986 
 
            she went to work for Fairfield Line as a seamstress sewing 
 
            cuffs to the palms and backs of gloves.  On February 11, 
 
            1987, she sought medical treatment for a strain in her right 
 
            shoulder allegedly due to pulling and jerking on gloves and 
 
            mittens (Exhibit 1).
 
            
 
                 Claimant testified that on April 13, 1988, while 
 
            pulling a glove to turn it, her shoulder "popped."  She 
 
            finished her work and relaxed at home.  While at work the 
 
            next day, her shoulder hurt so severely that she sought 
 
            treatment with Matthew Arthur Manning, M.D.  Right shoulder 
 
            x-rays were taken on April 14, 1988 and were within normal 
 
            limits (Ex. 1, page 29).  Dr. Manning prescribed rest and no 
 
            work or motion.  Her symptoms did not improve and on April 
 
            16, 1988, she had a Cortisone injection and her arm was put 
 
            in a sling.  She began physical therapy three times a week.  
 
            Dr. Manning then referred her to Jerry Jochims, M.D., an 
 
            orthopedic surgeon in Burlington, Iowa.  He examined her on 
 
            May 22, 1988 and gave her a Cortisone injection and 
 
            recommended continued therapy.  He diagnosed bicipital 
 
            tendonitis.  He released her to return to light duty on June 
 
            27, 1988 and full duty on July 11, 1988 (Ex. 3, p. 3).
 
            
 
                 On July 12, 1988, claimant saw Keith W. Riggins, M.D., 
 
            orthopedic surgeon in Fort Madison, Iowa for a second 
 
            opinion.  He recommended an ultrasound and arthrographic 
 
            examination of the right shoulder.  Both examinations were 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            within normal limits.  Dr. Riggins diagnosed right shoulder 
 
            tendonitis (Ex. 2, p. 2) and  on July 25, 1988, released her 
 
            to return to work with restrictions (Ex. 2, p. 2).
 
            
 
                 Claimant returned to work on August 1, 1988.  She 
 
            worked part-time while continuing to participate in physical 
 
            therapy.  At first she pieced together small leather palms 
 
            to gloves but her job changed and she was given heavier 
 
            gloves to sew and her symptoms returned.  Based on her 
 
            complaints, Dr. Manning took her off all work activity on 
 
            October 16, 1988.
 
            
 
                 On November 22, 1988, claimant was evaluated by James 
 
            V. Nepola, M.D., at the University of Iowa Medical Center.  
 
            Dr. Nepola prescribed a TENS unit and nonsteroidal 
 
            medication.  She was advised to use cold packs and a 
 
            shoulder sling.  A follow-up evaluation on January 10, 1989, 
 
            revealed persistent shoulder tenderness.  Right shoulder 
 
            x-rays taken in May 1989, were within normal limits.  
 
            However, because of continued symptoms, Dr. Nepola 
 
            recommended right shoulder surgery.  On July 6, 1989, 
 
            claimant underwent right shoulder acromioplasty and partial 
 
            rotator cuff repair.  Claimant responded positively to this 
 
            procedure and participated in physical therapy for increased 
 
            range of motion and strengthening.  She was released to 
 
            return to work on April 24, 1990 (Ex. 9, p. 15).  On May 16, 
 
            1990, Dr. Nepola reported as follows:
 
            
 
                      She is now ten months status post and has 
 
                 been released to return to work with no repetitive 
 
                 lifting or overhead activity.  She has a 40 pound 
 
                 single lifting and a 5 pound repetitive 
 
                 restriction.  She is to continue using Disalcid 
 
                 1500mg po BID prn.  Mrs. Dickerson has a minimal 
 
                 permanent partial disability, the percentage of 
 
                 her permanent partial disability as related to her 
 
                 right upper extremity is 4% with [sic] translates 
 
                 to 2% of the whole person.
 
            
 
            (Ex. 6, p. 2)
 
            
 
                 The claimant testified that after she was released to 
 
            return to work, she could not get her former job back but 
 
            vigorously pursued employment elsewhere.  She testified that 
 
            she is scheduled for a vocational rehabilitation assessment 
 
            in February 1991.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained an injury on April 13, 1988, which arose out of 
 
            and in the course of her employment with Fairfield Line, 
 
            Inc.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on April 13, 
 
            1988, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The record in this case is uncontroverted that claimant 
 
            sustained an injury to her right rotator cuff on April 13, 
 
            1988.  In deposition testimony, Dr. Manning was asked 
 
            whether, in his opinion, claimant sustained a tear to her 
 
            rotator cuff in the work related complaint of April of 1988.  
 
            In response, he testified, "That would be my professional 
 
            judgment." (Ex. B, p. 84, line 5).
 
            
 
                 Furthermore, Dr. Nepola, testified in his deposition 
 
            dated December 14, 1990, that what he saw and repaired was 
 
            consistent with a use, repetitive motion type of injury 
 
            (Joint Ex. 1, section 9, p. 20, ll. 8-11).
 
            
 
                 While the records clearly demonstrate that claimant had 
 
            shoulder problems prior to April 13, 1988, she was 
 
            asymptomatic from November 4, 1986 until her injury on April 
 
            13, 1988 (Ex. B, p. 87, ll. 6-7).  Claimant has demonstrated 
 
            by a preponderance of the evidence that she sustained an 
 
            injury to her right rotator cuff on April 13, 1988, which 
 
            arose out of and in the course of her employment with 
 
            Fairfield Line.
 
            
 
                 The next issue to be determined is whether there is a 
 
            causal relationship between claimant's injury and the 
 
            disability on which she now bases her claim.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 13, 
 
            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).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 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, 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).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 After reviewing the total evidence in this case, the 
 
            medical evidence and opinions of Dr. Nepola and Dr. Manning 
 
            are uncontroverted that claimant's disability is causally 
 
            related to her injury of April 13, 1988.  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not the only factor causing the claimed disability.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 248, 354 (Iowa 
 
            1980).
 
            
 
                 The next issue presented by the parties for resolution 
 
            is whether claimant is entitled to temporary total, 
 
            temporary partial or healing period benefits and permanent 
 
            partial or total disability benefits.
 
            
 
                 As a general rule, temporary total benefits are paid to 
 
            an injured worker where no permanent disability is 
 
            anticipated; healing period benefits are paid where a 
 
            permanent disability is a result of the work injury; and 
 
            temporary partial disability benefits are paid to an 
 
            employee who is not medically capable of returning to 
 
            employment substantially similar to the employment in which 
 
            he was engaged at the time of the injury, but is able to 
 
            perform other work consistent with his disability.
 
            
 
                 The record establishes that claimant sustained 
 
            permanent disability to her right shoulder as a result of an 
 
            injury on April 13, 1988.  She was off work from April 14, 
 
            1988 through July 31, 1988.  She returned to part-time work 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            on August 1, 1988 and worked until October 16, 1988 when Dr. 
 
            Manning took her off all work activity.  She had surgery on 
 
            July 6, 1989.  On April 24, 1990, she was given an 
 
            impairment rating and released to return to work, with 
 
            restrictions.
 
            
 
                 Pursuant to section 85.34(1), claimant is entitled to 
 
            healing period benefits from April 14, 1988 through July 25, 
 
            1988 when Dr. Riggins released her to return to work and 
 
            from October 17, 1988 until April 24, 1990 when Dr. Nepola 
 
            released her to return to work.
 
            
 
                 The final issue to be determined is the extent of 
 
            claimant's permanent disability.  The evidence clearly 
 
            demonstrates that claimant sustained an injury to her right 
 
            shoulder which required a right acromioplasty and partial 
 
            rotator cuff repair.  It is well settled that when 
 
            disability is found in the shoulder, a body as a whole 
 
            situation exists.  Alm v. Morris Barick Cattle Co., 38 
 
            N.W.2d 161 (1949).
 
            
 
                 Dr. Nepola, claimant's orthopedic surgeon, assessed 
 
            that she has a minimal permanent partial disability.  He 
 
            stated that "the percentage of her permanent partial 
 
            disability as related to her right upper extremity is four 
 
            percent which translates to two percent of the whole 
 
            person."  He gave her a 40 pound single lifting and a five 
 
            pound repetitive lifting restriction.
 
            
 
                 Functional disability 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   8
 
            
 
            
 
            
 
            
 
            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, the claimant is thirty-two (32) 
 
            years old and has a high school education.  Her past work 
 
            was as a seamstress, nurse's aide, machine operator and mail 
 
            sorter.  She testified that she has looked for work as a 
 
            teacher's aide, dishwasher, cook and office clerk.  Dr. 
 
            Nepola, her orthopedic surgeon, released her to return to 
 
            work with no repetitive lifting or overhead activity.  He 
 
            gave her a 40 pound single lifting and a 5 pound repetitive 
 
            lifting restriction.  He stated that she only has minimal 
 
            permanent partial disability and gave her a two percent 
 
            functional impairment (Ex. 6).
 
            
 
                 Claimant is currently unemployed but has been actively 
 
            seeking employment after being released to return to work.  
 
            She testified that she has enrolled in vocational 
 
            rehabilitation.  She indicated that she can perform light 
 
            seamstress work.
 
            
 
                 After carefully considering all of the factors of 
 
            industrial disability, it is determined that claimant has 
 
            sustained a permanent partial disability of five percent for 
 
            industrial purposes entitling her to 25 weeks of permanent 
 
            partial disability benefits at the stipulated rate of $95.38 
 
            per week.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant healing period benefits 
 
            from April 14, 1988 through July 25, 1988 and from October 
 
            17, 1988 through April 24, 1990, when she was released to 
 
            return to work at the stipulated rate of ninety-five and 
 
            38/l00 dollars ($95.38) per week..
 
            
 
                 That defendants pay claimant twenty-five (25) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            of ninety-five and 38/l00 dollars ($95.38) per week.
 
            
 
                 That defendants pay to claimant all medical expenses 
 
            relating to her injury.
 
            
 
                 That defendants pay all medical mileage incurred by 
 
            claimant for treatment of her injury.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants receive a credit for benefits paid 
 
            prior to the hearing.
 
            
 
                 That the costs of this action, are charged to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343 IAC 4.33.
 
            
 
                 That defendants file a claim activity report as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343 IAC 3.l.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. W. McGrath
 
            Attorney at Law
 
            Fourth & Dodge St
 
            P O Box 453
 
            Keosauqua  IA  52565
 
            
 
            Mr. John D. Stonebraker
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108.50; 1402.30; 1802; 1803
 
                      Filed February 22, 1991
 
                      JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALICE DICKERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 882242
 
            FAIRFIELD LINE, INC.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1108.50; 1402.30; 1802; 1803
 
            Claimant had a work related injury and underwent right 
 
            shoulder acromioplasty and partial rotator cuff repair.  Her 
 
            treating surgeon gave her a functional impairment rating of 
 
            2% with no repetitive lifting or overhead activity.
 
            Claimant awarded healing period benefits and 5% permanent 
 
            partial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            RICHARD L. BEAN,               :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 882245
 
            JAMES GARRETT & SONS,          :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            UNITED FIRE & CASUALTY COMPANY,:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            L. Bean, claimant, against James Garrett & Sons, employer 
 
            (hereinafter referred to as Garrett), and United Fire & 
 
            Casualty Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on February 29, l988.  On October 27, l989, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On February 29, 1988, claimant received an injury 
 
            which arose out of and in the course of employment with 
 
            Garrett.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            or healing period benefits.
 
            
 
                 3.  If permanent disability benefits are awarded, they 
 
            shall begin as of June 23, 1988.
 
            
 
                 4.  With reference to the computation of claimant's 
 
            rate of weekly compensation, claimant was married and enti
 
            tled to four exemptions at the time of the injury.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                 6.  Claimant earned from his employment with Garrett a 
 
            total of $5,281.75 during the calendar year preceding the 
 
            work injury.
 
            
 
                                      issues
 
            
 
                 The parties have submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                   I.  Whether there is a causal relationship between 
 
            the work injury and the claimed disability;
 
            
 
                  II.  The extent of claimant's entitlement to weekly 
 
            benefits for disability; and,
 
            
 
                 III.  Claimant's rate of weekly compensation.
 
            
 
                               statement of the facts
 
            
 
                 The following is a brief statement highlighting some of 
 
            the more pertinent evidence presented.  Whether or not 
 
            specifically referred to in this statement, all of the evi
 
            dence received at the hearing was independently reviewed and 
 
            considered in arriving at this decision.  Any conclusions 
 
            about the evidence received contained in the following 
 
            statement shall be viewed as preliminary findings of fact.
 
            
 
                 Claimant testified that he worked for Garrett intermit
 
            tently off and on since 1979 as a painter and sandblaster.  
 
            At the time of the injury, claimant earned $6.00 an hour 
 
            except when working on government contract work.  When he 
 
            was working on government contract work, claimant would be 
 
            paid $10.20 per hour pursuant to Federal law.  Claimant was 
 
            performing government contract work at the time of the 
 
            injury.  Garrett testified that claimant was not a responsi
 
            ble or motivated worker.  If left alone, Garrett said that 
 
            claimant would always slow down or stop working.  Garrett 
 
            also said that claimant was unreliable as to when he would 
 
            show up for work.  Claimant and his wife testified that 
 
            claimant worked for Garrett whenever he could.
 
            
 
                 On February 29, 1988, claimant injured his back from a 
 
            fall from a ladder.  This injury resulted in a fractured 
 
            transverse process at four levels of claimant's spine, L2, 
 
            L3, L4 and L5.  Claimant was hospitalized for three days and 
 
            then underwent follow-up conservative care from the treating 
 
            orthopedic surgeon, Koert Smith, M.D.  Claimant remained off 
 
            work under the care of Dr. Smith until June 24, 1988, at 
 
            which time Dr. Smith felt that claimant reached maximum 
 
            healing and released claimant to return to work with 
 
            restrictions on activity.  Dr. Smith, at that time, rated 
 
            claimant as having a 12 percent permanent partial impairment 
 
            to the body as a whole from the injury.  This impairment 
 
            rating is later increased by Dr. Smith to 19 percent when 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            new AMA Guidelines were published for rating impairments and 
 
            when Dr. Smith found a calculation error in his original 
 
            rating.
 
            
 
                 Claimant is currently restricted by Dr. Smith from 
 
            lifting over 20 pounds with lifting of only 10 pounds on a 
 
            frequent basis.  Dr. Smith recommends no standing over four 
 
            to six hours, no walking over four to six hours, no sitting 
 
            over three to five hours, no driving over five to eight 
 
            hours and only occasional bending.
 
            
 
                 Claimant testified that he could not return to sand
 
            blasting work at Garrett and could not climb ladders or per
 
            form some of the painting.  Garrett and others testified 
 
            that claimant was observed after the injury baling hay, mow
 
            ing the lawn or weeds, hauling wood and hauling steel scrap.  
 
            On one occasion claimant assisted Garrett and one of his 
 
            sons in painting a building roof but claimant only operated 
 
            the paint sprayer at the time.
 
            
 
                 Claimant testified that since the injury, on approxi
 
            mately six occasions, he assisted his landlord in baling hay 
 
            but he had to limit the amount of work he had to do.  He 
 
            said that after loading only a half a load of hay bales, he 
 
            had to quit and drive the tractor due to back pain.  This 
 
            was verified by one of the landlord's employees and a friend 
 
            of claimant.  Claimant testified that he does on occasion 
 
            cut and load wood with the help of his family and friends.  
 
            He also stated that he has assisted his neighbors in cutting 
 
            weeds and lawns and using lawn mowers and gasoline powered 
 
            weed cutters.  He said that he also cuts up steel and sells 
 
            it at a local junk yard for extra money.  He said that he is 
 
            limited in what he can do in all of this type of work and is 
 
            assisted by his family and friends in both wood and steel 
 
            operations.
 
            
 
                 Claimant worked for a company called GBE from November 
 
            1988 through May 1989.  Claimant was terminated from this 
 
            job for absenteeism.  Claimant said that his absenteeism was 
 
            primarily caused by pneumonia unrelated to the work injury 
 
            but he said that he did miss a few days due to back prob
 
            lems.  Claimant's supervisor at GBE testified that claimant 
 
            never complained to him of any back problems and had rated 
 
            claimant's overall appearance, attitude, initiative and 
 
            quality of work at GBE as poor apart from his absenteeism.  
 
            Claimant said that the work at this company involves stand
 
            ing while spraying steel racks which were hanging from an 
 
            overhead rail.  Claimant was not required to lift in this 
 
            job.  Claimant said that pulling the racks on the rail was 
 
            easy.  Claimant said that standing in this job bothered his 
 
            back and he would return home each day in pain requiring his 
 
            wife to give him back rubs.  Claimant said that he did seek 
 
            medical treatment on one occasion for this pain and was 
 
            taken off work for a few days.  There is nothing in GBE's 
 
            records to indicate that claimant had submitted any verifi
 
            cation of an absence from work on the advice of a physician.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was on welfare under the aid to dependent 
 
            father's program prior to and subsequent to his employment 
 
            at Garrett and GBE.  On a couple of occasions before the 
 
            work injury, claimant was involved in a work fair program at 
 
            a local county conservation park in conjunction with his 
 
            receipt of welfare funds.  Claimant's superiors during this 
 
            time stated that claimant was a good mechanic but not moti
 
            vated and had to be constantly supervised.
 
            
 
                 Claimant is 28 years of age and dropped out of school 
 
            in the tenth grade.  Claimant was in special education while 
 
            in school.  Claimant is unable to read or write.  Claimant 
 
            expressed difficulties with pronouncing and understanding 
 
            words.  Claimant cannot multiple or divide numbers.  Apart 
 
            from his intermittent employment at Garrett and his employ
 
            ment at GBE, claimant's only other employment has been a job 
 
            he held for a few months in Oklahoma painting and sandblast
 
            ing oil drilling equipment before his marriage.
 
            
 
                           applicable law and analysis
 
            
 
                 Note:  A credibility finding is necessary to this deci
 
            sion as defendants place claimant's credibility at issue 
 
            during cross-examination as to the nature and extent of the 
 
            injury and disability.  From their demeanor while testify
 
            ing, all witnesses who testified are credible.  To the 
 
            extent that the testimonies are conflicting each is telling 
 
            their own story under their own perspective of events.
 
            
 
                   I.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  
 
            However, in some instances, such as a job transfer caused by 
 
            a work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient along to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                  II.  In the case sub judice, the views of Dr. Smith, 
 
            the primary treating physician, as to permanent partial 
 
            impairment and causal connection of claimant's difficulties 
 
            to the work injury are uncontroverted.  The fact that 
 
            claimant can perform occasional heavy work does not refute 
 
            claimant's permanent partial impairment rating as described 
 
            by Dr. Smith.  It would appear that Dr. Smith's functional 
 
            capacities assessment may not be entirely accurate if 
 
            claimant is able to load one half of a wagon load of 30 to 
 
            40 pound bales of hay before he must rest.
 
            
 
                 III.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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; 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
            (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, l985).
 
            
 
                 Claimant's medical condition before the work injury was 
 
            excellent and he had no functional impairments or ascertain
 
            able disabilities due to physical difficulties.  Claimant 
 
            was able to fully perform physical tasks involving heavy 
 
            lifting, repetitive lifting, bending, stooping, twisting and 
 
            prolonged standing and sitting.  Claimant's treating physi
 
            cian, Dr. Smith, has given claimant a significant permanent 
 
            impairment rating to the body as a whole.  More importantly, 
 
            from an industrial disability standpoint, Dr. Smith has 
 
            severely restricted claimant's work activities.  However, as 
 
            stated above, claimant is able to regularly lift up to 35 
 
            pounds on a regular basis as evident by the hay baling 
 
            activity.  Admittedly, this is for a limited period of time.  
 
            Also, claimant did not lose his job at GBE due to his physi
 
            cal problems, but due to his absenteeism.  Claimant's unre
 
            liable nature and lack of motivation is well documented in 
 
            the record.  His industrial disability award must be lowered 
 
            accordingly.
 
            
 
                 However, apart from claimant's lack of good work 
 
            ethics, claimant remains disabled due to objective changes 
 
            in his spine caused by his fall at work and this disability 
 
            must be fully compensated.  His impairment was rated by a 
 
            board certified orthopedic surgeon using the most current 
 
            rating guides.  Claimant's activity restrictions prevent a 
 
            return to much of the heavy work he has held in the past.  
 
            This is especially devastating to a person who cannot read 
 
            or write or perform average math skills.  Heavy manual labor 
 
            is the type of work claimant is best suited to perform given 
 
            his lack of intellectual skills and work experiences.
 
            
 
                 Claimant is relatively young and his age is a positive 
 
            factor in claimant's rehabilitation.  Claimant's current 
 
            unemployment is due to an adverse local economy and a dis
 
            ability caused by economic factors cannot be compensated 
 
            under the worker's compensation acts.  Webb v. Lovejoy 
 
            Construction Company, II Iowa Industrial Commissioner 
 
            Reports 430 (Appeal Decision 1981).
 
            
 
                 After examination of all the factors, it is found as a 
 
            matter of fact that claimant has suffered a 40 percent loss 
 
            of his earning capacity from his work injury.  Based upon 
 
            such a finding, claimant is entitled as a matter of law to 
 
            200 weeks of permanent partial disability benefits under 
 
            Iowa Code section 85.34(2)(u) which is 30 percent of 500 
 
            weeks, the maximum allowable number of weeks for an injury 
 
            to the body as a whole in that subsection.
 
            
 
                 III.  With reference to rate, claimant argues that we 
 
            are to use the higher per hour wages he received at the time 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            of the injury over a 30 to 40 hour work week.  However, the 
 
            first clause of Iowa Code section 85.36 mandates that we use 
 
            the various subsections in that section to arrive at a rate 
 
            which reflects claimant's customary wages for customary 
 
            hours worked.  Claimant's work was very intermittent.  Use 
 
            of the higher wage rate for a full week on the date of 
 
            injury would not be customary hours worked or a customary 
 
            wage earned.  It is possible to use the 13 weeks average 
 
            under the subsection 6 but again this may not be customary 
 
            given the very nature of claimant's employment.  Defendants 
 
            argue for application of subparagraph 10 and to average the 
 
            past year's income from all sources.  Given the nature of 
 
            claimant's employment, this appears to be the best approach 
 
            to customary earnings.  It appears that claimant does earn 
 
            less than the average full time workers for Garrett.  
 
            Therefore, using subparagraph 10, of Iowa Code section 
 
            85.36, one fifthieth of the stipulated annual earnings of 
 
            $5,281.75 yields a gross weekly rate of $105.64.  Given 
 
            marital status and four exemptions, the commissioner's rate 
 
            booklet for a work injury on February 29, 1988, shows a 
 
            weekly compensation rate of $81.63.
 
            
 
                                 findings of fact
 
            
 
                 1.  All witnesses testifying at hearing are found to be 
 
            credible.
 
            
 
                 2.  The work injury of February 29, l988, is a cause of 
 
            a 19 percent permanent partial impairment to the body as a 
 
            whole and of permanent restrictions upon claimant's physical 
 
            activity consisting of only light to medium work and limited 
 
            bending.
 
            
 
                 3.  The work injury of February 29, l988, and resulting 
 
            permanent partial impairment is a cause of a 40 percent loss 
 
            of earning capacity.  Claimant is 28 years of age but has a 
 
            very limited education.  Claimant is unable to read or write 
 
            or perform average math skills.  Claimant had no ascertain
 
            able loss of earning capacity due to physical problems prior 
 
            to the work injury.  Claimant's physician imposed 
 
            work/activity restrictions prevent a return to heavy manual 
 
            labor.  Claimant is limited in his ability to return to 
 
            heavy manual labor jobs he has held in the past.  Claimant's 
 
            employment in manual labor occupations is the type of occu
 
            pation for which he is best suited given his work history, 
 
            lack of education and intellectual abilities.  Claimant has 
 
            had poor work ethics both before and after the work injury.  
 
            Claimant appears to lack motivation to obtain or remain 
 
            employed.  Claimant's current unemployment is due only in 
 
            part to his work injury.  Adverse economic conditions in the 
 
            area also effect claimant's employability.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has established under law entitlement to 200 
 
            weeks of permanent partial disability benefits and to rate 
 
            of compensation in the amount of $81.63.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of eighty-one and 63/l00 dollars ($81.63) per week from June 
 
            23, 1988.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall received credit against this award for 
 
            benefits previously paid as stipulated in the prehearing 
 
            report.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 5.  Defendants shall file activity reports upon payment 
 
            of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1990.
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Richard J. Bell
 
            Attorney at Law
 
            111 East Washington St
 
            Mt Pleasant  IA  52641-1988
 
            
 
            Mr. John C. Stevens
 
            Attorney at Law
 
            122 East Second St
 
            P O Box 748
 
            Muscatine  IA  52761
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed May 16, 1990
 
                                                    LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            RICHARD L. BEAN,               :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 882245
 
            JAMES GARRETT & SONS,          :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            UNITED FIRE & CASUALTY COMPANY,:
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803 - Extent of permanent partial disability benefits.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
      HAROLD E. TODD,
 
 
 
           Claimant,
 
 
 
      vs.
 
                                                    File No. 882413
 
      TERRA INTERNATIONAL, INC.,
 
                                                     A P P E A L
 
           Employer,
 
                                                   D E C I S I O N
 
      and
 
 
 
      LIBERTY MUTUAL INSURANCE
 
      COMPANY,                     
 
 
 
           Insurance carrier,
 
 
 
 
 
 
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal. The decision of the deputy filed 
 
 July 15, 1991 is affirmed and is adopted as the final agency 
 
 action in this case.
 
 
 
 Defendants shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript.
 
 
 
 Signed and filed this 27th day of August, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                        BYRON K. ORTON
 
                                  INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Jack C. Paige
 
 Attorney at Law
 
 700 Higley Building
 
 P O Box 1968
 
 Cedar Rapids, Iowa  52406
 
 
 
 Mr. Greg A. Egbers
 
 Attorney at Law
 
 600 Union Arcade Building
 
 111 East 3rd Street
 
 Davenport, Iowa  52801
 
 
 
 
 
 
 
 
 
 
 
 
                                                9998
 
                                                Filed August 27, 1992
 
                                                BYRON K. ORTON
 
                               
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 HAROLD E. TODD,
 
 
 
      Claimant,
 
 
 
 vs.
 
                                                  File No. 882413
 
 TERRA INTERNATIONAL, INC.,
 
                                                   A P P E A L
 
      Employer,
 
                                                 D E C I S I O N
 
 and
 
 
 
 LIBERTY MUTUAL INSURANCE
 
 COMPANY,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
      
 
      
 
.9998
 
 
 
     Summary affirmance of deputy's decision filed July 15, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD E. TODD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 882413
 
                                          :
 
            TERRA INTERNATIONAL, INC.,    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            as a result of an injury occurring on April 10, 1988.  The 
 
            case came on for hearing on June 19, 1991 at Burlington, 
 
            Iowa.
 
            
 
                 The record in the proceeding consists of the testimony 
 
            of the claimant, Daniel Anliker, Jerry Morris and Morris 
 
            Tilson and joint exhibits A through M.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are the extent of claimant's 
 
            permanent disability and whether defendants are entitled to 
 
            a section 85.38(2) credit.  It was stipulated that any 
 
            permanent disability benefits would begin on July 14, 1988.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 52-year-old high school graduate who has 
 
            no other formal education, except training by the defendant 
 
            employer.  He has basically been a worker in the chemical 
 
            fertilizer industry since the early 1960's.  He initially 
 
            worked as a laborer and then did sales additionally.
 
            
 
                 Claimant began working for the defendant employer 
 
            around 1975 for approximately seven to eight years as a 
 
            commissioned salesperson.  Initially, he brought no customer 
 
            business to the defendant employer.  He called on farmers 
 
            and sold products like Lasso and Atrazine.  He was strictly 
 
            on commission the first year and then went mainly on salary.  
 
            Claimant became the plant manager with the defendant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            employer in 1981 or 1982.  He says he continued to call on 
 
            farmers and build up a customer basis involving 
 
            approximately 75-100 regular customers.  His duties also 
 
            involved analyzing his clients' needs and reading books and 
 
            pamphlets so as to know how to figure the amounts of 
 
            chemicals or fertilizer needed.
 
            
 
                 As a plant manager, he was responsible for supervising 
 
            four people and, during the busy seasons, up to seven or 
 
            eight people.  He was also responsible for making a profit 
 
            for the defendant employer as well as ordering supplies.
 
            
 
                 Claimant said that on Sunday, April 10, 1988, he was 
 
            alone at the defendant employer's filling anhydrous ammonia 
 
            tank wagons when a valve was opened on a pressure hose.  He 
 
            remembers a flash and tried to find water which kills 
 
            ammonia to wash off the ammonia from his body.  Because of 
 
            the nature of this injury, he does not remember everything 
 
            that happened nor all the events after the accident.  The 
 
            anhydrous exposure caused burns.  Use of his goggles saved 
 
            his eyes from getting severe burns.  Claimant remembers a 
 
            helicopter at the scene and remembers being in the hospital, 
 
            but does not remember getting out nor does he remember the 
 
            first two weeks in the Iowa City hospital.  Claimant said he 
 
            remembers a third week when they took the gauze off his 
 
            eyes.  He was in the hospital approximately one month.
 
            
 
                 Claimant returned to work July 11, 1988 as plant 
 
            manager, the same job he held on the date of his injury.  He 
 
            said he noticed eye and memory problems upon his return.  He 
 
            indicated he has trouble remembering numbers and must write 
 
            more things down.  He said he is now more nervous and his 
 
            skin itches all the time.  Claimant must watch the heat as 
 
            the left side of his body does not sweat.  He indicated he 
 
            gets headaches now which he blames on tension and hot 
 
            weather.  His body is scarred from his neck down to his legs 
 
            and across his back.  Claimant said his endurance for 
 
            physical work is a lot less now than before his accident.  
 
            He does not have a lot of tolerance for heat and cold.  He 
 
            related that, per the doctor's instructions, he cannot take 
 
            off his shirt if he is in the sun because of his grafted 
 
            skin.  Claimant indicated he is unable to sit on a wood 
 
            chair for over 15 minutes because of his sore bottom.  He is 
 
            unable to move his head and neck to the right as far as he 
 
            used to before the injury due to his burns and scarred 
 
            tissue.  He uses a lubricating cream to moisten his new skin 
 
            and graft areas.  He said he does not go into the fields 
 
            since his injury.
 
            
 
                 Claimant related his fear of working around anhydrous 
 
            ammonia.  He has an agreement with his current employer that 
 
            he would not be requested to pump it.  He said he was 
 
            terminated by the defendant employer on August 26, 1989.  He 
 
            filed his workers' compensation petition on August 16, 1989.
 
            
 
                 There has been considerable testimony surrounding the 
 
            reasons for claimant's termination.  Claimant said that the 
 
            plant he was managing had a $135,000 profit in 1984 and that 
 
            he received a bonus.  In 1985, there was a $29,000 loss; in 
 
            1986, a $49,000 gain; and, in 1987, a $7,200 loss.  Claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            contends there was a $60,000 loss at his plant as the result 
 
            of a large individual bankruptcy that occurred in 1987.  
 
            Claimant emphasized that he did not approve credit.  
 
            Claimant indicated he did not know why he was terminated, 
 
            but said he walked into the plant and a Mr. Morris 
 
            terminated him immediately and said he did not want the 
 
            claimant to come back the following Monday to be around the 
 
            employees.
 
            
 
                 Claimant was hired by N.P.K., another chemical 
 
            fertilizer company, on September 15, 1989, which is three 
 
            weeks following his termination from the defendant employer.  
 
            Claimant said he visited with a Mr. Anliker, the owner of 
 
            N.P.K.
 
            
 
                 Claimant said he had his own customer following.  He 
 
            indicated he brought several customers with him to his new 
 
            employment.  Claimant's new salary was $25,000 per year with 
 
            no vehicle provided, but the new employer paid his mileage 
 
            and insurance.  Claimant's former salary with the defendant 
 
            employer was $28,000 with an automobile provided.  The jobs 
 
            are otherwise similar.  Claimant discussed his injury and 
 
            limitations with Mr. Anliker.
 
            
 
                 Claimant said it is stressful at times dealing with 
 
            farmers, but indicated the farmers think he is more grouchy 
 
            and does not get things done as promised now since the 
 
            injury.  Claimant acknowledged his salary at N.P.K. is 
 
            $25,000 and in his first year with the company he received a 
 
            $3,500 bonus.  He hopes to get a bonus the second year.  He 
 
            now works fewer hours and does not work on Sunday.
 
            
 
                 Claimant agreed that the defendant employer did an 
 
            annual employee appraisal and that he received a 62-point 
 
            evaluation in January of 1988, which indicated improvement 
 
            was needed in the profit area.  He admitted it is the plant 
 
            manager's responsibility to make a profit, but not to 
 
            control the company's credit policy.
 
            
 
                 Claimant emphasized he brought $900,000 worth of 
 
            customer business to N.P.K. from the defendant employer on 
 
            his change of employment and said these farmers stayed with 
 
            N.P.K.  He said he has generated only $80,000-$100,000 worth 
 
            of new business, but N.P.K. does not give him any new 
 
            territory.  He indicated the other current salesman is the 
 
            boss's son who gets the other established territory that 
 
            N.P.K. already has.
 
            
 
                 Claimant related he feels good in making 
 
            recommendations to the farmers over his 30 years of 
 
            experience.  He believes they follow those recommendations 
 
            and indicated Mr. Anliker of N.P.K. never changed anything 
 
            he recommended.
 
            
 
                 Claimant's wife testified she has been married to 
 
            claimant for 34 years and, aside from farming, claimant has 
 
            been in the chemical-fertilizer business most of his life.  
 
            She said claimant's amnesia from the accident lasted four 
 
            weeks.  She related her daily visit to the claimant and his 
 
            condition.  She related claimant was not expected to live 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            and was incoherent and unable to talk initially.  He was on 
 
            a respirator and his face was wrapped.
 
            
 
                 Mrs. Todd said that after three months from claimant's 
 
            return to work on July 11, 1988, claimant did not relate the 
 
            difficulty, but said things were not going as well at work.  
 
            She related claimant does not remember things like he did 
 
            before his injury.  She said sometimes he forgets and other 
 
            times he never remembers ever being told a particular item.  
 
            She says claimant spaces out and has nightmares, but these 
 
            have not been recent.
 
            
 
                 Mrs. Todd indicated claimant has had a personality 
 
            change.  He is more defensive and their intimate 
 
            relationship has changed.  She explained claimant could have 
 
            been hired as a salesman by the defendant employer, if they 
 
            wanted to and if he was not able to manage.
 
            
 
                 Daniel Anliker, age 53, the owner and manager of 
 
            N.P.K., bought his business five years ago, but has been in 
 
            the fertilizer business 13 years.  He was the first witness 
 
            to testify and the claimant's attorney requested that 
 
            claimant remove himself from the courtroom while this 
 
            witness testified.  Mr. Anliker has hired various people 
 
            over the years and in hiring, he looks at:  customer 
 
            relations, personality, product knowledge with all chemical 
 
            laws, ability to analyze farmer needs and to make chemical 
 
            recommendations and knowledge of cash flow.  He said he 
 
            hired claimant in September of 1989.  Claimant had stopped 
 
            in to see him after claimant lost his job with the defendant 
 
            employer.  Claimant knew N.P.K. was looking for a person to 
 
            fill a job.  Mr. Anliker knew claimant had a customer basis 
 
            and after talking to some of claimant's former customers, he 
 
            felt some of claimant's customers would follow him.  He said 
 
            claimant has chemical and fertilizer knowledge and an 
 
            ability to work with farmers.  He expected claimant could 
 
            generate new business.  Claimant had very high 
 
            recommendations from his customers.
 
            
 
                 Mr. Anliker evaluated claimant in these last two years 
 
            and is not overly pleased with claimant's record.  He does 
 
            not believe claimant has the knowledge he thought he had at 
 
            the time of hiring as to making recommendations to farmers.
 
            
 
                 Mr. Anliker said claimant has memory problems and has 
 
            to check with him in order to keep chemical recommendations 
 
            straight.  He said that chemical recommendations get 
 
            complicated.  He said claimant is having trouble analyzing a 
 
            farmer's problem and keeping up with the new chemicals.  He 
 
            said that now some of claimant's old customers are looking 
 
            to him for advice rather than to the claimant.
 
            
 
                 Mr. Anliker testified that claimant is not good in 
 
            working with farmers and has not generated substantial new 
 
            business and in fact very little.  He related claimant now 
 
            is not a good salesman.
 
            
 
                 Mr. Anliker evaluated claimant once every year and, as 
 
            a result of his first evaluation, claimant got no raise.  He 
 
            testified that he discussed this with the claimant.  He 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            related he has not seen much improvement since this 
 
            evaluation talk.  Anliker has considered terminating 
 
            claimant and will have another evaluation talk with the 
 
            claimant in one month.  He said he has not decided what he 
 
            is going to do, but indicated it does not look too good.  He 
 
            emphasized that if there is no change in the next several 
 
            months, he will more likely than not fire claimant for lack 
 
            of production and sales.  He indicated it would be a hard 
 
            choice.
 
            
 
                 Mr. Anliker has observed and is aware of claimant's 
 
            physical problems.  He has accepted the fact claimant cannot 
 
            fill anhydrous tanks or pour anhydrous.  This is part of the 
 
            agreement he has with claimant.  He said he does not think 
 
            claimant's health is too good as he coughs and hacks a lot 
 
            and has an endurance problem.  Claimant does not do much 
 
            physical work, but is usually in the office, particularly 
 
            during the busy season.  He said that an anhydrous smell is 
 
            always around the plant and this bothers the claimant.  He 
 
            also is not to be exposed to dust.
 
            
 
                 Mr. Anliker related that claimant does not handle 
 
            stress well and has problems handling customers.  He says he 
 
            has only one other salesman besides the claimant and himself 
 
            who does some sales, that being his son.
 
            
 
                 Anliker said he has had a profit the last five years.  
 
            He related he could not afford three years of losses and 
 
            would get rid of a manager if that would happen.  He said he 
 
            would not wait three years.
 
            
 
                 Jerry Morris, the defendant employer's supervisor who 
 
            oversees several operations in more than one state, 
 
            testified he annually approves claimant's performance.  
 
            Exhibit B, page 10, is claimant's appraisal in January of 
 
            1988 signed by Morris Tilson.  This witness did not do that 
 
            evaluation.
 
            
 
                 Morris evaluated claimant in December of 1988 (exhibit 
 
            B, page 37).  Claimant's overall rating was 62 (exhibit B, 
 
            page 39).  Claimant needed improvement as his performance 
 
            was unsatisfactory and something had to be done.  He 
 
            discussed the bottom line profitability with the claimant.  
 
            He said they looked at the two-year performance.
 
            
 
                 Morris said the defendant employer's plant managed by 
 
            the claimant had a $135,000 profit in 1984, a $29,300 loss 
 
            in 1985, a $49,000 profit in 1986, a $7,200 loss in 1987, a 
 
            $23,600 loss in 1988 and a projected $11,600 loss in 1989, 
 
            which was eventually a $32,000-$35,000 loss.
 
            
 
                 Mr. Morris said that when he supervised his various 
 
            locations in 1989, including the claimant's Winfield 
 
            location, claimant's plant was the lowest.  He emphasized 
 
            that a manager at a location runs his own show and is 
 
            responsible for its operation and profit.  He acknowledged a 
 
            plant manager does not decide who gets credit.  He said he 
 
            was not aware of a $60,000 loss due to a bankruptcy in 1986.
 
            
 
                 Morris Tilson, defendant employer's vice president of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the western division, is responsible for several plants west 
 
            of the Mississippi in several states, including Iowa.  He 
 
            and Jerry Morris collectively decided claimant's 
 
            termination.  He said he was claimant's immediate supervisor 
 
            from September of 1983 to December of 1988 when Mr. Morris 
 
            became claimant's supervisor.  He discussed claimant's 
 
            62-point rating which is unsatisfactory.  He also testified 
 
            to the gain and loss figures of 1984-1989.  His testimony 
 
            was similar to that of Jerry Morris in the analysis and 
 
            discussion of claimant's work as a manager.  He said that 
 
            claimant's firing was the result of a poor bottom line 
 
            profit and loss picture and that it had nothing to do with 
 
            claimant's workers' compensation injury nor anything to do 
 
            with a petition being filed.  He said he did not believe he 
 
            knew of the petition at the time of claimant's firing.  He 
 
            contends that the same criteria used for claimant's 
 
            evaluation are applied to others.
 
            
 
                 He acknowledged that in February of 1987, claimant 
 
            received 113-point evaluation (good/competent performance).
 
            
 
                 Tilson knew of no offer of other employment position 
 
            for the claimant.  He said he assumed there was a discussion 
 
            and he does not know why an offer of employment was not 
 
            made.
 
            
 
                 Douglas Dean Lee, a 37-year-old farmer, testified 
 
            through his deposition on May 23, 1991 (joint exhibit J).  
 
            Lee said he has been farming full time for 17 years.  He 
 
            farms 1,300 acres of row crops and raises hogs.  He has 
 
            known claimant his entire life, has socialized with him and 
 
            sees him 6-7 times per month.
 
            
 
                 Lee knew of claimant's April 10, 1988 anhydrous ammonia 
 
            injury and problems and commented that claimant is not as 
 
            quick mentally as he used to be.  He said that, prior to the 
 
            injury, claimant was an outgoing person and one of the most 
 
            respected fertilizer representatives there was in the area 
 
            and that this was due to claimant's taking care of his 
 
            customers.  He indicated claimant had an excellent knowledge 
 
            of the chemical field and that is why he had a large amount 
 
            of business.
 
            
 
                 Lee praised claimant's sales ability in caring for his 
 
            customers.
 
            
 
                 Lee discussed the changes in claimant since his April 
 
            10, 1988 injury.  These changes were:  not as quick to 
 
            handle, resolve and understand a farmer's problems and a 
 
            tendency to forget a particular problem that might regard a 
 
            chemical application.  He discussed claimant's inability to 
 
            handle stressful situations.  Claimant seems to withdraw.  
 
            Claimant's physical endurance has decreased substantially.  
 
            Lee stated he still buys his chemicals from the claimant.
 
            
 
                 James Thacker, farmer, testified through his deposition 
 
            on May 23, 1991 that he is farming 1,800 acres (joint 
 
            exhibit K).  He has known claimant since the fourth grade.  
 
            He says he has bought chemicals from claimant beginning in 
 
            the 1970's.  He said claimant had an outgoing personality.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            He was aware of claimant's injury of April 10, 1988 on the 
 
            day it happened.  Prior to April 10, 1988, he said that 
 
            claimant was real sharp in chemicals and fertilizer, that he 
 
            knew how much to put on and that he did soil testing.
 
            
 
                 Since the injury, Thacker said claimant has seemed to 
 
            lose interest in everything.  He is no longer outgoing or as 
 
            friendly, hardly ever smiling.  He forgets things and mixed 
 
            up the chemical applications on his two farms.  He has less 
 
            enthusiasm.  Thacker is still buying from the claimant.
 
            
 
                 Mickey M. Johnson, a farmer for 17 years, testified 
 
            through his deposition on May 23, 1991 (joint exhibit L) 
 
            that he farms 250 acres.  He has known claimant his entire 
 
            life.  He said claimant was a very outgoing person before 
 
            his April 1988 injury.  He would see claimant two times per 
 
            month prior to and since his injury.  He said claimant 
 
            handled stress very well prior to April 1988, but not as 
 
            well since.  He said claimant is not as friendly as he used 
 
            to be.  He still deals with the claimant.
 
            
 
                 Nils Roberts Varney, Ph.D., a clinical 
 
            neuropsychologist at the Veterans Administration Medical 
 
            Center in Iowa City, Iowa, testified through his deposition 
 
            on May 24, 1991 (joint exhibit M).  He first saw claimant on 
 
            May 6, 1988 at the invitation of G. P. Kealey, M.D., from 
 
            the University of Iowa.
 
            
 
                 At this time, claimant was frightened and agitated as 
 
            he was having active hallucinations of mice and was thinking 
 
            of committing suicide (joint exhibit M, page 9).  He 
 
            described claimant's delirium condition which lasted 
 
            approximately four weeks.  He said this was a direct result 
 
            of claimant's burns and inhalation of ammonia (joint exhibit 
 
            M, page 11).  The consequence of the inhalation of ammonia 
 
            was the robbing of the brain of oxygen.
 
            
 
                 Dr. Varney said he saw claimant one month later, at 
 
            which time claimant denied some of his previous 
 
            conversations with the doctor.
 
            
 
                 Dr. Varney said that part of his job in such cases is 
 
            to talk to collaterals, like the claimant's wife.  He did so 
 
            and she related the concerns as to claimant, namely, his 
 
            extraordinary irritability, his very out of character 
 
            behavior, his lack of patience, a sense of resentfulness 
 
            over his injury, his development into a rude personality, 
 
            his periods where he spaces out and his memory problems.  
 
            Dr. Varney suggested a full neurological work-up, but 
 
            claimant would not cooperate so he never performed it (joint 
 
            exhibit M, page 20).
 
            
 
                 Claimant and his wife next visited Dr. Varney on August 
 
            20, 1990 at which time he said claimant was still 
 
            experiencing many similar or other problems.  He said 
 
            claimant developed a child-like dependency on Mrs. Todd.
 
            
 
                 Dr. Varney diagnosed claimant as having suffered a 
 
            substantial intellectual loss or a loss of mental efficiency 
 
            (joint exhibit M, page 22).  On his next visit, September 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            18, 1990, the doctor said he was surprised that claimant was 
 
            employed as claimant was not making a lot of sense.  He 
 
            related his conversation with the claimant (joint exhibit M, 
 
            page 23).  This was his last visit with the claimant and his 
 
            diagnosis was:
 
            
 
                 I continued to believe that he had frontal lobe 
 
                 syndrome; that he had very substantially 
 
                 diminished mental capacity, and these were the 
 
                 results of his accident.  He had improved but not 
 
                 very significantally [sic] from the second exam.  
 
                 Obviously he was substantially improved from the 
 
                 first exam.
 
            
 
            (Joint exhibit M, page 25)
 
            
 
                 He causally connected claimant's problems to his April 
 
            10, 1988 injury and opined claimant's neuropsychological 
 
            progress as poor.  He does not expect any improvement from 
 
            this point forward.
 
            
 
                 He said most patients with frontal lobe problems take 
 
            five years to completely ruin their lives (joint exhibit M, 
 
            page 26).
 
            
 
                 Dr. Varney opined, under the guides of the Veterans 
 
            Administration system to which he is accustomed, that 
 
            claimant has a 25-30 percent impairment to his body as a 
 
            whole (joint exhibit M, page 29).  It appears it would be 
 
            more if he used what he described as the confusing AMA 
 
            guides.
 
            
 
                 Dr. Varney said claimant should have a complete 
 
            neurological work-up, but claimant would not go for one.  
 
            Claimant denies anything is wrong with him, which is part of 
 
            claimant's medical problem.  Dr. Varney recommended Marc 
 
            Hines, M.D., a neurologist, to the claimant.
 
            
 
                 Dr. Varney said that, from a neurological standpoint, 
 
            he would like to see a PET scan given.  He emphasized that a 
 
            person does not get any better, but it sure shows up what is 
 
            wrong (joint exhibit M, page 38).  He would also like to see 
 
            the fanciest EEG, preferably a telemetry EEG with 
 
            simultaneous video, to see if there is anything treatably 
 
            wrong.  Also, he would recommend a neurological work-up with 
 
            the usual collection of blood gases, etc., to see if there 
 
            are correctable problems (joint exhibit M, page 39).  Also, 
 
            he would like to see a pulmonary function test, which has 
 
            nothing to do with neurology.
 
            
 
                 G. P. Kealey, M.D., F.A.C.S., Director of the 
 
            University of Iowa Burn Center, wrote on July 7, 1988 that 
 
            claimant was released to return to work, but that he is to 
 
            protect his skin injuries from chemical exposure and from 
 
            ultraviolet radiation and sunlight.  He also indicated that 
 
            claimant may have heat and cold intolerance and therefore 
 
            should restrict his activities, at least initially, to a 
 
            controlled environment so as not to incur this kind of 
 
            stress (joint exhibit B, page 76; joint exhibit C, page 17).
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Claimant's medical records reflect the nature of 
 
            claimant's chemical burns and the skin grafting that was 
 
            needed (joint exhibit C).  Claimant's initial injury was to 
 
            his body-skin, eyes and inhalation system.  Approximately 12 
 
            percent of claimant's total body surface area received the 
 
            chemical burns from the anhydrous ammonia (joint exhibit C, 
 
            pages 13-17).  Claimant was in the burn unit April 10, 1988 
 
            to May 9, 1988.
 
            
 
                 On May 17, 1988, (joint exhibit C, page 19), Dr. Kealey 
 
            wrote in part that claimant has ongoing difficulty with his 
 
            skin which has not stabilized, specifically his burning, 
 
            loss of sensation, disathesia and scar contracture in his 
 
            left neck, left anterior chest and his buttocks.  He also 
 
            has a significant inhalation injury and states he now has 
 
            some shortness of breath.  He indicated a pulmonary function 
 
            test at some time, approximately a year from now, should be 
 
            obtained.  He also thought that claimant may have developed 
 
            signs and symptoms close to post-traumatic stress disorder.  
 
            He asks that the claimant be seen by a neuropsychologist, 
 
            Dr. Varney, here at the University of Iowa institution for 
 
            evaluation and possible support therapy.  He indicated 
 
            approximately two years should be allowed before one sees 
 
            the end result of any residual difficulties to allow things 
 
            to stabilize before assigning any final disability rating.
 
            
 
                 On July 6, 1989, Marc Hines, M.D., of the Ottumwa 
 
            Neurological and Psychiatric Association, P.C., wrote a 
 
            report indicating claimant has a very significant depressive 
 
            disorder related to his burn injury.  Pursuant to history 
 
            given to the doctor by the claimant, claimant was given a 
 
            sleep deprived EEG on July 11, 1989 which was normal (joint 
 
            exhibit E, page 6).  Claimant was also given a 24-hour 
 
            ambulatory EEG around the same time and it showed a normal 
 
            EEG (joint exhibit E, page 7).
 
            
 
                 On October 27, 1989, claimant was given a neurological 
 
            examination by Bakkiam Subbiah, M.D., neurologist, who then 
 
            wrote a report on October 31, 1989 (joint exhibit F, pages 3 
 
            and 4).
 
            
 
                 I would suggest the following:  1.  Obtain a CT of 
 
                 the brain with and without contrast material.  
 
                 This will solve a considerable host of questions, 
 
                 including the presence of unexplained subdural 
 
                 hematoma, hydrocephalus, etc., if the CT is 
 
                 normal.  2.  I do not feel that this patient has 
 
                 any significant neurologic deficit that needs to 
 
                 be attended to at this time.  3.  I do feel that 
 
                 this patient has exhibited symptoms of depression.  
 
                 Once he feels comfortable in tackling this problem 
 
                 and wants some help with this, a competent 
 
                 psychiatrist should evaluate him and treat him for 
 
                 this.  4.  Repeated neuropsychological evaluations 
 
                 in this man is [sic] unlikely to be of any benefit 
 
                 in improving him.  However if this is required as 
 
                 part of a psychiatric evaluation if this should 
 
                 come about in the near future, I would have no 
 
                 objection to this.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 On February 27, 1990, Patrick G. Campbell, M.D., saw 
 
            claimant for a psychiatric examination.  He opined claimant 
 
            had no psychiatric diagnosis.  He wrote:
 
            
 
                 Mr. Todd does not suffer from a post traumatic 
 
                 stress disorder, depression, anxiety disorder, 
 
                 somatiform disorder or any other nervous or mental 
 
                 disorder.  A CT Scan done on February 20, 1990 at 
 
                 Mercy Hospital was reported as normal. . . . In my 
 
                 opinion, the diagnosis is no psychiatric 
 
                 diagnosis.  No psychiatric treatment is 
 
                 recommended.
 
            
 
            (Joint exhibit G, page 1)
 
            
 
                 On June 29, 1990, Dr. Kealey wrote an extensive report 
 
            (joint exhibit C, pages 24-27).  In part, he mentions:  
 
            claimant had a slight restriction of the neck motion to the 
 
            right side because of the scarring on the left side, 
 
            claimant has a dry eye syndrome, claimant needs to continue 
 
            using dry tears, claimant has an 18-39 percent below normal 
 
            mild restricted ventilating defect affecting claimant's 
 
            ability to expand air lungs and claimant has a 20 percent 
 
            below normal alveolar volume, which is the effective service 
 
            for exchanging gases.  He opined that claimant has a 10 
 
            percent permanent partial impairment to his body as a whole 
 
            based on his skin disability and a 10 percent body as a 
 
            whole impairment based on his pulmonary condition.  Although 
 
            claimant will need eye medication the rest of his life, he 
 
            said claimant had no permanent eye-vision impairment.  He 
 
            opined a combined body as a whole impairment of 19 percent.
 
            
 
                 Nils Roberts Varney, Ph.D., a neuropsychologist, wrote 
 
            in part in his report of September 18, 1990, (joint exhibit 
 
            H, pages 1 and 2), that he had been following claimant on a 
 
            regular basis beginning in May of 1988 with his most recent 
 
            contact being August 21, 1990.  Dr. Varney further 
 
            indicated:
 
            
 
                 Charlie's current full scale IQ is 100 (50th 
 
                 percentile).  While this test is his best score to 
 
                 date, it is far below expectations given his 
 
                 occupational background and accomplishments prior 
 
                 to the accident.  Short-term memory scores have 
 
                 remained poor for the most part (with occasional 
 
                 variability).  Most obtained currently were in the 
 
                 15th to 25th percentile range.  Recent memory and 
 
                 temporal orientation were intact.  Word finding 
 
                 was poor.  Dichotic listening was borderline.
 
            
 
            (Joint exhibit H, page 1)
 
            
 
                 The parties have stipulated to an employer-employee 
 
            relationship, that an injury arose out of and in the course 
 
            of claimant's employment on April 10, 1998 and that there is 
 
            a causal connection to a healing period and some permanency.  
 
            The main issue is the extent of claimant's permanent 
 
            disability.
 
            
 
                 The defendants contend that the neurological exam 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            performed by Dr. Hines, namely a sleep-deprived EEG and a 
 
            24-hour ambulatory EEG, both of which turned out normal, 
 
            makes Dr. Varney's impairment ratings suspect.  The 
 
            defendants also refer to the fact that Dr. Varney 
 
            recommended a complete neurological work-up, but that 
 
            claimant would not go for one and therefore that would 
 
            affect Dr. Varney's conclusions.
 
            
 
                 The greater weight of medical evidence indicates that 
 
            claimant has substantial problems and that some of these 
 
            recommended tests, some of which were done and others were 
 
            not, would only try to further determine the cause of 
 
            claimant's continued problems.  They would not cure the 
 
            claimant nor necessarily solve his problems.  They might 
 
            lead to something whereby a recommendation would be made to 
 
            help solve or alleviate to some extent some of claimant's 
 
            problems and yet there is no assurance of that.  If 
 
            defendants are really sincere in their position, they could 
 
            provide additional medical help or tests at their expense to 
 
            see if anything further can be done to help claimant or to 
 
            solve his problems.  Defendants have admitted a work injury 
 
            and causal connection.  Defendants further contend that Dr. 
 
            Varney did not even know the psychological work-up was done 
 
            by Dr. Hines approximately three weeks before Dr. Varney 
 
            gave his deposition and that therefore his testimony is 
 
            biased.  The undersigned does not accept defendants' 
 
            contentions as viable with the medical evidence we have 
 
            herein.
 
            
 
                 There is no evidence that claimant was having the 
 
            psychological problems, difficulty with his work, his 
 
            relationship with the customers, his friends, his wife and 
 
            his attitude in relation to his work prior to April 10, 
 
            1988.
 
            
 
                 Although there is evidence that claimant was having 
 
            problems at work as far as the bottom line profit and loss 
 
            situation at the defendant employer's, the undersigned finds 
 
            it is no coincidence that these things came up at the time 
 
            and in the manner in which they did which resulted in 
 
            claimant being terminated from his job on August 26, 1989, 
 
            effective August 29, 1989 which date was less than two weeks 
 
            after he filed his workers' compensation claim.  There is 
 
            evidence that apparently the defendant employer was having 
 
            some losses at the plant where claimant was the manager, but 
 
            it seems undisputed that claimant did not have control over 
 
            the credit given and there is also testimony that is 
 
            contradictory as to possibly the reason for some of the loss 
 
            years.  Within approximately three weeks of claimant being 
 
            fired by the defendant employer, he obtained another job 
 
            with a chemical fertilizer company.  The subsequent 
 
            employer, through inquiry, obviously saw substantial worth 
 
            in the claimant and it seems undisputed that claimant 
 
            brought a substantial number of customers which was an 
 
            incentive to the new employer, N.P.K.  Claimant indicated he 
 
            brought over $900,000 worth of business.  That was not 
 
            contradicted by any other testimony.  It is surprising with 
 
            the evidence in the case that the defendant employer did not 
 
            continue claimant in their employment, even if as a salesman 
 
            only.  It is this fact that makes claimant's firing suspect 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            in light of the total evidence herein.
 
            
 
                 It is obvious that N.P.K. hired claimant based on his 
 
            record and abilities, but now it is obvious through the 
 
            testimony of the owner-manager of N.P.K., Mr. Anliker, that 
 
            claimant obviously is having difficulties in handling his 
 
            customers, most of which are those which were brought over 
 
            from the defendant employer by the claimant.  These 
 
            difficulties of the claimant are obviously difficulties he 
 
            was not having before his injury on April 10, 1988.
 
            
 
                 Joint exhibit B, pages 107 and 108, is an unsigned 
 
            anonymous letter which does not speak highly of the 
 
            claimant.  It would appear from exhibit B, page 106, that 
 
            the letter was written around September of 1986.  Joint 
 
            exhibit B, pages 109-113, are letters that speak highly of 
 
            the claimant and his abilities as a manager with the 
 
            defendant employer and these are signed by the customers who 
 
            were willing to put their reputations and truthfulness on 
 
            the line by signing the letters, unlike the writer whomever 
 
            it may have been that issued joint exhibit B, pages 107 and 
 
            108.  The writer of that exhibit could very well have been a 
 
            disgruntled customer who did not get a deal he thought he 
 
            might have.  There could be many reasons for the writing of 
 
            that letter.  When one is not willing to put their name and 
 
            reputation and accusations on the line, then there can be 
 
            suspect in the truthfulness in the factual situation of such 
 
            an allegation.  There are 66 persons who are willing to 
 
            testify to claimant's 14 years of dedicated service and 
 
            ability while working for the defendant employer (joint 
 
            exhibit B, pages 109-113).
 
            
 
                 Claimant contends he has a loss of income.  It would 
 
            appear that, with the bonus, he is making a similar income 
 
            to what he was making with the defendant employer, if you 
 
            additionally take into consideration the fact that he is 
 
            making his current money, yet working less hours.  There is 
 
            no evidence, of course, that claimant likes the fewer hours 
 
            and therefore if he worked the same amount of hours it would 
 
            appear that he is making less income now than he was with 
 
            the defendant employer, plus he must rely on a bonus for 
 
            which there is no guarantee.  Also, he does not now have the 
 
            use of a vehicle at the employer's expense.  There is also 
 
            no evidence that he is getting the same or similar 
 
            retirement, 401 or other similar benefits with the current 
 
            employer that he was getting from the defendant employer, as 
 
            there is evidence that, upon his termination, he received a 
 
            lump sum out of his retirement plan.  The undersigned finds 
 
            that, in totality, claimant does have some loss of income 
 
            between his current job and the job he had with the 
 
            defendant employer, but the exact amount of which is not 
 
            clearly defined on the evidence presented herein.
 
            
 
                 Dr. Varney opined that claimant had a body as a whole 
 
            impairment of 25-30 percent based upon neuropsychological 
 
            factors resulting from claimant's April 10, 1988 injury.  
 
            Dr. Kealey opined that claimant had a 10 percent impairment 
 
            to his body as a whole based on claimant's respiratory 
 
            function and a 10 percent disability on the basis of his 
 
            skin dysfunction and opined a combined body as a whole 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            impairment of 19 percent.  The doctor opined that this 
 
            rating is permanent and will not change in the foreseeable 
 
            future.  The undersigned also finds that, where the doctor 
 
            uses the word "disability," he means an impairment as to his 
 
            rating.
 
            
 
                 Claimant is employed.  It is obvious from the current 
 
            employer's testimony that claimant is close to being 
 
            terminated.  The current employer is not satisfied with his 
 
            work and the undersigned finds that those problems which are 
 
            interfering with claimant's ability to perform his current 
 
            job are the results of the affects and consequences of his 
 
            April 10, 1988 injury.  The undersigned cannot speculate as 
 
            to claimant's future employment, i.e., if he is going to be 
 
            terminated.  That will be left to the provisions of the law 
 
            for review-reopening, if necessary.  The undersigned must 
 
            take the circumstances as they exist at the current time.
 
            
 
                 The undersigned believes that the opinions of Dr. 
 
            Kealey and Dr. Varney should be given the most weight as 
 
            they treated claimant over a longer period of time and 
 
            followed him through the times beginning with or close to 
 
            the day of his injury for a substantial period of time.  Dr. 
 
            Kealey referred claimant to Dr. Varney to obtain his expert 
 
            opinion also.  Even though Dr. Hines had certain tests 
 
            performed to which the defendants refer to as being normal 
 
            tests, namely the EEGs, Dr. Hines in his report, joint 
 
            exhibit E, page 3, points out that the patient has a number 
 
            of symptoms consistent with multiple psychosensory symptoms 
 
            seen in post-burn syndrome.  He also refers to the patient's 
 
            significant difficulties with memory.
 
            
 
                 Taking into consideration those items that are 
 
            considered in determining industrial disability, namely but 
 
            not limited to claimant's pre- and post-injury medical 
 
            history, his work experience prior to the injury and after 
 
            his injury, his education, physical and emotional condition, 
 
            his income prior to and after his injury, his transferrable 
 
            skills, the nature, location and severity of his injury, his 
 
            age, his motivation and his impairment, the undersigned 
 
            finds that claimant has incurred a 45 percent industrial 
 
            disability.  The undersigned emphasizes that this is based 
 
            on claimant's current situation and does not take into 
 
            consideration the fact that claimant's current employment, 
 
            because of his work-related injury, is obviously putting his 
 
            current job in jeopardy.  It appears that situation will be 
 
            reviewed within the next year.  This finding is based on the 
 
            fact that claimant has a current job, the wages of which are 
 
            somewhat comparable, but overall less than he was making 
 
            with the defendant employer based again upon the fact that 
 
            he has received a bonus which claimant testified he believes 
 
            he will get again this year.
 
            
 
                 The remaining issue is whether defendants are entitled 
 
            to a credit in the amount of $1,528.98.  This amount is the 
 
            result of defendants paying claimant a weekly amount in 
 
            addition to the $369.99 that claimant was receiving as 
 
            workers' compensation benefits so that claimant's weekly net 
 
            income would be the same as if he were not injured and were 
 
            working on the job.  Claimant contends that this is a 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            voluntary payment and that defendants should not be given 
 
            credit for the same.  Claimant seems to indicate that it is 
 
            a gift or a voluntary payment for which they supposedly are 
 
            obligated or should be obligated since claimant was injured 
 
            on the job.  Claimant tries to distinguish this additional 
 
            weekly payment from the normal voluntary payments made by an 
 
            insurance company.  Claimant contends that this voluntary 
 
            payment made by the defendant employer is different.  The 
 
            parties did agree that this $1,528.98 is a net figure after 
 
            taxes and that, if this credit is allowed, there would be no 
 
            tax consequences detrimental to the claimant.  Claimant 
 
            further contends that this payment was not a mistake, and 
 
            that the defendants intended to have claimant make the same 
 
            net income during healing period as during his employment.
 
            
 
                 This agency fosters the voluntary and quick payment of 
 
            benefits to an injured worker so that life can continue 
 
            under the law as close to the circumstances before the 
 
            injury as after.  It is true that weekly workers' 
 
            compensation benefits never equal the weekly income a person 
 
            is making before the injury, but that is the law.  The 
 
            undersigned congratulates an employer who is willing to ease 
 
            the pain of a work injury which usually brings about 
 
            financial difficulties by extending its hand to its worker 
 
            so that during the pendency of matters the worker does not 
 
            feel the financial crunch as much as he would otherwise 
 
            under the law.  This voluntary payment on behalf of the 
 
            defendants should not result in a penalty to the defendants.  
 
            The mere fact that the defendant employer paid it versus the 
 
            insurance carrier is of no consequence as far as the 
 
            undersigned is concerned.  The undersigned wishes that more 
 
            employers would take this position without fear of being 
 
            penalized in the end.  In this respect, the defendant 
 
            employer went beyond its obligation under the law.  The 
 
            undersigned finds it should not be penalized for such 
 
            action.  The undersigned finds that the defendants shall be 
 
            allowed a credit for this overpayment of $1,528.98 towards 
 
            any further permanent partial disability benefits that are 
 
            awarded to the claimant herein.
 
            
 
                                conclusions of law
 
            If claimant has an impairment to the body as a whole, an 
 
            industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            A finding of impairment to the body as a whole found by a 
 
            medical evaluator does not equate to industrial disability.  
 
            This is so as impairment and disability are not synonymous.  
 
            Degree of industrial disability can in fact be much 
 
            different than the degree of impairment because in the first 
 
            instance reference is to loss of earning capacity and in the 
 
            latter to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant incurred a work-related injury which caused 
 
            claimant to incur a permanent partial impairment to his body 
 
            as a whole based on his skin impairment, a permanent partial 
 
            impairment to his body as a whole based on his pulmonary 
 
            condition and a permanent impairment to his body as a whole 
 
            based on his neuropsychological condition.
 
            
 
                 Claimant has a loss of earning capacity caused by his 
 
            April 10, 1988 work injury.
 
            
 
                 Claimant has a 45 percent industrial disability as a 
 
            result of his April 10, 1988 work injury.
 
            
 
                 Defendants are allowed a credit in the amount of 
 
            $1,528.98 which amount was voluntarily paid by the defendant 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            employer in a weekly supplement to the healing period 
 
            workers' compensation benefits claimant was receiving so 
 
            that claimant would in fact have no loss of net income 
 
            during the healing period.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED THAT:
 
            
 
                 Claimant is entitled to two hundred twenty-five (225) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated weekly rate of three hundred sixty-nine and 
 
            99/100 dollars ($369.99) payable commencing July 14, 1988.
 
            
 
                 Defendants shall pay the accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid all 
 
            healing period already and have additionally paid 
 
            ninety-five (95) weeks of permanent partial disability 
 
            benefits as stipulated by the parties.
 
            
 
                 Defendants shall also be given credit for the sum of 
 
            one thousand five hundred twenty-eight and 98/100 dollars 
 
            ($1,528.98) which represents the sum of voluntary payments 
 
            made by the defendant employer to supplement claimant's 
 
            weekly healing period benefits.
 
            
 
                 Defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 Defendants shall pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file an activity report upon payment 
 
            of this award as required by this agency pursuant to rule 
 
            343 IAC 3.1.
 
                 Signed and filed this _____ day of _____________, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr. Jack C. Paige
 
            Attorney at Law
 
            Suite 700, Higley Building
 
            P.O. Box 1968
 
            Cedar Rapids, Iowa  52406-1968
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1700; 5-1803
 
                           Filed July 15, 1991
 
                           BERNARD J. O'MALLEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD E. TODD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 882413
 
                                          :
 
            TERRA INTERNATIONAL, INC.,    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 45 percent industrial disability.
 
            
 
            1700
 
            Defendants given credit for $1,528.98 that was paid by 
 
            defendant employer on a weekly basis over and above 
 
            claimant's healing period benefits so that claimant's weekly 
 
            net income would be the same as if he were not injured.  
 
            Claimant contended this extra was a gift.  Deputy praised 
 
            defendant employer's action and held defendants should not 
 
            be penalized for such voluntary and praiseworthy action.