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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALBERT F. SEVERINO, SR.,      :
 
                                          :   File Nos. 884892, 925600,
 
                 Claimant,                :             931354, 931355,
 
                                          :             931356
 
            vs.                           :
 
                                          :     A R B I T R A T I O N
 
            CITY OF DES MOINES, IOWA,     :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns five proceedings in arbitration 
 
            brought by Albert F. Severino Sr., against his employer, the 
 
            City of Des Moines, Iowa.
 
            
 
                 File number 884892 deals with an alleged injury of May 
 
            6, 1988 wherein Severino sustained a heart attack.  He seeks 
 
            compensation for healing period, permanent partial 
 
            disability and payment of expenses for an independent 
 
            medical examination under Code section 85.39.  The employer 
 
            disputes that the heart attack is an injury which arose out 
 
            of and in the course of employment and denies all liability.
 
            
 
                 File number 931354 deals with an injury that occurred 
 
            on May 11, 1989 when a truck rolled over and Albert injured 
 
            his left shoulder.  The employer admits the occurrence of 
 
            the injury.  Severino seeks compensation for healing period 
 
            and permanent partial disability.  The employer denies any 
 
            liability for permanent partial disability and asserts that, 
 
            if any exists, it is a scheduled member disability.  It was 
 
            stipulated in the prehearing report that any permanent 
 
            partial disability which is awarded is payable commencing 
 
            May 15, 1989.  Claimant has not made a specific allegation 
 
            of a claim for healing period compensation based upon the 
 
            May 11, 1989 injury.  He apparently claims four-sevenths of 
 
            a week based upon the stipulated commencement date for 
 
            permanent partial disability.
 
            
 
                 File numbers 931355, 931356 and 925600 deal with 
 
            alleged injury dates of August 10, 1989, December 13, 1989 
 
            and May 31, 1989, respectively.  All three files appear to 
 
            deal with the conditions of bilateral Dupuytren's 
 
            contracture, carpal tunnel syndrome and ulnar tunnel 
 
            syndrome.  Claimant seeks compensation for healing period 
 
            and permanent partial disability.  The employer denies that 
 
            the conditions arose out of the employment.  The parties 
 

 
            
 
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            stipulated that, in the event of liability, healing period 
 
            entitlement runs from August 10, 1989 through May 13, 1990 
 
            in file number 925600.  The healing period for other files 
 
            is disputed.  It was stipulated that the commencement date 
 
            for permanent partial disability, in the event of an award, 
 
            is May 14, 1990.
 
            
 
                 The case was heard at Des Moines, Iowa, on June 25, 
 
            1991.  The evidence consists of claimant's exhibits 1 
 
            through 18 (including 9A), defendant's exhibits A through Q 
 
            and testimony from claimant and Michael Peterson.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Albert F. Severino Sr., is a 56-year-old man who has 
 
            been employed by the City of Des Moines since 1974.  During 
 
            the first several years of employment, he worked primarily 
 
            as a street maintenance worker where his duties involved the 
 
            use of his hands operating pneumatic tools, shovels and hand 
 
            tools.  Ever since 1984, he has worked as a truck driver and 
 
            used his hands primarily for steering, shifting and pulling 
 
            levers in the truck (exhibit 18).
 
            
 
                 Prior to commencing employment with the City of Des 
 
            Moines, Albert worked extensively in the building 
 
            maintenance and janitorial service industry.  He has been 
 
            affiliated with three different businesses and has 
 
            supervised as many as 300 employees in those businesses.  
 
            Albert has also been engaged in the restaurant and bar 
 
            business.
 
            
 
                 Albert has a history of adult-onset diabetes mellitus.  
 
            He has had problems with his vocal cords.  In early 1983, he 
 
            was diagnosed as having early Dupuytren's contracture 
 
            (exhibit A, page 2).  On October 16, 1987, he underwent 
 
            outpatient treadmill tests at Mercy Hospital for chest pain.  
 
            The test results were normal (exhibit I, pages 17 and 22).  
 
            Prior to May 6, 1988, Albert was not known to have any 
 
            cardiac condition other than hypertension.
 
            
 
                 On May 6, 1988, Albert reported to work at his normal 
 
            time of approximately 7:00 a.m.  He worked with a crew which 
 
            was pouring tar into cracks in asphalt streets and then 
 
            spreading sand over the tar.  Albert's only function was to 
 
            drive the truck.  The truck was equipped with a manual 
 
            transmission which required that he push in and then release 
 
            the clutch every time the truck was to move.  Whenever he 
 
            moved the truck, he would pull it ahead a distance of 
 
            approximately five feet.  The frequency of moves was once 
 
            every three or four minutes.  Albert testified that the 
 
            activity of pushing the clutch, brake and shifting every 
 
            three of four minutes was strenuous for him.  He also 
 
            testified that the truck emitted a lot of carbon monoxide.
 

 
            
 
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                 After working for approximately two hours in the manner 
 
            described, he began to experience chest pains.  He testified 
 
            at hearing that he had no idea what was going on, thought it 
 
            was possibly heart burn and kept working for approximately 
 
            one-half hour.  He described pain which worsened and went 
 
            down his right arm.  Eventually, he called the foreman, 
 
            drove to the yard, was taken to the city office at the 
 
            armory and was then transported by ambulance to Mercy 
 
            Hospital.
 
            
 
                 At Mercy Hospital, Albert was diagnosed as having 
 
            sustained a myocardial infarction.  His primary treating 
 
            cardiologist was Martin R. Aronow, D.O.  He was discharged 
 
            on May 13, 1988 (exhibit I, page 34).  It is found that the 
 
            history found in exhibit I, page 38 which places the onset 
 
            of Albert's chest pain as when he was in bed is an error.  
 
            The actual onset is found to have occurred while he was 
 
            sitting in the truck as he described at hearing.  Following 
 
            release from the hospital, Albert underwent cardiac 
 
            rehabilitation (exhibit I, pages 117-133).  He was released 
 
            to return to regular work on July 13, 1988 (exhibit C, page 
 
            34).  Work capacity/treadmill testing performed while 
 
            hospitalized showed only a mild impairment of Albert's 
 
            physical work capacity and no significant ST segment change, 
 
            chest pain or significant arrhythmia (exhibit I, page 43).  
 
            A subsequent treadmill test performed April 7, 1989, showed 
 
            Albert to have reached his maximum predicted heart rate 
 
            without chest pain or arrhythmia (exhibit J, page 2).
 
            
 
                 Dr. Aronow, claimant's primary treating cardiologist, 
 
            reported that claimant had experienced a very small 
 
            infarction which produced little damage to his heart.  He 
 
            further stated that Albert's continuing to work after the 
 
            onset of pain made no difference whatsoever in the outcome 
 
            of the cardiac event.  Dr. Aronow specifically stated that 
 
            Albert's work did not cause or aggravate his cardiac 
 
            condition.  The doctor further stated that Albert's 
 
            functional cardiac capacity was no worse after the heart 
 
            attack than it had been prior to its occurrence (exhibit H, 
 
            pages 1-4).
 
            
 
                 Albert was evaluated by Paul From, M.D.  Dr. From found 
 
            Albert to be 20-25 percent permanently impaired as a result 
 
            of his cardiac condition.  He went on to state:
 
            
 
                 In final summary, it is my opinion with a 
 
                 reasonable degree of medical certainty that Mr. 
 
                 Severino's employment on May 6, 1988, and his 
 
                 continued exertion following the onset of chest 
 
                 pain aggravated the myocardial infarction he was 
 
                 then having.  Thereby, the continued exertion 
 
                 lighted up his pre-existing heart condition and 
 
                 has ultimately resulted in his present disability.
 
            
 

 
            
 
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            (Exhibit 5, page 6)
 
            Dr. Aronow is a qualified cardiologist and was also Albert's 
 
            treating physician for the cardiac condition.  The 
 
            assessment of this case which has been made by Dr. Aronow 
 
            regarding causation and impairment is found to be correct 
 
            where it differs from that of Dr. From because Dr. Aronow is 
 
            more familiar with the case, holds the status of a 
 
            cardiologist and his assessment of impairment is strongly 
 
            corroborated by the treadmill tests which were performed 
 
            both prior and subsequent to the heart attack which 
 
            occurred.
 
            It is specifically found that Albert's activity of driving 
 
            the truck on May 6, 1988 was not unusually strenuous in 
 
            comparison to Albert's normal employment activities.  It is 
 
            found that the activity of driving the truck in the manner 
 
            described at hearing provided a level of exertion which is 
 
            no greater than the exertions of normal, nonemployment life 
 
            of Albert or any other typical person.  It is further found 
 
            that Albert's work activities on May 6, 1988 were not a 
 
            substantial factor in producing the myocardial infarction 
 
            which struck him on that date and did not aggravate or 
 
            contribute to any disability which resulted from the heart 
 
            attack.
 
            
 
                 On May 11, 1989, Albert was driving a truck which 
 
            rolled over.  A passenger weighing approximately 300 pounds 
 
            fell onto Albert and pinned him in the truck for a 
 
            considerable amount of time.  Thereafter, Albert had 
 
            continuing pain and discomfort affecting his right shoulder.  
 
            It appears as though Albert did not miss any time from work 
 
            following that incident.  He appears to have worked 80 hours 
 
            during the pay period running from May 1 through May 14, 
 
            1989 and also during the pay period running from May 15 
 
            through May 28, 1989 (exhibit L, pages 8 and 12).  Following 
 
            the shoulder injury, Albert received physical therapy from 
 
            Ina Helweg, R.P.T., (exhibit 7, page 2).  At hearing, he 
 
            complained of continuing pain and discomfort affecting his 
 
            right shoulder and limitation in his ability to perform some 
 
            of his work activities such as loading the truck.  A note 
 
            from the Employee Health Clinic dated June 14, 1989 
 
            indicates that Albert's right shoulder had a full range of 
 
            motion with occasional pain which was related to the May 11, 
 
            1989 injury (exhibit C, page 49).  On September 27, 1989, he 
 
            complained of his shoulder when seeing orthopaedic 
 
            specialist Sinesio Misol, M.D., (exhibit A, page 6).  The 
 
            notes indicate that the doctor felt Albert had bursitis in 
 
            the shoulder and injected the shoulder (exhibit A, page 6).  
 
            A subsequent note dated October 4, 1989, shows the shoulder 
 
            to be less painful than it was previously, with good 
 
            mobility, but with a moderate amount of remaining pain 
 
            (exhibit A, page 7).  Shortly thereafter, Albert's 
 

 
            
 
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            orthopaedic care was transferred to Douglas S. Reagan, M.D., 
 
            and he again made shoulder complaints.  On January 23, 1990, 
 
            in connection with other surgical procedures, Dr. Reagan 
 
            injected the subacromial bursa and manipulated the shoulder 
 
            (exhibit B, page 2; exhibit J, pages 11 and 12).  Dr. Reagan 
 
            has rated Albert as having a three percent permanent 
 
            impairment of his right shoulder (exhibit B, page 7).  No 
 
            particular work activity restrictions appear in the record 
 
            with regard to the shoulder.
 
            
 
                 It is found that the accident that occurred on May 11, 
 
            1989 is a substantial factor in bringing about the bursitis 
 
            condition afflicting Albert's right shoulder.  The three 
 
            percent impairment rating assigned by Dr. Reagan is found to 
 
            be correct.  Albert's description of the discomfort and 
 
            limitations of his ability to use his shoulder are found to 
 
            be credible and correct.  It is further found that the 
 
            physical abnormality in Albert's right shoulder is 
 
            subacromial bursitis as diagnosed by Drs. Reagan and Misol.  
 
            Those structures are not part of the arm.  They are located 
 
            proximal to the arm.  The source of Albert's loss of ability 
 
            to use his arm is found to be located in Albert's body, 
 
            rather than in his arm.  Since Albert earns his living 
 
            through physical activity, the impairment of his shoulder 
 
            does affect his earning capacity.  It limits his ability to 
 
            perform some occupations.  He has not, however, experienced 
 
            any reduction in earnings as a result of the shoulder 
 
            injury.  He is approaching normal retirement age and appears 
 
            to have a relatively secure position with the City of Des 
 
            Moines, though no position of employment can be absolutely 
 
            secure.  It is found that Albert has experienced a five 
 
            percent reduction of his earning capacity as a result of the 
 
            May 11, 1989 shoulder injury.
 
            
 
                 The remaining three files, namely 931355, 931356 and 
 
            925600, all deal with Albert's hands and elbows.  He was 
 
            diagnosed with early Dupuytren's contracture in 1983, but 
 
            the condition was not aggressively treated at that time 
 
            (exhibit A, page 2).  On May 31, 1989, when being checked 
 
            for his right shoulder at the city Employee Health Clinic, 
 
            Albert also made complaints regarding thick callouses on the 
 
            palms of both hands which caused discomfort when gripping 
 
            (exhibit C, page 44).  Albert was administered therapy by 
 
            Ina Helweg, but it did not resolve his symptoms (exhibit D, 
 
            pages 2-4).  Albert was referred to orthopaedic surgeon 
 
            Sinesio Misol, M.D., who diagnosed bilateral Dupuytren's 
 
            contracture (exhibit A, page 3).  On July 11, 1989, Dr. 
 
            Misol reported that claimant's condition can be aggravated 
 
            symptomatically by work, but that work trauma is not the 
 
            cause of the condition (exhibit A, page 3).  In a report 
 
            dated November 20, 1989, D. Straubinger, D.O., referred to 
 
            Albert's Dupuytren's contracture as "industrial hand 
 

 
            
 
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            syndrome."  He stated it is a complex problem which is 
 
            related to both repetitive trauma and diabetes mellitus 
 
            (exhibit C, page 61).
 
            
 
                 After Albert's care for his hands was transferred to 
 
            Dr. Reagan, he was diagnosed as having bilateral carpal 
 
            tunnel syndrome.  On January 23, 1990, Dr. Reagan performed 
 
            surgery which included right carpal tunnel release, right 
 
            ulnar tunnel release, excision of a palmar nodule and 
 
            manipulation and injection of the subacromial bursa of the 
 
            right shoulder (exhibit J, pages 11 and 12; exhibit B, page 
 
            2).  Albert then underwent occupational therapy (exhibit I, 
 
            pages 160-170).  On March 6, 1990, Dr. Reagan performed left 
 
            Dupuytren's contracture release of the long, ring and little 
 
            fingers, carpal tunnel release and ulnar tunnel release 
 
            surgery (exhibit J, pages 15 and 16; exhibit B, page 3).  
 
            After an extended period of recovery, Albert was released to 
 
            return to work on May 14, 1990 (exhibit B, page 6).  Dr. 
 
            Reagan has rated Albert as having a seven percent permanent 
 
            impairment of his right wrist and a six percent permanent 
 
            impairment of his left hand (exhibit B, page 7).  The 
 
            ratings made by Dr. Reagan are found to be correct.
 
            
 
                 In a note dated March 2, 1990, James L. Blessman, M.D., 
 
            reported that claimant's activities at work were 
 
            sufficiently aggravating to make the carpal tunnel syndrome 
 
            a work-related condition, even though there were a 
 
            considerable number of congenital factors (exhibit C, page 
 
            72).  In a subsequent report dated April 27, 1990, Dr. 
 
            Blessman indicated that claimant does have diabetes and that 
 
            it is probably the primary reason why he needed surgery 
 
            (exhibit C, page 75).  It is found that Dr. Blessman is 
 
            correct in his assessment that diabetes is the primary 
 
            reason why the surgery became necessary, but he is also 
 
            found to be correct in his statement that claimant's work 
 
            activities aggravated the condition.
 
            
 
                 It is found that Dr. Misol is correct in that Albert's 
 
            work did not cause the Dupuytren's contracture, but that it 
 
            did aggravate the symptoms and the condition significantly 
 
            to require the surgical treatment which was performed.
 
            
 
                 It is found that Albert first experienced disability as 
 
            a result of his hand disorders on August 10, 1989.  It is 
 
            further found that the carpal tunnel syndrome was present 
 
            and symptomatic on August 10, 1989, even though it had not 
 
            yet been diagnosed.  The conditions in claimant's hands and 
 
            wrists were not disabling until he left work for purposes of 
 
            undergoing surgery on August 10, 1989.
 
            
 
                                conclusions of law
 
            
 
                 In all the claims, Albert Severino has the burden of 
 
            proving, by a preponderance of the evidence, that the injury 
 
            he alleges actually occurred and that it arose out of and in 
 
            the course of employment.  The words "arising out of" refer 
 

 
            
 
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            to the cause or source of the injury.  The words "in the 
 
            course of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 
 
            1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 
 
            287 (Iowa 1971).  In any case, the claimant has the burden 
 
            of proving, by a preponderance of the evidence, that the 
 
            injury is a proximate cause of the disability on which the 
 
            claimant is based.  A cause is proximate if it is a 
 
            substantial factor in bringing about the result; it need not 
 
            be the only cause.  A preponderance of the evidence exists 
 
            when the causal connection is probable rather than merely 
 
            possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
            354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 
 
            N.W.2d 296, 297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960).  However, expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 247 Iowa 
 
            691, 73 N.W.2d 732.  The opinion of experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  
 
            However, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Id. at 907.  
 
            Further, the weight to be given to such an opinion is for 
 
            the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Cent. Tel. Co., 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:
 
            
 
                 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.
 
            
 
                 Injuries which result from cumulative trauma are 
 

 
            
 
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            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).  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.
 
            
 
                 Albert asserts that his heart attack arose out of and 
 
            in the course of his employment.  It is clear that it 
 
            occurred while he was in the course of his employment since 
 
            he was driving the employer's truck at the time of onset.  
 
            The more substantial issue is whether the heart attack arose 
 
            out of or was proximately caused by the employment.  It is 
 
            apparent that Albert had preexisting coronary artery disease 
 
            as demonstrated by the blocked artery found by the 
 
            angiogram.  The legal standard for compensability of a heart 
 
            attack when the heart is previously weakened or diseased has 
 
            been long established.  Sondag v. Ferris Hardware, 220 
 
            N.W.2d 903, 905 (Iowa 1974).  Compensability is allowed when 
 
            the evidence shows an instance of unusually strenuous 
 
            employment exertion or when the employment exertion is 
 
            greater than the exertions of normal, nonemployment life of 
 
            the employee or any other person.  The standard for 
 
            comparison with normal, nonemployment life is quite vague.  
 
            There are those individuals who, in their nonemployment 
 
            lives, run in marathons, remodel their homes, mow lawns, 
 
            shovel snow, play tennis and engage in a number of forms of 
 
            quite substantial exertion.  On the other hand, there are 
 
            those who live in apartments or condominiums and do nothing 
 
            more strenuous than walk on what is essentially level 
 
            ground, at a leisurely pace, between the front door of their 
 
            home and their vehicle, never carrying more than a few 
 
            pounds of weight at any time.  The undersigned is of the 
 
            opinion that the normal, nonemployment life which is the 
 
            standard for comparison includes such levels of physical 
 
            exertion as mowing one's own yard, carrying groceries, 
 
            shoveling snow, playing golf and performing other activities 
 
            which provide a moderate level of physical exertion, albeit 
 
            exertion which is performed at a rate dictated by the 
 

 
            
 
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            individual.  The activities of steering a vehicle, shifting 
 
            gears, pushing and releasing a clutch, stepping on a brake 
 
            pedal and stepping on an accelerator pedal as described by 
 
            Albert in his testimony concerning his activities of May 6, 
 
            1988, are activities which do not provide a level of 
 
            exertion greater than that of normal, nonemployment life.  
 
            Those exertions are not greater than the normal exertions of 
 
            Albert's employment.  It is therefore concluded that Albert 
 
            Severino has failed to prove, by a preponderance of the 
 
            evidence, that his heart attack of May 6, 1988 arose out of 
 
            or was proximately caused by his employment with the City of 
 
            Des Moines, Iowa.
 
            
 
                 Even though a heart attack was not proximately caused 
 
            by the employment, compensation can be awarded if the 
 
            employee continues to work and by doing so, aggravates or 
 
            worsens his cardiac condition.  Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407, 410 (Iowa 1984).  Dr. Aronow has 
 
            opined that such events did not occur in this case.  His 
 
            assessment of the case having been previously found to be 
 
            correct prevents Albert from obtaining any recovery under 
 
            the theory of aggravation by continuing to work.
 
            
 
                 With regard to Albert's shoulder injury, exhibit L 
 
            fails to show that he missed any time from work, other than 
 
            perhaps for a doctor's appointment.  It does not appear as 
 
            though he lost any pay as a result of a doctor's appointment 
 
            since the record shows Albert being paid for 80 hours of 
 
            work during the two-week pay period which includes the date 
 
            of injury.  It likewise shows 80 hours of work during the 
 
            following two-week pay period.  It is therefore concluded 
 
            that he is not entitled to recover any compensation for 
 
            healing period on account of the May 11, 1989 injury to his 
 
            shoulder.
 
            
 
                 The condition of Albert's shoulder which has been found 
 
            to be disabling is a chronic subacromial bursitis.  Since 
 
            that structure is not part of the arm and it is the source 
 
            of the disability, Albert is entitled to have the disability 
 
            evaluated industrially.  Lauhoff Grain v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986).  The fact that the doctor rated the 
 
            impairment as part of the upper extremity is not controlling 
 
            since, in the medical sense, the term "upper extremity" is 
 
            often used to include structures such as the acromion, 
 
            clavicle and scapula.  The term "arm," however, as used in 
 
            the statute, does not extend proximally beyond the proximal 
 
            end of the humerus.
 
            
 
                 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 
 

 
            
 
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            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 It has been previously found that the impairment rating 
 
            made by Dr. Reagan is correct and that Albert's description 
 
            of his residual complaints and limitations regarding his 
 
            shoulder is also correct.  It has previously been found that 
 
            Albert has experienced a five percent reduction in his 
 
            earning capacity as a result of the shoulder injury.  It is 
 
            therefore concluded that Albert Severino has a five percent 
 
            permanent partial disability under the provisions of Code 
 
            section 85.34(2)(u).  This entitles him to recover 25 weeks 
 
            of compensation for permanent partial disability payable at 
 
            the stipulated rate of $263.30 per week commencing May 15, 
 
            1989 as stipulated in the prehearing report.
 
            
 
                 File numbers 931355, 931356 and 925600 all deal with 
 
            problems affecting Albert's hands and upper extremities.  
 
            Albert was seen at the city clinic on May 31, 1989 and was 
 
            referred to Ina Helweg, but the record does not show him to 
 
            have been disabled by the condition of his hands at that 
 
            point.  The record indicates that he continued to work until 
 
            August 10, 1989 when he was off work for surgery.  On 
 
            December 13, 1989, his carpal tunnel syndrome was initially 
 
            diagnosed by Dr. Reagan.  It is clear that Albert was not 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            subjected to any additional trauma after August 10, 1989 and 
 
            he therefore could not have possibly developed carpal tunnel 
 
            syndrome or even aggravated the condition through his 
 
            employment during the period of time intervening between 
 
            August 10 and December 13, 1989.
 
            
 
                 As indicated by the medical evidence, the problems with 
 
            Albert's hands, namely the Dupuytren's contracture, carpal 
 
            tunnel syndrome and ulnar tunnel syndrome, were caused by a 
 
            number of factors.  His diabetes is certainly a primary 
 
            factor.  His work, however, is also determined to have been 
 
            a proximate cause of those conditions.  While his recent 
 
            years of work were as a truck driver, his earlier years of 
 
            employment as a street maintenance worker appear to have 
 
            provided considerable gripping and grasping types of 
 
            activities.  The fact that claimant's diabetes made him 
 
            somewhat predisposed to developing the conditions which 
 
            afflicted him is controlling only if those conditions would 
 
            have arisen absent his work activities.  The reference to 
 
            Dupuytren's contracture as being sometimes referred to as 
 
            "industrial hand syndrome" and the March 2, 1990 report from 
 
            Dr. Blessman show the carpal tunnel syndrome and Dupuytren's 
 
            contracture to be work related.  The April 27, 1990 
 
            statement from Dr. Blessman does not negate the carpal 
 
            tunnel syndrome being work related.  It simply states that 
 
            it is a lesser causative factor than Albert's diabetes.  The 
 
            statement from Dr. Misol which indicates that the 
 
            Dupuytren's contracture does not have its origin in work 
 
            place trauma is construed to simply mean that the condition 
 
            is not initially caused by work trauma, but that it can be 
 
            aggravated by work.  That statement, combined with the 
 
            characterization of the condition as "industrial hand 
 
            syndrome" is determined to be sufficient to establish 
 
            Albert's work for the City of Des Moines as a substantial 
 
            factor and a proximate cause of the need for treatment and 
 
            the residual disability following surgical treatment of the 
 
            Dupuytren's contracture condition.  Albert's employment with 
 
            the City of Des Moines, Iowa, is therefore found and 
 
            concluded to be a proximate cause of the bilateral 
 
            Dupuytren's contracture, carpal tunnel syndrome and ulnar 
 
            tunnel syndrome which afflicted him, either as a direct 
 
            cause or as an aggravation of a preexisting condition or 
 
            preexisting predisposition to develop those conditions.  The 
 
            work is likewise determined to have been a proximate cause 
 
            of the residual disability which afflicts Albert Severino's 
 
            right and left hands.
 
            
 
                 There is no particular incident which is identified in 
 
            the record as causing either the Dupuytren's contracture, 
 
            carpal tunnel syndrome or ulnar tunnel syndrome.  The claim 
 
            is therefore one based upon cumulative trauma.  The injury 
 
            date for injuries based upon cumulative trauma is the date 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            that the employee becomes disabled from working as a result 
 
            of the condition.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).  There is but one injury, that being 
 
            an injury of August 10, 1989.  The alleged injury dates of 
 
            May 31, 1989 and December 13, 1989 are duplicative of the 
 
            actual legally correct injury date of August 10, 1989.
 
            
 
                 This is a case where the onset of the disability was 
 
            due to bilateral symptoms.  It is not a case where one hand 
 
            became symptomatic, recovered and then the other became 
 
            symptomatic.  It is therefore a case in which the permanent 
 
            disability is to be evaluated in accordance with section 
 
            85.34(2)(s).  The healing period is established by 
 
            stipulation made in the prehearing report.  It commences 
 
            August 10, 1989 and runs through May 13, 1990, a span of 39 
 
            and 4/7 weeks.  The permanent partial disability 
 
            compensation is payable commencing May 14, 1990.
 
            
 
                 The amount of permanent partial disability is 
 
            established by the impairment ratings made by Dr. Reagan in 
 
            his August 6, 1990 report.  In that report, Dr. Reagan makes 
 
            reference to a seven percent impairment of the right wrist.  
 
            The term "wrist" is not one used in the workers' 
 
            compensation law or in the Guides to the Evaluation of 
 
            Permanent Impairment issued by the American Medical 
 
            Association.  The doctor also rates claimant as having a 
 
            three percent impairment of the right shoulder and that the 
 
            total impairment of the right upper extremity is ten 
 
            percent.  Accordingly, it appears as though the seven 
 
            percent rating and the three percent rating are ratings of 
 
            the upper extremity according to the terminology used in the 
 
            AMA guides.  Seven percent of the right upper extremity is 
 
            equivalent to a four percent impairment of the whole person.  
 
            The six percent impairment of Albert's left hand is 
 
            equivalent to a three percent impairment of the whole 
 
            person.  Using the combined values chart, the total 
 
            impairment is seven percent of the whole person.  Albert is 
 
            therefore entitled to recover 35 weeks of permanent partial 
 
            disability compensation based upon the August 10, 1989 
 
            injury.
 
            
 
                 The rulings in this case will result in Albert 
 
            receiving permanent partial disability compensation based 
 
            upon the May 11, 1989 injury at the same time as he is 
 
            receiving healing period compensation for the August 10, 
 
            1989 injury.  There is no prohibition against such double 
 
            payments when they are based upon separate injury dates.  It 
 
            is no different than receiving permanent partial disability 
 
            compensation after returning to work following an injury.  
 
            The healing period for the second injury is simply 
 
            replacement for wages which would have been earned if Albert 
 
            had not been re-injured.
 
            
 
                 The prehearing report stipulates that the employer is 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            entitled to credit for 39 and 5/7 weeks of compensation 
 
            which had been paid prior to hearing at the weekly rate of 
 
            $263.30.  The stipulation appears to limit the credit only 
 
            to the alleged May 31, 1989 injury, file number 925600.  It 
 
            has been determined that May 31, 1989 is not actually a date 
 
            of injury and that the actual date of injury for the 
 
            condition referred to in file number 925600 is August 10, 
 
            1989.  Reference to the agency file shows that the dates of 
 
            disability for which those weekly benefits were paid 
 
            commence on August 10, 1989.  It is therefore concluded that 
 
            the employer is entitled to credit for those 39 and 5/7 
 
            weeks of compensation, even though they were paid in file 
 
            number 925600 and the actual benefits are awarded in file 
 
            number 931355 because both files deal with the same injury 
 
            and are therefore duplicative.  An adjustment for the change 
 
            in rate is required.  The stipulated rate from the 
 
            prehearing report is $263.30.  That rate is based upon an 
 
            injury of May 31, 1989.  Since August 10, 1989 has been 
 
            determined to be the correct date of injury, a new benefit 
 
            schedule changes the rate to $263.88.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that in file number 931354, the 
 
            employer pay Albert Severino twenty-five (25) weeks of 
 
            compensation for permanent partial disability payable 
 
            commencing May 14, 1989 at the stipulated rate of two 
 
            hundred sixty-three and 30/100 dollars ($263.30) per week.
 
            
 
                 IT IS FURTHER ORDERED that in file number 931355, the 
 
            employer pay Albert Severino thirty-nine and four-sevenths 
 
            (39 4/7) weeks of compensation for healing period payable 
 
            commencing August 10, 1989 at the rate of two hundred 
 
            sixty-three and 88/100 dollars ($263.88) per week.
 
            
 
                 IT IS FURTHER ORDERED that the employer pay Albert 
 
            Severino thirty-five (35) weeks of compensation for 
 
            permanent partial disability in file number 931355 at the 
 
            stipulated rate of two hundred sixty-three and 88/100 
 
            dollars ($263.88) per week payable commencing May 14, 1990.
 
            
 
                 IT IS FURTHER ORDERED that the employer is entitled to 
 
            credit in the amount of ten thousand four hundred fifty-six 
 
            and 70/100 dollars ($10,456.70) for the stipulated 
 
            thirty-nine and five-sevenths (39 5/7) weeks of compensation 
 
            which were previously paid at the incorrect rate.  The 
 
            remaining approximately sixty (60) weeks which are unpaid 
 
            are all past due and subject to interest pursuant to section 
 
            85.30 of The Code to be computed from the date each weekly 
 
            payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that claimant receives nothing 
 
            under file numbers 884802, 925600 and 931356.
 
            
 
                 IT IS FURTHER ORDERED the costs of each action are 
 
            assessed against defendant pursuant to rule 343 IAC 4.33.
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that defendant shall file claim 
 
            activity reports as requested by the agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert E. McKinney
 
            Attorney at Law
 
            480 6th Street
 
            P.O. Box 209
 
            Waukee, Iowa  50263
 
            
 
            Mr. Steven C. Lussier
 
            Assistant City Attorney
 
            City Hall
 
            400 East First Street
 
            Des Moines, Iowa  50309-1891
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 5-2202; 2209
 
                           Filed September 30, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ALBERT F. SEVERINO, SR., :
 
                      :   File Nos. 884892, 925600,
 
                 Claimant, :             931354, 931355,
 
                      :             931356
 
            vs.       :
 
                      :     A R B I T R A T I O N
 
            CITY OF DES MOINES, IOWA,     :
 
                      :        D E C I S I O N
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-2202
 
            Driving a city work crew truck held to not be a level of 
 
            exertion which exceeded normal, nonemployment life or the 
 
            claimant's usual employment exertions.  The heart attack 
 
            which had its onset while claimant was driving the truck was 
 
            held not to be work related.  Benefits were denied.
 
            
 
            5-1803
 
            Fifty-six-year-old claimant, with a three percent impairment 
 
            rating of the shoulder based upon subacromial bursitis in 
 
            his shoulder, subjective complaints and limitations, but no 
 
            actual medical restrictions and no change in job 
 
            classification or actual earnings, awarded five percent 
 
            permanent partial disability computed industrially.
 
            
 
            2209
 
            Where three injury dates were alleged, all dealing with the 
 
            same bilateral condition, it was determined that there was 
 
            but one actual date of injury, namely the date that 
 
            disability commenced, and that the other two files were 
 
            duplicative.  Benefits paid under one of the duplicative 
 
            files were applied toward the employer's liability which was 
 
            assessed in the file which alleged the correct injury date.  
 
            Claimant awarded healing period and 35 weeks permanent 
 
            partial disability under section 85.34(2)(s).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT L. WILKINSON,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 885129
 
            CEDAR FALLS CONSTRUCTION :
 
            COMPANY, INC., :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            U. S. F. & G., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert  
 
            L. Wilkinson, claimant, against Cedar Falls Construction 
 
            Company, Inc., employer, and U. S. F. & G., insurance 
 
            carrier, as defendants.  The hearing was held on January 16, 
 
            1991 at Waterloo, Iowa.  The case was considered fully 
 
            submitted at the close of the hearing.  The evidence 
 
            consists of joint exhibits 1-3 and defendants' exhibits 
 
            A-BB.  Claimant objected to defendants' exhibits CC and DD, 
 
            which reflect wage information which was sought by claimant 
 
            through formal interrogatories served less than 30 days 
 
            prior to the hearing.  Defendants supplied the information 
 
            to claimant the day of the hearing, and claimant objects to 
 
            the untimeliness of receipt of the information.  Claimant 
 
            also objects to the introduction of the information pursuant 
 
            to Iowa Code section 85.40.  The Code section, in relevant 
 
            part, provides that:
 
            
 
                    The employer shall furnish, upon request of an 
 
                 injured employee or dependent or any legal 
 
                 representative acting for such person, a statement 
 
                 of the earnings, wages, or salary and other 
 
                 matters relating thereto during the year or part 
 
                 of the year that such employee was in the 
 
                 employment of such employer for the year preceding 
 
                 the injury; but not more than one report shall be 
 
                 required on account of any one injury.
 
            
 
                 The undersigned finds that the information provided to 
 
            claimant through the interrogatory is not the type of 
 
            information contemplated under Iowa Code section 85.40.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Therefore, claimant was obligated to make a formal discovery 
 
            request.  Although claimant did so, he served the 
 
            interrogatory less than 30 days prior to the hearing, and 
 
            technically, defendants did not have to provide the 
 
            information to claimant.  Defendants did prepare the answer, 
 
            and the information is received over claimant's objections.
 
            
 
                 The record also consists of testimony from the 
 
            claimant; Roger Marquardt; Richard Fratze; Darryl Sharp; 
 
            Arlet Cassaidy; Dorinda Pounds; and, Cecilia O'Brien.
 
            
 
                 The undersigned would be remiss if she did not mention 
 
            the condition of the exhibits offered by both parties.  
 
            Defendants' exhibits contained duplicates and triplicates of 
 
            many of the medical records, reports and other written 
 
            materials.  The exhibits marked as joint exhibits (although 
 
            claimant referred to them as claimant's exhibits in the 
 
            brief submitted) were unorganized and were not numbered by 
 
            page, as required by the prehearing report, paragraph 9.
 
            
 
                 Additionally, the deposition of claimant's primary 
 
            treating physician was offered and received as evidence.  
 
            None of the exhibits referred to and used in the deposition 
 
            were attached to the copy given to the undersigned, which 
 
            again, made it difficult to develop a logical progression of 
 
            claimant's medical needs and treatment.  And, the copy 
 
            provided to the undersigned was not copied correctly; most, 
 
            if not all of the pages on the right side were placed 
 
            incorrectly in the copy machine, and the wording on the 
 
            right side of the margin is omitted.  Finally, numerous 
 
            pages are missing from the deposition.  The condition of the 
 
            exhibits not only violated the requirements of the 
 
            prehearing report, but also made it difficult to present the 
 
            evidence in an organized and logical manner in this 
 
            arbitration decision.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having considered all of the 
 
            evidence, finds the following facts:
 
            
 
                 At the time of the hearing, claimant was 31 years of 
 
            age.  He is married, and has two children, ages 11 and 9.  
 
            
 
                 Claimant completed the eleventh grade in high school, 
 
            enlisted in the Army, and served for approximately two 
 
            years.  While in the Army, he gained experienced as a track 
 
            and wheel vehicle mechanic. 
 
            
 
                 Claimant's work history involves mostly manual 
 
            labor-intensive jobs, revolving around construction work and 
 
            factory work.  From 1978 to 1988, claimant worked for 
 
            approximately 12 employers.  Although a complete recitation 
 
            of claimant's various jobs and employers is not necessary, a 
 
            few employers, and the specific type of experience claimant 
 
            gained by working for these employees, is warranted.
 
            
 
                 Several years prior to his employment with defendant, 
 
            Cedar Falls Construction Co., Inc., (hereinafter called 
 
            Cedar Falls), claimant worked for a construction company 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            called McCarthy Improvement.  While working for this 
 
            company, claimant acquired skills in work construction 
 
            cement work, specifically learning how to "saw" concrete.  
 
            In the construction field, this is a skilled position and 
 
            qualifies claimant for positions for which an ordinary 
 
            laborer might not qualify.  As such, claimant would be able 
 
            to demand more money than an ordinary laborer.
 
            
 
                 Immediately preceding claimant's employment with 
 
            defendant Cedar Falls, claimant held a position performing 
 
            cement work for Shimp Construction Company in Dunkerton, 
 
            Iowa.  He was earning $6.50 an hour.  He saw an 
 
            advertisement in the paper for an experienced saw person, 
 
            and contacted defendant Cedar Falls.  Claimant filled out an 
 
            application on May 11, 1988 (Defendant Exhibit A, Page 1), 
 
            and began working for defendant Cedar Falls on May 12, 1988.
 
            
 
                 Claimant was hired at a base rate $6.00 per hour; 
 
            however, he began working on a federally-funded project in 
 
            Polk County at a certified pay rate of $9.50 per hour plus 
 
            $1.30 per hour fringe benefit pay.  (Joint Exhibit 3)  
 
            Claimant states he was to work at least 12 hours per day, 7 
 
            days per week for approximately 1 year.
 
            
 
                 At the time, claimant was living in Fairbank, Iowa.  
 
            The position with defendant Cedar Falls required him to work 
 
            in Des Moines, and claimant made arrangements to live with 
 
            his sister in Grinnell, Iowa so that he could accept the 
 
            position.
 
            
 
                 Claimant was injured on the second day of the job.  He 
 
            was performing his duties, which involved sawing the 
 
            concrete on the road so that it could be easily removed and 
 
            prepared for resurfacing.  On May 13, 1988, claimant was 
 
            mixing concrete in a vat.  He brought over the water tank, 
 
            loaded the vats, wrapped up the hose and shut off the water.  
 
            He started to pour the patch of concrete and encountered 
 
            problems with the power screed, the device which levels out 
 
            the cement.  Claimant was told by his boss to grab the end 
 
            of a rope which was attached to the screed.  The cement 
 
            truck was located behind claimant, and as claimant was 
 
            pulling the rope attached to the power screed, he was hit 
 
            from behind by the chute which was attached to the cement 
 
            truck. 
 
            
 
                 Claimant felt pain immediately, went back to his saw 
 
            truck, and finished sawing the patch of concrete he was 
 
            working on prior to helping with the power screed.
 
            
 
                 Later in the day, as claimant was getting ready to 
 
            leave work, his boss on the job site asked him if he had 
 
            been cut by the chute.  Claimant responded that he had not 
 
            been cut but that his back hurt where the chute hit him.  As 
 
            the day progressed, claimant sought treatment from L. 
 
            LeMasters, PA, at the Fairbank Health Clinic in Fairbank, 
 
            Iowa.  Claimant was sent to the hospital in Oelwein, Iowa 
 
            where underwent x-rays, and was referred to David Poe, M.D., 
 
            an orthopedic surgeon.
 
            
 
                 Claimant remained under Dr. Poe's care from May 16, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1988 through January 27, 1989.  (Jt. Ex. 1)  
 
            
 
                 Initially, on May 16, 1988, the assessment of 
 
            claimant's condition was "low back strain with possible 
 
            nerve entrapment secondary to inflammation."  The x-rays 
 
            results of claimant's lumbosacral sign showed "equivocal 
 
            bilateral L5 spondylolysis."  (Def. Ex. B, P. 3)
 
            
 
                 The records due indicate that claimant began physical 
 
            therapy on June 1, 1988.  Claimant also underwent a C.A.T. 
 
            scan of the lumbo-sacral spine.  (Jt. Ex. 1)  However, the 
 
            results of the CT scan were not made available to the 
 
            undersigned.
 
            
 
                 Claimant proceeded to receive care at the orthopedic 
 
            clinic at Mercy Hospital in Oelwein, Iowa.  Unfortunately, 
 
            the earliest clinical consultation report the undersigned 
 
            can find in the exhibits offered and received, is dated July 
 
            18, 1988.  (Jt. Ex. 1)  On examination, Dr. Poe's notes 
 
            indicate these findings:
 
            
 
                  The pain in his midline spine has gone from 100 
 
                 down to 40.  He is walking better but still not 
 
                 able to flex or walk comfortably.  On exam he has 
 
                 mild spasm, he is able to forward flex with his 
 
                 fingertips 6 inches from the floor.  He has 
 
                 negative straight leg raising and a normal 
 
                 neurologic exam.  His x-rays in the past have 
 
                 shown bilateral spondylolysis at L5.  My 
 
                 recommendation is to continue his therapy and 
 
                 rehab, walking and swimming.  He would be fit for 
 
                 light duty only with a weight lifting restriction.  
 
                 He will check with the men at Cedar Falls 
 
                 Construction and see if they would have something 
 
                 lighter for him to do.  I do not believe that he 
 
                 would be able to do his old job at the present 
 
                 time.
 
            
 
                 Claimant continued with physical therapy, and 
 
            apparently had periodic visits with Dr. Poe through July and 
 
            August of 1988.  (Jt. Ex. 1)  The clinic consultation 
 
            report, dated August 29, 1988 provides the following 
 
            information:
 
            
 
                 This gentlemen is 29 and has had recurrence of all 
 
                 of his low back midline symptoms.  When he went 
 
                 back to work his pain went down to 15 and 
 
                 presently he is back up to 100. . . .
 
            
 
                 IMPRESSION: . . . Second diagnosis is bilateral 
 
                 spondylolysis at L5, congenital, with 
 
                 super-imposed soft tissue strain.  Specifically 
 
                 his present symptoms seem to be aggravated by his 
 
                 work and repetitive bending, lifting and stooping.  
 
                 I do not believe that he would be able to lift 250 
 
                 pound barrels or 50 pound bags at the present 
 
                 time.  I believe that he should remain home and to 
 
                 do his therapy Williams exercises, walking, 
 
                 swimming and to continue to make efforts to lose 
 
                 weight.  It may be that this gentlemen is unable 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 to return to his employment and that he might be a 
 
                 candidate for vocational retraining in a job that 
 
                 did not involve such heavy lifting and repetitive 
 
                 bending.  I have asked him to return and see me in 
 
                 2 weeks.
 
            
 
                 Claimant continued with physical therapy, and the first 
 
            progress notes submitted as evidence are dated October 6, 
 
            1988.  (Jt. Ex. 1)
 
            
 
                 Clinic consultation records dated October 3, 1988 
 
            indicate that claimant suffered an "acute myofascial 
 
            sprain-strain."  It was recommended that he continue 
 
            rehabilitation and he was again released to work on a light 
 
            duty status, with no heavy lifting greater than 15 pounds, 
 
            and medical restrictions of no repetitive bending, lifting, 
 
            or stooping.  (Jt. Ex. 1)
 
            
 
                 The medical records indicate that on October 31, 1988, 
 
            claimant was diagnosed as having a chronic sprain and L5 
 
            spondylolysis.  (Jt. Ex. 1 [duplicate copies])  Claimant had 
 
            been put on a weight loss program, and was encouraged to 
 
            continue his weight loss and his walking and swimming and 
 
            fitness exercises, as well as the flexion exercises 
 
            recommended by the physical therapist.  At that point, he 
 
            was released from Dr. Poe's care and was told to see Dr. Poe 
 
            "this winter."
 
            
 
                 Claimant was released to return to full duty on 
 
            December 21, 1988.  (Jt. Ex. 1)
 
            
 
                 On January 27, 1989, Dr. Poe reached the following 
 
            opinion:
 
            
 
                 It is my impression that he has a spondylolysis at 
 
                 L5 with an acute myofascial sprain-strain 
 
                 superimposed and related to his work injury as 
 
                 outlined in all the paperwork.  It is my 
 
                 impression that he has a permanent partial 
 
                 impairment in the range of ten to fifteen percent 
 
                 (10-15%) disability as well.
 
            
 
                 Claimant was also evaluated at the Spine Diagnostic and 
 
            Treatment Center at the University of Iowa Hospitals and 
 
            Clinics in Iowa City, Iowa.  On May 26, 1989, Ted Wernimont, 
 
            M.S.W., rendered the following opinion:
 
            
 
                 You were scheduled to return to the Department of 
 
                 Orthopaedics on May 24, 1989 for re-evaluation.  
 
                 Apparently you were unable to attend this 
 
                 appointment and we want to reinforce with you at 
 
                 this time that we feel that you are now completely 
 
                 healed for workman's [sic] compensation purposes 
 
                 and that you have a 10% body as a whole impairment 
 
                 rating.
 
            
 
                    ....
 
            
 
                 Therefore, at this time, we feel that you are 
 
                 essentially released to return to full-time 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 employment within a 50 pound weight restriction.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be resolved is whether claimant is 
 
            entitled to temporary disability or healing period benefits, 
 
            or permanent partial or permanent total disability benefits.
 
            
 
                 A review of the evidence presented shows that there is 
 
            no genuine conflict as to whether claimant has sustained a 
 
            permanent disability due to the accident on May 12, 1988.  
 
            Dr. Poe, claimant's treating physician, rendered an opinion 
 
            with respect to the permanent nature of claimant's 
 
            disability and gave the claimant a 10-15 percent permanent 
 
            partial disability rating.  Mr. Wernimont, a rehabilitation 
 
            specialist, gave the claimant a 10 percent permanent partial 
 
            disability.  The defendant insurance company previously paid 
 
            claimant 50 weeks of permanent partial disability benefits.  
 
            (Jt. Ex. 3)
 
            
 
                 The real issue in the case revolves around claimant's 
 
            industrial disability.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 At the time of the injury, claimant was almost 27 years 
 
            old.  He had not graduated from high school at that time, 
 
            but in 1990, he received his GED.
 
            
 
                 Claimant's medical condition prior to the injury on May 
 
            12, 1988 is unremarkable.  Although there is some evidence 
 
            that claimant had a preexisting condition of spondylolysis, 
 
            no attempt was made to apportion the amount of functional 
 
            disability attributable to the preexisting condition, and 
 
            that permanency which would be attributable to the injury at 
 
            work.  Additionally, there is no medical evidence which 
 
            indicates that claimant's preexisting condition required any 
 
            type of medical treatment prior to the injury.  Immediately 
 
            after the injury, claimant's medical condition required bed 
 
            rest; medications; physical therapy; and, a lumbar support 
 
            corset.  Presently, claimant's back condition seems to have 
 
            stabilized, and the evidence presented does not seem to 
 
            indicate that he has any continuing problems for which he 
 
            has sought medical treatment.
 
            
 
                 Claimant sustained an injury to his lower back, and 
 
            endured a healing period of only two or three months.  For 
 
            the most part, claimant worked in a light duty capacity 
 
            during that time.  He sustained an injury which did not 
 
            mandate surgical intervention, although he has had a 
 
            permanent loss of function.
 
            
 
                 As discussed earlier, claimant has work experience in 
 
            the form of laborer-type positions, although his main 
 
            interest appears to be in the field of mechanics.  He has 
 
            spoken with several rehabilitation specialists, and has 
 
            completed courses to gain a vocation in gun smithing.  He 
 
            successfully completed a J.T.P.A. program in order to gain 
 
            his GED, and has also expressed an interest in wildlife or 
 
            conservation work.  The claimant displayed potential for 
 
            rehabilitation.
 
            
 
                 On an intellectual, emotional and physical level, 
 
            claimant appeared to be average.  
 
            
 
                 Claimant's earnings prior to and subsequent to the 
 
            injury range between $5.00/hour to $6.50/hour.  His wage of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            $9.50 per hour while working for defendant Cedar Falls 
 
            appears to be one of the highest paying positions claimant 
 
            has held during his working years, although the saw position 
 
            he held with McCarthy Improvements paid more than $9.00 per 
 
            hour.  It is noted that the position he held with McCarthy 
 
            Improvements is similar, if not exactly the same as the 
 
            position he held with defendant Cedar Falls.
 
            
 
                 Although there is some evidence in the record which 
 
            indicates claimant did not work well with the rehabilitation 
 
            specialist enlisted by the defendants, he did express his 
 
            desire to return to work on numerous occasions.
 
            
 
                 Again, claimant has been functionally rated at between 
 
            10 and 15 percent permanent partial disability as a result 
 
            of the injury.  In addition, medical restrictions have been 
 
            placed on his activities, and include no lifting than 
 
            greater than 50 pounds more than 4 times per hour, and 
 
            limited lifting, bending and stooping.
 
            
 
                 After considering all of the factors listed above, the 
 
            undersigned finds that claimant has sustained a 20 percent 
 
            industrial disability.
 
            
 
                 Having found that claimant is entitled to additional 
 
            permanent partial disability payments, it is also found that 
 
            he is entitled to healing period benefits and temporary 
 
            partial disability benefits. 
 
            
 
                 Iowa Code section 85.33(2) provides, in pertinent part:
 
            
 
                 "[T]emporarily, partially disabled" means the 
 
                 condition of an employee for whom it is medically 
 
                 indicated that the employee is not capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, but is able to perform 
 
                 other work consistent with the employee's 
 
                 disability.  "Temporary partial benefits" means 
 
                 benefits payable, in lieu of temporary total 
 
                 disability and healing period benefits, to an 
 
                 employee because of the employee's temporary 
 
                 partial reduction in earning ability as a result 
 
                 of the employee's temporary partial disability. . 
 
                 . .
 
            
 
                 Between May 12, 1988 (injury date) and December 21, 
 
            1988 (full release), claimant returned to work in a light 
 
            duty status periodically.  Neither party offered sufficient 
 
            evidence to enable the undersigned to clearly identify the 
 
            specific time periods in which claimant was working, and the 
 
            time periods claimant was entirely off of work; however, 
 
            claimant is entitled to temporary partial disability on 
 
            those days he worked in a light duty status.  His rate for 
 
            temporary partial disability benefits is calculated under 
 
            Iowa Code section 85.33(4):
 
            
 
                    If an employee is entitled to temporary partial 
 
                 benefits . . . the employer for whom the employee 
 
                 was working at the time of injury shall pay to the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 employee weekly compensation benefits, . . . for 
 
                 and during the period of temporary partial 
 
                 disability.  The temporary partial benefit shall 
 
                 be sixty-six and two-thirds percent of the 
 
                 difference between the employee's weekly earnings 
 
                 at the time of injury . . . and the employee's 
 
                 actual gross weekly income from employment during 
 
                 the period of temporary partial disability.
 
            
 
                 Claimant's workers' compensation rate, for purposes of 
 
            temporary partial disability payments, is determined by the 
 
            following calculation:
 
            
 
                 Gross weekly wages:           $684.00
 
            
 
                 - Wages earned on light duty:  240.00
 
            
 
                                                444.00
 
            
 
                 x 66 2/3                =     $295.97
 
            
 
                 Claimant also makes a claim for further healing period 
 
            benefits for time off of work from December 21, 1988 through 
 
            May 21, 1989.
 
            
 
                 Claimant argues that the appointment with Dr. Poe on 
 
            December 20, 1988 was initiated by the employer, and that he 
 
            was told to ask the doctor for a full release.  He claims 
 
            that the company deliberately misled him so that they could 
 
            fire him and pay him unemployment instead of workers' 
 
            compensation because the unemployment benefits cost the 
 
            company less money.
 
            
 
                 Defendant Cedar Falls counters with the stance that 
 
            claimant was not singled out to be terminated, but was 
 
            merely a victim of a seasonal lay-off.
 
            
 
                 The evidence reflects that Dr. Poe's full release was 
 
            on a "trial basis" only, and he was unsure whether claimant 
 
            could return to full duty.  (Jt. Ex. 1)  Although Dr. Poe's 
 
            deposition was offered and received as an exhibit at lease 
 
            one critical page is missing from the copy received at the 
 
            hearing which makes it virtually impossible to obtain a 
 
            clear understanding of Dr. Poe's recommendations.  (The 
 
            missing pages are unable to even be identified due to the 
 
            poor condition of the copy given to the deputy.)
 
            
 
                 The undersigned is not persuaded by claimant's 
 
            assertions, and he is denied healing period benefits for the 
 
            time off of work from December 21, 1988 to May 21, 1989.  
 
            The evidence submitted shows that claimant was fully 
 
            released by Dr. Poe on December 21, 1988.  It is true that 
 
            claimant was off of work during this time, but his status 
 
            was not that of a recuperating worker.
 
            
 
                 The last issue to be resolved is claimant's workers' 
 
            compensation rate.  
 
            
 
                 Although much time was spent on whether claimant's rate 
 
            should be based on $9.50 per hour or $6.00 per hour, the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            undersigned finds the issue easily addressed.
 
            
 
                 Iowa Code section 85.36 provides, in pertinent part:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was 
 
                 employed,... [emphasis added]
 
            
 
                 Under the statute, if an employee has not worked 13 
 
            weeks prior to the injury, the rate is based on the earnings 
 
            of similar employees in similar occupations.  Iowa Code 
 
            section 85.36(7).
 
            
 
                 Evidence presented at the hearing shows that claimant 
 
            actually earned $9.50/hour as a saw-man for defendant Cedar 
 
            Falls.  He had previously worked as a saw-man for McCarthy 
 
            Improvements and earned $9.96/hour.  (Defendant Ex. A, P. 2)  
 
            No other evidence was submitted to show what other saw-men 
 
            earned under these work circumstances.
 
            
 
                 Claimant testified he was to work for defendant Cedar 
 
            Falls seven days a week, 12 hours per day.  (Tr. Pages 
 
            95-96)  Defendants claim the job required him to work five 
 
            to six days a week for 12 hours.  (Tr. P. 187)
 
            
 
                 The undersigned finds that claimant's rate should be 
 
            based on $9.50/hour, 12 hours a day, six days a week, for 
 
            gross weekly earnings of $684.00.  Therefore, claimant's 
 
            workers' compensation rate is $420.33, based on his marital 
 
            status and exemptions.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is awarded temporary partial disability 
 
            benefits during the days he worked on light duty between May 
 
            12, 1988 and December 21, 1988;
 
            
 
                 That claimant's rate for the purpose of temporary 
 
            partial disability is $295.97;
 
            
 
                 That claimant is awarded healing period benefits for 
 
            those days he was completely off of work between May 12, 
 
            1988 and December 21, 1988;
 
            
 
                 That claimant is awarded permanent partial disability 
 
            benefits for one hundred (100) weeks; beginning December 21, 
 
            1988;
 
            
 
                 That claimant's workers' compensation rate for the 
 
            healing period and permanent partial benefits is four 
 
            hundred twenty and 33/100 dollars ($420.33);
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay accrued benefits in a lump 
 
            sum, and are entitled to credit against the award for weekly 
 
            benefits previously paid;
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30
 
            
 
                 That defendants and claimant shall each pay one-half of 
 
            the entire costs incurred;
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by the agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                
 
            ________________________________
 
                 PATRICIA J. LANTZ
 
                 DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael M Pedersen
 
            Attorney at Law
 
            PO Box 2158
 
            501 Sycamore St Ste 710
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Waterloo Iowa 50704
 
            
 
            Mr David R Mason
 
            Mr Mark W Fransdal
 
            Attorneys at Law
 
            315 Clay St
 
            PO Box 627
 
            Cedar Falls Iowa 50613
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      3003; 1801
 
                      Filed April 30, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT L. WILKINSON,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 885129
 
            CEDAR FALLS CONSTRUCTION :
 
            COMPANY, INC., :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            U. S. F. & G., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            3003
 
            Claimant was hired to work for $6.00/hour.  He actually 
 
            earned $9.50/hour because the construction project which he 
 
            was assigned was federally funded and required certain 
 
            skilled positions to be paid at higher wages.
 
            Claimant's rate determined by the $9.50/hour wage.
 
            
 
            1801
 
            Claimant, 31 years old, GED, laborer positions, sustained a 
 
            10-15 percent functional impairment rating, with a not more 
 
            than 50 pound, 4 times a day lifting restriction.
 
            Claimant awarded 20 percent industrial disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            ROBERT L. WILKINSON,     
 
                                             File No. 885129
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               APPROVAL OF
 
            CEDAR FALLS CONSTRUCTION       
 
            COMPANY, INC.                      SETTLEMENT
 
                      
 
                 Employer,                  UNDER IOWA CODE 
 
                      
 
            and                             SECTION 85.22(1)
 
                      
 
            U. S. F. & G., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                   INTRODUCTION
 
                                           
 
                 This is a proceeding to obtain the approval of a 
 
            settlement pursuant to Iowa Code section 85.22(1) and (3) 
 
            sought by Robert L. Wilkinson, claimant, against Cedar Falls 
 
            Construction Company, Inc., employer and U. S. F. & G., 
 
            insurance carrier, defendants, as a result of an injury 
 
            which occurred on March 3, 1988.  A hearing was held in 
 
            Waterloo, Iowa on April 28, 1992.  Claimant was represented 
 
            by Jay P. Roberts.  Defendants' were represented by Mark W. 
 
            Fransdal.  The record consists of the testimony of James P. 
 
            Moore, insurance adjuster, Robert Wilkinson, claimant, Max 
 
            Kirk, personal injury attorney, and Michael Pedersen, 
 
            claimant's attorney, claimant's exhibit 1, and defendants' 
 
            exhibits F through J.  Both attorneys presented a brief 
 
            description of disputes at the time of the hearing.  The 
 
            deputy ordered a transcript of the hearing.  Both attorneys 
 
            submitted excellent post-hearing briefs.  Claimant then 
 
            filed a supplemental brief.  Defendants' filed a 
 
            supplemental brief and claimant filed a responsive brief.  
 
            
 
                                      ISSUES
 
            
 
                 The parties requested a determination of approval of a 
 
            settlement made by claimant with a third party insurance 
 
            carrier without the consent of defendant employer and 
 
            defendant insurance carrier and a determination of the 
 
            amount of credit to which defendants' are entitled against 
 
            additional amounts of workers' compensation benefits which 
 
            might be paid by defendants' to claimant after the date of 
 
            the settlement.
 
            
 
                 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant was injured on May 3, 1988, when a cement 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            truck struck him while he was screeding concrete at a 
 
            construction site.  A first report of injury was filed and a 
 
            workers' compensation claim was initiated against claimant's 
 
            employer, Cedar Falls Construction Company, Inc. and its 
 
            insurance carrier U. S. F. & G.  Claimant also filed a 
 
            personal injury lawsuit on April 20, 1990, against the third 
 
            party cement  truck owned by  G. N. A. Concrete which was 
 
            insured by Cincinnati Insurance Company.  A workers' 
 
            compensation arbitration hearing was held on January 16, 
 
            1991.  The third party action was scheduled to be tried on 
 
            February 18, 1991.  A few days prior to the trial of the 
 
            third party action claimant and his spouse settled the third 
 
            party action for $90,000.
 
            
 
                 A dispute arose between claimant and defendants as to 
 
            how this settlement was to be allocated between claimant, 
 
            his spouse and his children. 
 
            
 
                 At the time of this hearing on April 28, 1992, claimant 
 
            contended that the $90,000 third party settlement should be 
 
            allocated as follows (1) $45,000 to claimant, (2) $37,000 to 
 
            claimant's spouse and (3) $8,000 to claimant's two children 
 
            [$4,000 to each child].  
 
            
 
                 Defendant employer and its insurance carrier contended 
 
            that $75,000 should be allocated to claimant and that 
 
            $15,000 should be allocated to claimant's spouse and his two 
 
            children.
 
            
 
                 The defendant employer contended that the $75,000 
 
            figure was more realistic and more representative of 
 
            claimant's interest in the $90,000 settlement and also it 
 
            would give defendants a much greater credit against their 
 
            payment of any future workers' compensation benefits after 
 
            the settlement.
 
            
 
                 Defendants had filed a notice of workers' compensation 
 
            subrogation lien in the third party lawsuit on approximately 
 
            December 17, 1990, in the amount of $17,972.40 for various 
 
            benefits which they had paid at that time (Exhibit G, pages 
 
            39 & 40).  The settlement with the third party carrier was 
 
            finalized on February 22, 1991 (Ex. G, pp. 46 & 47).
 
            
 
                  Moore, defendant insurer's claim representative 
 
            testified that this was the amount of defendant's lien at 
 
            the time of the settlement with the third party insurance 
 
            carrier (Transcript page 35).
 
            
 
                 Subsequent to this third party settlement on February 
 
            22, 1991, the deputy industrial commissioner awarded 
 
            claimant additional temporary and permanent disability 
 
            weekly benefits on April 30, 1991, based on the evidence 
 
            submitted in the workers' compensation arbitration hearing 
 
            which was held on January 16, 1991.  Defendants' contend 
 
            that the additional workers' compensation benefits awarded 
 
            in this decision plus accrued interest total an additional 
 
            $49,321.05 to which they are entitled, in addition to the 
 
            $17,972.40.  A large portion of this additional amount is 
 
            due to the fact that defendants' paid claimant benefits at 
 
            the rate of $167 per week whereas the deputy determined that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant was entitled to weekly benefits of $420 per week.  
 
            The deputy also awarded substantial temporary and permanent 
 
            disability benefits that defendants had not previously paid 
 
            to claimant.
 
            
 
                 At the time of this hearing on April 28, 1992, both 
 
            parties believed that defendant employer and insurance 
 
            carrier were entitled to a credit against the proper amount 
 
            which should be allocated to claimant's portion of the 
 
            $90,000 recovery against any future workers' compensation 
 
            benefits which were to be paid by defendants to claimant 
 
            after the settlement.  However, since this hearing on April 
 
            28, 1992, the Supreme Court of Iowa determined on May 13, 
 
            1992, in Fisher v. Keller Industries, Inc. and R. C.'s 
 
            Hardware, Inc., 485 N.W.2d 626 as amended on denial of 
 
            rehearing on June 18, 1992, that Iowa Code section 85.22 
 
            provides alternative methods for recouping benefits that an 
 
            insurer has paid to an injured worker.  
 
            
 
                 The court stated that Iowa Code section 85.22(1) 
 
            applies to the situation where, as here, the claimant brings 
 
            an action against the third party carrier.  Then the 
 
            employer and its carrier may file a lien in the third party 
 
            action to be indemnified out of the recovery of damages to 
 
            the extent of the payments so made, plus interest, less 
 
            attorney's fees and costs.
 
            
 
                 The court pointed out that the other method of third 
 
            party recovery available to the employer and it's workers' 
 
            compensation carrier is subrogation as provided for in Iowa 
 
            Code section 85.22(2).  This section provides that the 
 
            employer, or the employer's workers' compensation insurer 
 
            carrier, may bring its own action against the third party 
 
            defendant, if claimant fails to do so within 90 days after 
 
            being requested to do so.
 
            
 
                 In this case, as in the Fisher case, the action was 
 
            brought by claimant against the third party directly and it 
 
            is therefore an action for indemnity.  The court pointed out 
 
            in Fisher that Iowa Code section 85.22(1) provides that the 
 
            employer or the employer's insurer which paid the 
 
            compensation shall be indemnified out of the recovery of 
 
            damages to the extent of the payment so made, and that it 
 
            makes no provision for a credit to the employer or workers' 
 
            compensation insurance carrier against benefits that will be 
 
            paid in the future.  The court pointed out that this is in 
 
            sharp contrast with Iowa Code section 85.22(2) which 
 
            provides for subrogation and makes a specific allowance for 
 
            future workers' compensation benefits.  
 
            
 
                 The court then stated, "We see nothing in Chapter 85 
 
            directing a credit for the payments not made."  Fisher, page 
 
            630.  The court further stated that the workers' 
 
            compensation insurance carrier's right to indemnification 
 
            extends only to the payments it had made at the time 
 
            claimant secured his recovery under Iowa Code section 
 
            85.21(1).  
 
            
 
                 Therefore, it is determined that U. S. F. & G., in this 
 
            case, is entitled only to indemnification for the payments 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            made at the time of the settlement in the amount of 
 
            $17,972.40.
 
            
 
                 Claimant tendered this amount of money minus the 
 
            prorata share of attorney's fees and costs which resulted in 
 
            a net payment to U. S. F. & G. of $11,856.83 on February 27, 
 
            1991 (Ex. G, p. 62).
 
            
 
                 Therefore, insofar as a credit is concerned, in view of 
 
            the decision in the Fisher case it is immaterial that 
 
            defendants did not consent to the settlement.  Irrespective 
 
            of whether the proper allocation to claimant is $75,000 or 
 
            $45,000 defendants have recouped all that they are entitled 
 
            to recoup pursuant to the Fisher decision.
 
            
 
                 Furthermore, pursuant to the Fisher decision it is 
 
            determined that defendants have no claim at this time to the 
 
            additional $49,321.05 which was ordered to be paid to 
 
            claimant subsequent to the settlement, which was awarded by 
 
            the deputy industrial commissioner in the arbitration 
 
            decision, because the Fisher decision clearly specifies that 
 
            the right to indemnification extends only to the payments 
 
            which the workers' compensation insurance carrier had made 
 
            at the time that the claimant secured his recovery.  It 
 
            might be noted that if the workers' compensation insurance 
 
            carrier had paid claimant at the rate of $420 per week 
 
            instead of $167 per week and if the same carrier had paid 
 
            claimant the temporary and permanent disability benefits 
 
            that the deputy determined that they owed, then their losses 
 
            would have been for the most part eliminated by a prompt and 
 
            more reasonable payment of this claim prior to the 
 
            settlement.
 
            
 
                 The Fisher case overrules and reverses the agency 
 
            precedent of allowing a credit against future benefits 
 
            established in Alexander v. Iowa Public Service, I Iowa 
 
            Industrial Commissioner Report 3, Declaratory Ruling dated 
 
            June 25, 1981, which was reaffirmed by Higgins v. Peterson, 
 
            II Iowa Industrial Commissioner Report 199, Appeal Decision 
 
            January 29, 1982, and nullifies the description of the 
 
            agency precedent described in Lawyer and Higgs, Iowa 
 
            Workers' Compensation, Law and Practice (2nd Ed.) Section 
 
            29-1 on page 289.
 
            
 
                 It is determined that the settlement in the amount of 
 
            $90,000 for claimant's injuries is reasonable (Ex. G, pp. 58 
 
            & 59; Transcript pp. 80-100).  There is no need to allocate 
 
            it since defendant employer and insurance carrier have 
 
            already recovered all of the money to which they are 
 
            entitled from the third party recovery.  It should also be 
 
            noted that defendants' never did object to the $90,000 
 
            settlement.  Their only objection was to the allocation of 
 
            it in order to obtain a bigger credit against future 
 
            benefits.  The Supreme Court has ruled that Iowa Code 
 
            section 85.22(1) makes no provision for a credit against 
 
            future benefits.
 
            
 
                 Wherefore, it is determined that the settlement of 
 
            claimant with the third party carrier in the amount of 
 
            $90,000 is approved.  Defendants' are entitled to be 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            indemnified to the extent of the insurer's payment at the 
 
            time of the settlement in the net amount of $11,856.83.  The 
 
            indemnity payment in this amount is correct and fully 
 
            discharges claimant's liability to the employer and workers' 
 
            compensation carrier from the third party settlement.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That the settlement in the amount of $90,000 with the 
 
            third party carrier is approved.  Iowa Code section 
 
            85.22(3).  No allocation of this amount is required or 
 
            appropriate.
 
            
 
                 That the employer and workers' compensation carrier's 
 
            indemnity claim at the time of the settlement was $17,972.40 
 
            and that after the deduction for a prorata share of 
 
            attorney's fees and costs that defendant's net entitlement 
 
            is $11,856.83 (Ex. G, p. 62) and that this amount was paid 
 
            to and received by defendants prior to hearing (Ex. G, pp. 
 
            63 & 65).  Fisher 485 N.W.2d 626(Iowa 1992).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no further amounts are owed by claimant to 
 
            defendants from the third party settlement recovery.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the transcript are charged to defendants pursuant to rule 
 
            343 IAC 4.33 and Iowa Code sections 86.40 and 86.19(1).
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
 
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette St.
 
            P.O. Box 178
 
            Waterloo, IA  50704
 
            
 
            Mr. Mark W. Fransdal
 
            Mr. David R. Mason
 
            Attorneys at Law
 
            315 Clay Street
 
            P.O. Box 627
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Cedar Falls, IA  50613
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                                           1700, 1704, 3400
 
                                           Filed October 9, 1992
 
                                           Walter R. McManus, Jr.
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROBERT L. WILKINSON,     
 
                                                 File No. 885129
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  APPROVAL OF
 
            CEDAR FALLS CONSTRUCTION       
 
            COMPANY, INC.                         SETTLEMENT
 
                      
 
                 Employer,                      UNDER IOWA CODE 
 
                      
 
            and              SECTION 85.22(1)
 
                      
 
            U. S. F. & G., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1700, 1704, 3400
 
            Claimant was injured on May 3, 1988.  A workers' 
 
            compensation claim was opened and the workers' compensation 
 
            carrier paid $17,972.40 in benefits.  Claimant filed a third 
 
            party personal injury claim in the district court on April 
 
            20, 1990.  Defendant workers' compensation carrier filed a 
 
            notice of lien for $17,972.40 in the third party action on 
 
            December 17, 1990.  An arbitration proceeding was held on 
 
            January 16, 1991.  The third party action was scheduled for 
 
            hearing on February 18, 1991, but was settled for $90,000.00 
 
            just a few days prior to the trial and the settlement was 
 
            finalized on February 22, 1991.  The deputy industrial 
 
            commissioner filed a decision on April 30, 1991, which 
 
            awarded claimant an additional $49,321.05 in temporary and 
 
            permanent disability benefits and accumulated interest.
 
            Claimant did not have the consent of defendants to make the 
 
            settlement nor did he obtain the approval of the industrial 
 
            commissioner prior to settlement as required by section 
 
            85.22(3).
 
 
 
            A dispute arose as to whether $45,000 or $75,000 of the 
 
            $90,000 should be allocated to claimant as distinguished 
 
            from the consortium claims of his wife and children.  The 
 
            parties all believed that defendants would be entitled to a 
 
            credit against the payment of future workers' compensation 
 
            benefits over and above the amounts owed to defendants at 
 
            the time of the settlement up to the portion allocated to 
 
            claimant's portion of the third party settlement.  
 

 
            
 
            
 
            
 
            
 
            
 
            
 
            Essentially the amount of the credit was in dispute and the 
 
            amount of the credit depended on the amount of the $90,000 
 
            settlement that was allocated to claimant's portion of the 
 
            settlement.  Defendants' never did object to the settlement 
 
            in the amount of $90,000.
 
            
 
            This hearing was held on April 28, 1992.
 
            
 
            This decision relies on the recent Iowa Supreme Court 
 
            Decision of Fisher v. Keller Industries and R. C.'s 
 
            Hardware, 485 N.W.2d 626 decided on May 13, 1992, as 
 
            amended on denial of rehearing on June 18, 1992, and holds 
 
            that the defendant employer and defendant workers' 
 
            compensation carrier are only entitled to recover from the 
 
            third party settlement the amount that they had paid out on 
 
            the date of the third party settlement to wit, $17,972.40, 
 
            and that they were not entitled to recover the $49,321.05 
 
            ordered to be paid to claimant pursuant to the award of the 
 
            arbitration deputy on April 30, 1991, after the date of the 
 
            third party settlement.
 
 
 
            The Supreme Court stated in the Fisher Case that Iowa Code 
 
            section 85.22 makes no provision directing a credit for 
 
            payments not made at the time of the third party recovery.  
 
            In other words, Iowa Code section 85.22 makes no provision 
 
            for a credit against future benefits which might be paid by 
 
            the workers' compensation insurance carrier after a recovery 
 
            on a third party claim.
 
            The Fisher case overrules and reverses the agency precedent 
 
            of allowing a credit against future benefits established in 
 
            Alexander v. Iowa Public Service, I Iowa Industrial 
 
            Commissioner Report 3, Declaratory Ruling dated June 25, 
 
            1981, which was reaffirmed by Higgins v. Peterson, II Iowa 
 
            Industrial Commissioner Report 199, Appeal Decision January 
 
            29, 1982, and nullifies the description of the agency 
 
            precedent described in Lawyer and Higgs, Iowa Workers 
 
            Compensation. Law and Practice (2nd Ed.) Section 29-1 on 
 
            page 289.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         WILLIAM WADSWORTH,              :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :       File No. 885130
 
         COPE CONSTRUCTION,              :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         UNITED FIRE & CASUALTY,         :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
              Defendants state the following issues on appeal:
 
         
 
               I.  Did the deputy industrial commissioner err in          
 
                 ruling that claimant sustained a 20.5% permanent         
 
                 partial impairment of the right leg?
 
         
 
              II.  Did the deputy industrial commissioner err in            
 
              awarding 45.1 weeks of permanent partial                 
 
              disability benefits?
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed September 24, 1993 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.
 
         
 
              Claimant has been a carpenter for 27 years.  On May 16, 
 
         1988, he fell 12 feet from scaffolding while on the job landing 
 
         on his right foot.  Claimant suffered an extensive fracture of 
 
         the foot and ankle requiring three surgeries to insert a pin, 
 
         remove the pin and remove a nerve ending.  Today claimant 
 
         complains of inability to walk on uneven, muddy terrain and to 
 
         make twisting movements with his foot.  Flexion and extension are 
 
         not problems but he cannot roll his foot right or left.  He also 
 
         complains of numbness in the ankle and foot.  He has been on 
 
         inflammatory medication for four years.  He still is experiencing 
 
         pain in the ankle and foot today.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
              *****The injury is not limited to the foot because the ankle 
 
         is involved and there was permanent damage to the nural nerve 
 
         above the foot.  This finding is based upon the description of 
 
         the injury by claimant's treating physician Martin Roach, M.D., 
 
         an orthopedic surgeon and R. F. Neiman, M.D., a neurologist.
 
         
 
              *****A rating by Dr. Roach*****referred to a "10% PPD" for 
 
         the foot and ankle injury which he stated relates to a 4 percent 
 
         of the body as a whole.  There was no rating of permanent 
 
         impairment to the leg by Dr. Roach.*****
 
         
 
              Dr. Neiman gave a rating opinion [of 20.5 percent of the 
 
         leg] to claimant on July 21, 1992.  Dr. Roach*****rated 
 
         claimant's permanent disability on May 18, 1992.*****
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed September 24, 1993 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              I.  A permanent partial disability is either scheduled or 
 
         unscheduled.  A scheduled disability is evaluated by the 
 
         functional loss method.  The industrial method is used to 
 
         evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. Delong's Sportswear 
 
         332 N.W.2d 886, 997 (Iowa 1983).  When the result of an injury is 
 
         loss to a scheduled member, the compensation payable is limited 
 
         to that set forth in the appropriate subdivision of Iowa Code 
 
         section 85.34(2).  Barton v. Nevada Poultry Company, 253 Iowa 
 
         285, 110 N.W.2d 660 (1961).  "Loss of use" of a member is 
 
         equivalent to "loss" of the member.  Moses v. National Union C.M. 
 
         Co., 184 N.W. 746 (1922).  Pursuant to Iowa Code section 
 
         85.34(2)(u), the industrial commissioner may equitably prorate 
 
         compensation payable in those cases where the loss is something 
 
         less than that provided for in the schedule.  Blizek v. Eagle 
 
         Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
         
 
              [The medical evidence in the record consists of two medical 
 
         opinions on whether claimant's impairment from his injury is 
 
         limited to the foot, or whether it extends to the leg.  Dr. 
 
         Roach, the treating physician, opines that claimant's impairment 
 
         is limited to the foot and ankle.  Dr. Neiman treats claimant's 
 
         impairment as extending to the leg.
 
         
 
              Initially, it is noted that pain radiating to another body 
 
         part does not extend the nature of the disability.  Weishaar v. 
 
         Snap-On Tools, Appeal Decision, June 28, 1991.  Claimant's 
 
         testimony that his pain extends beyond the ankle into the leg and 
 
         even into the hip is insufficient to carry his burden to show 
 
         that the impairment from the injury extends beyond the ankle.  It 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         is also noted that for purposes of workers' compensation in Iowa, 
 
         an ankle is considered part of the foot.  Angerman v. K-Mart 
 
         Corp., Arbitration Decision, February 20, 1990.
 
         
 
              Thus, the conflicting medical testimony on whether the 
 
         impairment from claimant's work injury extends beyond the ankle 
 
         into the leg must be considered.  Dr. Roach was claimant's 
 
         treating physician.  Dr. Roach performed claimant's surgeries, 
 
         and thus had an opportunity to make an internal examination that 
 
         Dr. Neiman did not have.  Further, Dr. Roach treated claimant in 
 
         the course of up to 20 visits, over a long period of time.  In 
 
         contrast, Dr. Neiman saw claimant only once.
 
         
 
              The greater weight will be given to the evidence of Dr. 
 
         Roach.  It is concluded that claimant's impairment from his work 
 
         injury does not extend beyond the ankle and is an impairment of 
 
         the foot and not the leg.  Claimant is entitled to 10 percent of 
 
         150 weeks under Iowa Code section 85.34(2)(n).
 
         
 
              [In the case sub judice, it was found that claimant suffered 
 
         a 10 percent permanent loss of use of his foot.  Based on such a 
 
         finding, claimant is entitled to 15 weeks of permanent partial 
 
         disability benefits under Iowa Code section 85.34(2)(n) which is 
 
         10 percent of 150 weeks, the maximum allowable weeks of 
 
         disability for an injury to a foot in that subsection.]
 
         
 
              Claimant is entitled to an independent evaluation under Iowa 
 
         Code section 85.39 when the claimant is dissatisfied with a 
 
         permanent disability rating by an employer retained physician.  
 
         Therefore, the expense of the evaluation by Dr. Neiman will be 
 
         awarded.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                              
 
         
 
         
 
         Page   4
 
         
 
         
 
         
 
                                     ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant fifteen (15) weeks of 
 
         permanent partial disability benefits at a rate of two hundred 
 
         twenty-nine and 26/l00 dollars ($229.26) per week from October 
 
         24, 1988.
 
         
 
              That defendants shall pay to claimant the cost of the 
 
         evaluation by Dr. Neiman.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for the fifteen 
 
         (15) weeks of benefits previously paid.
 
         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30. 
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              That defendants shall file activity reports on the payment 
 
         of this award as requested by this agency pursuant to rule 343 
 
         IAC 3.1.
 
         
 
         
 
              Signed and filed this ____ day of January, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue SW
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         P O Box 2107
 
         Cedar Rapids, Iowa  52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803; 1803.1
 
                                            Filed January 31, 1994
 
                                            BYRON K. ORTON
 
                 
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            WILLIAM WADSWORTH,              :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 885130
 
            COPE CONSTRUCTION,              :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            UNITED FIRE & CASUALTY,         :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            5-1803; 1803.1
 
            Claimant's ankle impairment found to be limited to the foot 
 
            and not extending to the leg.
 
            
 
 
            
 
      
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM WADSWORTH,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 885130
 
            COPE CONSTRUCTION,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            Wadsworth, claimant, against Curt Cope Construction, 
 
            employer, hereinafter referred to as Cope, and United Fire 
 
            and Casualty, insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            May 16, 1988.  On June 2, 1993, a hearing was held on 
 
            claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On May 16, 1988, claimant received an injury 
 
            arising out of and in the course of employment with Cope.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            or healing period benefits in this proceeding.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is a scheduled member 
 
            disability to either the foot or leg.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of October 24, 1988.
 
            
 
                 5.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $361.00; he was married; and he was 
 
            entitled to two exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $229.26, according to the Industrial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Commissioner's published rate booklet for this injury.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to permanent 
 
            disability benefits.
 
            
 
                 II.  The extent of claimant's entitlement to an 
 
            independent examination under Iowa Code section 85.39.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has been a carpenter for 27 years.  On May 16, 
 
            1988, he fell 12 feet from scaffolding while on the job 
 
            landing on his right foot.  Claimant suffered an extensive 
 
            fracture of the foot and ankle requiring three surgeries to 
 
            insert a pin, remove the pin and remove a nerve ending.  
 
            Today claimant complains of inability to walk on uneven, 
 
            muddy terrain and to make twisting movements with his foot.  
 
            Flexion and extension are not problems but he cannot roll 
 
            his foot right or left.  He also complains of numbness in 
 
            the ankle and foot.  He has been on inflammatory medication 
 
            for four years.  He still is experience pain in the ankle 
 
            and foot today.
 
            
 
                 It is found that claimant suffered an injury to his leg 
 
            rather than just his foot.  The injury is not limited to the 
 
            foot because the ankle is involved and there was permanent 
 
            damage to the nural nerve above the foot.  This finding is 
 
            based upon the description of the injury by claimant's 
 
            treating physician Martin Roach, M.D., an orthopedic surgeon 
 
            and R. F. Neiman, M.D., a neurologist.
 
            
 
                 It is found that the injury of May 16, 1988 was a cause 
 
            of a 20.5 percent impairment to the leg.  This is based upon 
 
            the rating of impairment by Dr. Neiman.  A rating by Dr. 
 
            Roach could not be considered because his opinions were 
 
            vague.  He referred to a "10% PPD" for the foot and ankle 
 
            injury which he stated relates to a 4 percent of the body as 
 
            a whole.  There was no rating of permanent impairment to the 
 
            leg.  Also, Dr. Roach made no reference to use of a rating 
 
            guide while Dr. Neiman referred to the AMA guidelines.
 
            
 
                 Dr. Neiman gave his rating opinion to claimant on July 
 
            21, 1992.  Dr. Roach is an physician retained by Cope and he 
 
            rated claimant's permanent disability on May 18, 1992.  
 
            Claimant had reason to be dissatisfied with Dr. Roach's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            rating.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  A permanent partial disability is either scheduled 
 
            or unscheduled.  A scheduled disability is evaluated by the 
 
            functional loss method.  The industrial method is used to 
 
            evaluate an unscheduled disability.  Martin v. Skelly Oil 
 
            Co., 252 Iowa 128, 133 106 N.W.2d 95, 98 (1960); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v 
 
            Delong's Sportswear 332 N.W.2d 886, 997 (Iowa 1983).  When 
 
            the result of an injury is loss to a scheduled member, the 
 
            compensation payable is limited to that set forth in the 
 
            appropriate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to "loss" of the 
 
            member.  Moses v. National Union C.M. Co., 184 N.W. 746 
 
            (1922).  Pursuant to Code section 85.34(2)(u), the 
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases where the loss is something less than 
 
            that provided for in the schedule.  Blizek v. Eagle Signal 
 
            Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 20.5 percent permanent loss of use of his leg.  
 
            Based on such a finding, claimant is entitled to 45.1 weeks 
 
            of permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(o) which is 20.5 percent of 220 weeks, the 
 
            maximum allowable weeks of disability for an injury to a leg 
 
            in that subsection.
 
            
 
                 Claimant is entitled to an independent evaluation under 
 
            Iowa Code section 85.39 when the claimant is dissatisfied 
 
            with a permanent disability rating by an employer retained 
 
            physician.  Therefore, the expense of the evaluation by Dr. 
 
            Neiman will be awarded.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant 45.1 weeks of 
 
            permanent partial disability benefits at a rate of two 
 
            hundred twenty-nine and 26/l00 dollars ($229.26) per week 
 
            from October 24, 1988.
 
            
 
                 2.  Defendants shall pay to claimant the cost of the 
 
            evaluation by Dr. Neiman.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for the 
 
            fifteen (15) weeks of benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW
 
            Suite 114
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            P O Box 2107
 
            Cedar Rapids, Iowa  52406
 
 
 
 
            
 
 
 
                   
 
 
 
 
 
                                            5-1803
 
                                            Filed September 24, 1993
 
                                            LARRY P. WALSHIRE
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM WADSWORTH,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 885130
 
            COPE CONSTRUCTION,  
 
                                         A R B I T R A T I O N
 
                 Employer, 
 
                                            D E C I S I O N
 
            and       
 
                      
 
            UNITED FIRE & CASUALTY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803 
 
            Non-precedential, extent of disability case.