BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
                  
 
N. GAIL SMITH,  
 
         
 
     Claimant, 
 
         
 
vs.                                       File No. 890731
 
         
 
PIRELLI-ARMSTRONG,                    A R B I T R A T I O N
 
         
 
     Employer,                            D E C I S I O N
 
         
 
and        
 
         
 
TRAVELERS INSURANCE CO.,  
 
         
 
    Insurance Carrier,  
 
    Defendants.    
 
----------------------------------------------------------------                  
 
         
 
                  STATEMENT OF THE CASE
 
         
 
This is a proceeding in arbitration brought by N. Gail 
 
Smith against Pirelli-Armstrong, his former employer, based 
 
upon an injury of January 14, 1988.  The issues to be 
 
determined are the extent of claimant's permanent partial 
 
         
 

 
         
 
 
 
 
 
 
 
disability and the rate of compensation.  The case was heard 
 
at Des Moines, Iowa on March 22, 1995.  The record consists 
 
of testimony from N. Gail Smith, Earl Seymore and Joyce 
 
Kain.  The record also contains claimant's exhibits A and 
 
defendants' exhibits A through I.
 
         
 
                  FINDINGS OF FACT
 
         
 
N. Gail Smith is a 54-year-old man who graduated from 
 
high school and served one and one-half years in the army.  
 
His entire civilian work life had been in the employ of 
 
Pirelli-Armstrong until he retired in November 1994.  
 
(Defendants' Exhibit F)  He worked at the employer's plant 
 
in Natchez, Mississippi until 1987 when he transferred to 
 
the Des Moines, Iowa plant.  He has worked as a turret 
 
servicer, tire builder, press operator and performed quality 
 
control.  After the injury that is the subject of this case 
 
he worked primarily as a janitor.  His highest rate of 
 
earnings was in the range of $14 per hour before the injury 
 
occurred.
 
         
 
Claimant injured his back on January 14, 1988 while 
 
changing a roll of steel belt on the machine that he was 
 
operating.  The injury was an aggravation of a previously 
 
asymptomatic and unknown spondylolisthesis condition.
 
         
 
Conservative treatment was unsuccessful and claimant 
 
eventually underwent surgery performed by Thomas Carlstrom, 
 
M.D., a neurosurgeon.  (Claimant's Ex. A9, p. 19)  After a 
 
period of recuperation Dr. Carlstrom assigned permanent 
 
activity restrictions of no lifting in excess of 25 pounds 
 
and no prolonged sitting, bending or standing for more than 
 
one hour.  (Cl. 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
Ex. A24, p. 34)  A restriction to a 40-hour work week was 
 
also imposed.  (Cl. Ex. A26, p. 36)  Dr. Carlstrom reported 
 
that claimant had a 16 to 18 percent permanent impairment 
 
and that it was entirely due to the injury rather than the 
 
preexisting asymptomatic condition.  (Cl. Ex. A25, p. 35; 
 
Cl. Ex. A31, p. 42)
 
         
 
Claimant was subsequently evaluated by Keith W. 
 
Riggins, M.D.  Dr. Riggins found claimant to have an 
 
impairment of 27 percent of the whole person due to his 
 
lumbar spine, all of which he considered to be related to 
 
the work injury.  Dr. Riggins also recommended that claimant 
 
not engage in activities which require persistent forward 
 
flexion beyond 10 degrees, repetitive forward flexion beyond 
 
20 degrees, occasional lifting of greater than 20 pounds, or 
 
frequent lifting of greater than 10 pounds.  He stated that 
 
claimant should not perform lifting activity that requires 
 
forward flexion of the trunk of his body.  (Cl. Ex. A32, p. 
 
47)  There is considerable difference between the impairment 
 
ratings but little difference between the activity 
 
restrictions recommended by Drs. Carlstrom and Riggins.  
 
         
 
Claimant's earnings prior to the date of injury are set 
 
forth in claimant's exhibit A36, pages 54 and 55 and 
 
defendants' exhibit G.  The wage calculation found at 
 
defendants' exhibit G, page 10 showing gross earnings of 
 
$8197 is found to reflect typical work weeks.  Claimant's 
 
exclusion of weeks which contain less than 40 hours is found 
 
to produce a result that is unrepresentative of the 
 
claimant's customary earnings.  It is noted that it was 
 
stipulated at hearing that claimant is married and entitled 
 
to two exemptions when computing the rate of compensation.  
 
 
 
That stipulation is adopted as being correct.  The gross 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
average weekly earnings are therefore $630.54 during the 13 
 
weeks prior to the injury.  
 
         
 
After the recuperating from the injury and returning to 
 
work claimant was always in a negotiated job.  He worked 
 
principally as a janitor.  This reduced his pay from what he 
 
had previously earned as a tire builder.  A great deal of 
 
testimony was given at hearing regarding the actual earnings 
 
subsequent to the injury.  The undersigned ordered the 
 
parties to submit records of claimant's post-injury earnings 
 
and such were received on March 24, 1995.  During the last 
 
nine weeks of work prior to the strike that began in July 
 
1994, claimant's gross average weekly earnings were $582.81.  
 
         
 
Claimant's gross weekly earnings during the weeks ending 
 
February 12, 1989 through April 23, 1989 were $482 per week.  
 
Comparison of the earnings in 1989 with those at the time of 
 
injury provides a more accurate picture of the loss of 
 
earnings resulting from the injury than comparing earnings 
 
in 1994.  Plant-wide wage increases appear to have provided 
 
approximately a $3 per hour pay increase between the time of 
 
injury and the summer of 1994.  Claimant's actual earnings 
 
appear to have dropped by approximately 24 percent as a 
 
result of the change from tire building to janitorial work 
 
that was necessitated by the injury.  Four hundred eight-two 
 
dollars per week is 76 percent of $630 per week.  
 
         
 
The bargaining unit employees at Pirelli-Armstrong went 
 
on strike commencing in July 1994.  Eventually the strike 
 
was settled and some of the employees were recalled to work.  
 
         
 
Claimant was not one of those who was initially recalled.  
 
He had an option of taking the retirement that was available 
 
to him or of declining to do so and taking his chances on 
 
being recalled.  He had a limited amount of time in which to 
 
         
 

 
         
 
 
 
 
 
 
 
make his choice.  He quite prudently chose the retirement 
 
which now provides him with a gross monthly income of $940.  
 
He is also a participant in a class action law suit regarding 
 
health care benefits for Pirelli-Armstrong retirees.  
 
If successful he will be entitled to fully paid health care benefits.  
 
         
 
Present employees of Titan Wheel, the successor in the 
 
plant, have a less favorable wage and benefit package than 
 
what claimant experienced immediately prior to the strike.  
 
         
 
If claimant had been accepted for reemployment by Titan 
 
Wheel as a janitor he would be receiving lower wages and 
 
less desirable fringe benefits than he had experienced 
 
immediately prior to the strike.  The desirability of his 
 
retirement package would also have been reduced.  
 
         
 
Since retiring from Pirelli-Armstrong claimant has held 
 
two different jobs.  The first was as a security guard where 
 
he worked 40 hours per week with a $6 per hour rate of pay.  
 
There were no fringe benefits.  He is now employed at 
 
Prairie Meadows where he works 40 hours per week and earns 
 
$7.50 per hour.  After 90 days he will be entitled to some 
 
fringe benefits if he elects to pay the cost of the 
 
benefits.
 
         
 
Claimant is also taking courses at Des Moines Area 
 
Community College.  He wants to become an investigator with 
 
a computer background.  No evidence was introduced with 
 
regard to the likelihood of obtaining employment or the 
 
earnings which he could expect to achieve if he completes 
 
the course and becomes an investigator with a computer 
 
background.  Claimant has not held his position at Prairie 
 
Meadows for long enough in order to determine whether that 
 
employment will be relatively permanent.
 
         
 

 
         
 
 
 
 
 
 
 
                    CONCLUSIONS OF LAW
 
         
 
The hearing report stipulates that claimant's 
 
disability was caused by the injury and that the disability 
 
is to be compensated industrially.  The stipulation is fully 
 
consistent with the evidence.
 
         
 
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.
 
         
 
Industrial disability is to be assessed based upon the 
 
worker's present ability to earn in the competitive job 
 
market without regard to accommodation furnished by the 
 
employer.  Thilges v. Snap-On Tools Corp., 529 N.W.2d 614 
 
(Iowa 1995).  It was only through accommodation by placing 
 
         
 

 
         
 
 
 
 
 
 
 
claimant into negotiated positions that he was able to 
 
continue to earn at the rate that is shown by his earnings 
 
record subsequent to the injury.  His activity restrictions are 
 
considerable.  They remove him from most of the regular 
 
machine operator positions that he has previously held.  It 
 
is clear that his actual loss of earning capacity that 
 
resulted from the injury is far greater than the 24 percent 
 
reduction in actual earnings that he experienced while still 
 
employed at Pirelli-Armstrong.  If his current earnings of 
 
$7.50 per hour are compared to what he could be earning as a 
 
tire builder with Titan Wheel at approximately $14 per hour 
 
plus considerable fringe benefits, it is readily apparent 
 
that his actual reduction of earnings is in the range of 50 
 
percent.  On the other hand, if current janitorial earnings 
 
of $12 per hour are compared to current tire builder 
 
earnings of $14 per hour the actual reduction in earnings 
 
would be only 15 percent.  There is no way to know, however, 
 
whether claimant would have been rehired in view of the 
 
physical activity restrictions that the physicians have 
 
placed upon him.  
 
         
 
Impairment ratings do not directly produce disability 
 
in the sense of loss of earning capacity.  Physical activity 
 
restrictions are much more important than impairment ratings 
 
though, as a practical matter, there is often some 
 
correlation between the two.  The differences between the 
 
activity restrictions recommended by Drs. Carlstrom and 
 
Riggins are negligible though  their impairment ratings 
 
differ considerably.  It is the activity restrictions which 
 
limit claimant's access to jobs, not his impairment rating.  
 
         
 
Impairment ratings are a standardized method adopted by 
 
groups in the medial profession in an effort to promote 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
uniformity.  By doing so they are necessarily arbitrary.  
 
         
 
Impairment ratings have little direct correlation to earning 
 
capacity.  In this case it is concluded that N. Gail Smith 
 
has a 35 percent loss of earning capacity as a result of the 
 
injury of January 14, 1988.  Under section 85.34(2)(u) 
 
claimant is therefore entitled to receive 175 weeks of 
 
compensation for permanent partial disability.
 
         
 
Since claimant was paid by some combination of output 
 
and by the hour, his rate of compensation should be computed 
 
under section 85.36(6).  The rate of compensation is to be 
 
based on customary hours for the full pay period excluding 
 
absences from unanticipated occurrences.  Thilges, 528 
 
N.W.2d 614.  Atypical weeks are to be avoided.  Hanigan v. 
 
Hedstrom Concrete Products, Inc., 524 N.W.2d 158 (Iowa 
 
1994).  The evidence at hearing and the records themselves 
 
show that work weeks with less than 40 but with 32 or more 
 
hours are not atypical.  Accordingly, the weeks proposed by 
 
the defendants are found to be the correct weeks to be used 
 
in computing the rate of compensation.  In view of the date 
 
of injury the 1987 benefit booklet is applicable.  
 
         
 
Claimant's weekly earnings round to $630 per week, with 
 
claimant being married and entitled to two exemptions as 
 
stipulated in the hearing report, the rate of compensation 
 
is therefore $382.57 per week.  
 
         
 
                  ORDER
 
         
 
IT IS THEREFORE ORDERED that defendants pay N. Gail 
 
Smith one hundred seventy-five (175) weeks compensation for 
 
permanent partial disability at the rate of three hundred 
 
eighty-two and 57/100 dollars ($382.57) per week payable 
 
commencing March 20, 1990.  All past due accrued amounts 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
shall be paid in a lump sum together with interest computed 
 
from the date each payment came due until the date of actual 
 
payment at the rate of 10 percent per annum pursuant to 
 
section 85.30.
 
         
 
It is further ordered that defendants pay to claimant 
 
an additional sum of thirty-seven and 75/100 dollars 
 
($37.75) per week for each week of benefits previously paid 
 
in order to adjust for the difference in the rate of 
 
compensation determined by this decision and that which had 
 
been previously paid by the defendants.  Defendants shall 
 
also pay interest on the difference of thirty-seven and 
 
75/100 dollars ($37.75) per week pursuant to section 85.30.
 
         
 
It is further ordered that the costs of this action are 
 
assessed against defendants.
 
         
 
It is further ordered that defendants file claim 
 
activity reports as requested by this agency.
 
         
 
Signed and filed this __________ day of May, 1995.
 
         
 
                  
 
         
 
                                    ______________________________
 
                                    MICHAEL G. TRIER
 
                                    DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
Copies to:
 
         
 
Mr. Robert Pratt
 
Attorney at Law
 
         
 

 
         
 
 
 
 
 
 
 
6959 University Ave.
 
Des Moines, Iowa  50311-1540
 
         
 
Mr. Steven M. Nadel
 
Attorney at Law
 
100 Court Ave STE 600
 
Des Moines, IA  50309
 
         
 
 
         
 
 
 
 
 
 
 
         
 
                                         1803 3001
 
                                         Filed May 22, 1995
 
                                         Michael G. Trier
 
         
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
                  
 
N. GAIL SMITH,  
 
         
 
     Claimant, 
 
         
 
vs.                                      File No. 890731
 
         
 
PIRELLI-ARMSTRONG,                   A R B I T R A T I O N
 
         
 
     Employer,                           D E C I S I O N
 
         
 
and        
 
         
 
TRAVELERS INSURANCE CO.,  
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
----------------------------------------------------------------                  
 
1803 
 
Claimant who retired from Pirelli-Armstrong rather than face 
 
the uncertainty of recall awarded 35 percent permanent 
 
partial disability.  He has very substantial activity 
 
restrictions including a maximum weightlifting of 25 pounds.  
 
Since the time of injury he had always been in a negotiated 
 
position.  He was not capable of operating machines as he 
 
had done prior to the injury.  
 
         
 
3001
 
Atypical weeks were excluded but weeks with 32 or more hours 
 
of work were found to be customary and were used in 
 
computing the rate of compensation.  Thilges v. Snap-On 
 
Tools Corp., 529 N.W.2d 614 (Iowa 1995) and Hanigan v. 
 
Hedstrom Concrete Products, Inc., 524 N.W.2d 158 (Iowa 
 
1994) cited.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD A. PELL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 890794
 
            vs.                           :
 
                                          :
 
            CURRIES MFG INC.,             :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            WAUSAU INS. CO.,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on November 26, 1990, in 
 
            Mason City, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits and additional healing period benefits 
 
            as a result of an injury occurring on June 30, 1988.  The 
 
            record in the proceeding consists of the testimony of 
 
            claimant, Vern Dannen, Sara Kuykendall, Mark J. Wyborny, 
 
            Mark Evers, and Bradley L. Williams; and joint exhibits 1 
 
            through 56.
 
            
 
                                      issue:
 
            
 
                 The sole issue for resolution in this case is the 
 
            nature and extent of claimant's disability and entitlement 
 
            to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 45 years old and has completed the eighth 
 
            grade.  He has not received a GED or any other formal 
 
            education.  Claimant related his work history before 
 
            beginning work with defendant employer in August 1986.  This 
 
            prior work basically involved body shop work.  Claimant 
 
            also, mainly as a side job or hobby, restored antique 
 
            vehicles and was a musician.
 
            
 
                 Claimant's first position with defendant employer in 
 
            1986 was as a door finisher.  He described his work and 
 
            related the necessity of lifting, pushing and sliding the 
 
            doors into an even position so that he could grind, weld and 
 
            finish the doors all at one time as they lay stacked on a 
 
            cart.  He said the doors were usually stacked from three to 
 
            thirteen doors deep.  These doors were normally 12 to 60 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            inches in width and weighed up to 130 pounds.  He said this 
 
            work was similar to body shop work.
 
            
 
                 Claimant related his activities before his June 30, 
 
            1988 injury.  Claimant rode a 1000 pound motorcycle and 
 
            drove it to work with a fellow employee, Mark Wyborny, as a 
 
            rider.  Claimant was an accomplished musician for nineteen 
 
            years, having his own band and being a lead guitar player, a 
 
            piano and mouth organ player.  He also worked on his own 
 
            vehicles and restored vehicles of his own or others.  
 
            Claimant entered his vehicles in shows.  Claimant had no 
 
            physical limitations or restrictions before June 30, 1988.
 
            
 
                 Claimant was injured at work on June 30, 1988, while 
 
            trying to line up a stack of 13 or 14 doors so that he could 
 
            perform his normal finishing duties.  He was having trouble 
 
            lining up the doors and sought the help of a fellow 
 
            employee.  While they both attempted to push and line up the 
 
            doors, the stack of doors moved and claimant said he felt 
 
            like his body "busted" and as if fire was coming out of his 
 
            feet.  Claimant told his shift boss what had happened.  His 
 
            boss requested that claimant get out one more stack of 
 
            doors.  Claimant complied with this request and did the 
 
            grinding with no further lifting.
 
            
 
                 After a failure of conservative treatment, claimant had 
 
            a two level laminectomy on November 16, 1988.
 
            
 
                 Claimant went through a work hardening program.  
 
            Because of all the circumstances at the time, it was 
 
            concluded that, since defendant employer was in full 
 
            cooperation, the best work hardening would be to let 
 
            claimant work at a position with defendant employer 
 
            beginning two hours a week and working his way back up so 
 
            that he could ultimately be back to his eight hours per day 
 
            job.  Claimant returned to his employer in August 1989 as a 
 
            door hinge tapper which met claimant's ten pound weight 
 
            restriction and enabled claimant to proceed at his own pace.  
 
            Claimant desired to reach his former work hour capacity and 
 
            set goals.  Presently, he is at seven hours per day and this 
 
            is what the doctor has established for him recently.  
 
            Claimant has not been able to return to his former position 
 
            of door finisher and it is presently obvious, and there 
 
            appears to be no dispute to the fact, that claimant is not 
 
            able to do the door finishing job because of his June 30, 
 
            1988 injury.  Claimant, who is left handed, is not able to 
 
            lift his left arm above shoulder level.  It appears claimant 
 
            has extreme difficulty doing this and is in great pain and 
 
            exertion distress.
 
            
 
                 The undersigned believes claimant was in real pain and 
 
            was not exaggerating when he showed the undersigned and 
 
            those present in court the extent of his ability to lift his 
 
            left arm.  The undersigned intentionally observed claimant 
 
            off and on during the hearing and after his testimony.  
 
            Claimant is limited in his neck and body movement and turns 
 
            his head and body together.  It appears claimant has limited 
 
            or no neck turning ability.  This observation is supported 
 
            by other witnesses and evidence in this case.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Although claimant said additional surgery has been 
 
            considered, he does not intend to have further surgery.  No 
 
            doctor has recommended surgery and, in fact, there is 
 
            medical testimony to the extent that further surgery to 
 
            claimant's neck could be more detrimental.
 
            
 
                 Claimant is no longer able to pursue his musical side 
 
            career, restore vehicles, do body work, maintain his car or 
 
            ride his motorcycle as he did prior to June 30, 1988.  
 
            Basically, claimant is unable to do any of his side work 
 
            that he was actually doing prior to June 30, 1988.
 
            
 
                 Claimant had nothing but praise for his employer and 
 
            their cooperation with him in helping him to recover, and 
 
            support his motivation to continue working and putting out 
 
            quality work.  Claimant has very good motivation.  Claimant 
 
            has not looked around for other work.  This is 
 
            understandable.  The undersigned does not believe claimant 
 
            could do as good or better under his current circumstances 
 
            than what he is doing at defendant employer.  In fact, 
 
            considering the medical history as a whole, claimant's 
 
            impairments, and in observing claimant, the undersigned 
 
            believes claimant would have considerable difficulty finding 
 
            other work within the field in which he has transferable 
 
            skills.  It is to the employer's benefit to keep this 
 
            claimant employed.  The system is working as it should, in 
 
            other words, we have an employer who recognizes a good, 
 
            valuable and motivated employee who received a work injury 
 
            and the employer is willing to help a very motivated person 
 
            to get back on his feet for everyone's benefit.  Both 
 
            parties are to be congratulated.
 
            
 
                 Claimant has a good work record.  He has not missed any 
 
            of the employer's regularly given pay increases and his 
 
            income has increased from his beginning $7.05 per hour rate 
 
            to approximately $8.30 on June 30, 1988, to his current 
 
            $10.15 per hour wage.  These hourly wages are affected by 
 
            the added amount per hour if claimant is on the second or 
 
            third shifts, which has usually been the case.  The $10.15 
 
            includes the current $.35 additional hourly sum since 
 
            claimant is working the third shift, 11:00 p.m. to 7:00 a.m.
 
            
 
                 Vern Dannen, who has been a door finisher with 
 
            defendant employer for eight years, was subpoenaed to 
 
            testify.  He related claimant's abilities prior to June 30, 
 
            1988.  He said claimant could do anything prior to that time 
 
            whether it be at work or at home.  He said claimant did very 
 
            good work on cars and won first place.  He said claimant 
 
            also did a music recording and was a good motorcycle rider.  
 
            He said claimant can no longer play his musical instruments 
 
            or work on restoring cars.  He noted that claimant drinks 
 
            coffee with his right hand instead of his left hand and has 
 
            little head movement.  He said claimant is a conscientious 
 
            worker and tries hard but indicated claimant's condition is 
 
            bad as a worker.  He emphasized he knows claimant is in a 
 
            lot of pain.  He said defendant employer has changed the 
 
            door finishing jobs since June 30, 1988 and now provides 
 
            hooks in aiding the employees in aligning the doors.
 
            
 
                 Sara Kuykendall has known claimant since he began 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            working for defendant employer.  She worked fifteen years 
 
            for defendant employer as an occupational nurse until she 
 
            left that employment in July 1990.  She said claimant had no 
 
            observable physical problems or limitations prior to June 
 
            30, 1988, and his work attendance is very good.  She said 
 
            claimant was still to continue his work hardening when she 
 
            left defendant employer in July 1990.  She said he was to 
 
            ultimately reach his goal of 40 hours per week.  She said 
 
            claimant is a good conscientious worker but moves much 
 
            slower since his injury.  She has never seen claimant lift 
 
            his arm since his June 30, 1988 injury higher than she saw 
 
            him in court today, in other words, can't lift it above 
 
            shoulder level.  Since June 30, 1988, she has never seen 
 
            claimant move his head separately from his body.  She said 
 
            she has observed claimant often at his job since his June 
 
            30, 1988 injury and before she left defendant employer.  She 
 
            said claimant returned to work in August 1989 for two hours 
 
            per day and received the regular hourly rate.  She said 
 
            claimant received his regular hourly increases that are 
 
            periodically paid by the employer.
 
            
 
                 Mark Wyborny's testimony was basically cumulative and 
 
            supportive of the claimant and other witnesses as to 
 
            claimant's pre June 30, 1988 activities and his observable 
 
            physical condition.  Mr. Wyborny used to ride to work with 
 
            claimant on claimant's motorcycle before claimant's June 30, 
 
            1988 injury.
 
            
 
                 Mark Evers, defendant employer's industrial relations 
 
            manager, testified claimant has not suffered any loss of 
 
            wage increase due to his injury.  He said claimant is making 
 
            more now than when he was injured on June 30, 1988.  There 
 
            is no dispute in this case as to these facts.  Mr. Evers 
 
            indicated claimant is a model employee and that he wants to 
 
            keep him around.  Obviously, he could not guarantee claimant 
 
            a job indefinitely in the future.  He said there are other 
 
            jobs within defendant employer's company which claimant 
 
            could perform that are within claimant's limitations and 
 
            restrictions if claimant decided he didn't want to do his 
 
            current door hinge tapping job.
 
            
 
                 Bradley Williams, a first shift door supervisor with 
 
            defendant employer, has worked for defendant employer 
 
            fifteen years.  His testimony is basically cumulative with 
 
            Mr. Evers' testimony.  Williams said claimant is a very 
 
            conscientious worker and puts out all he can.  He said 
 
            claimant isn't ready for an eight hour shift at this time.  
 
            He has observed claimant's car restoring prior to June 30, 
 
            1988 and said claimant was very good in restoring vehicles.  
 
            He agreed claimant could not do restoring work now because 
 
            of his physical condition.
 
            
 
                 Peter T. Dorsher, M.D., with the Mayo Clinic, testified 
 
            by way of deposition on August 30, 1990.  He first treated 
 
            claimant on June 8, 1990.  He related the various medical 
 
            information and history he has concerning claimant.  Dr. 
 
            Dorsher agreed with the 18 percent permanent functional 
 
            impairment rating regarding claimant's neck injury and, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            also, as to claimant's lifting restrictions.  Dr. Dorsher 
 
            said it is generally recommended that a person with cervical 
 
            disc surgery and persistent symptomatology should not return 
 
            to work beyond light duty.  He testified at length as to 
 
            various measurements and application of certain medical 
 
            guides and sources as to arriving at an impairment for 
 
            claimant.  He came up with certain impairment percentages in 
 
            relation to various functional limitations of claimant, 
 
            which amounted to 35 percent of the whole man (Joint Exhibit 
 
            1, page 14).  He indicated this is more than he would have 
 
            suspected.
 
            
 
                 In a letter dated July 5, 1990 (Jt. Ex. 7, p. 84), he 
 
            agreed with Dr. Beck's 18 percent permanent partial 
 
            impairment rating regarding claimant's multi-level cervical 
 
            diskectomy and fusion.  Dr. Dorsher wrote, on August 28, 
 
            1990, that claimant's upper extremity carpal tunnel syndrome 
 
            and degenerative elbow arthritis amounts to 10 percent 
 
            impairment to claimant's body as a whole (Jt. Ex. 3, p. 75).  
 
            Dr. Dorsher could not contribute claimant's problems with 
 
            his arms and shoulders as to their etiology to anything 
 
            other than to claimant's June 30, 1988 injury based on 
 
            claimant's medical history and freedom from symptoms prior 
 
            to June 30, 1988.
 
            
 
                 On August 9, 1990, David M. Gill, M.D., wrote that 
 
            claimant could advance to seven hours per day work beginning 
 
            the first week of September  1990 (Jt. Ex. 4, p. 76).
 
            
 
                 Thomas A. Carlstrom, M.D., a neurologist, testified by 
 
            way of his deposition on October 1, 1990 (Jt. Ex. 51).  His 
 
            testimony is basically summed up in his report dated August 
 
            2, 1990 (Jt. Ex. 5, p. 77).  Dr. Carlstrom opined that 
 
            claimant's neck, shoulder and elbow problems were causally 
 
            connected to his June 30, 1988 injury, and that claimant has 
 
            a permanent injury to his neck.  He recommended a permanent 
 
            25 pound lifting restriction with his left arm and indicated 
 
            claimant must avoid twisting and cramp positions.  He felt 
 
            claimant reached maximum healing shortly after claimant 
 
            returned to work in the fall of 1989.  He further opined 
 
            that claimant has a 12 percent body as a whole impairment 
 
            due to his neck injury and 25 percent of the left arm (Jt. 
 
            Ex. 5, p. 78).  It appears Dr. Carlstrom's 12 percent 
 
            impairment rating did not include anything for pain.  When 
 
            asked about the 8 percent Dr. Beck added for pain or loss of 
 
            motion, he concluded his impairment is close to Dr. Beck's.  
 
            Dr. Carlstrom said he doesn't give any consideration for 
 
            subjective symptoms (Jt. Ex. 51, pp. 35 & 36).
 
            
 
                 David Wallace Beck, M.D., a neurologist, testified by 
 
            way of his deposition on June 30, 1990 (Jt. Ex. 9).  He 
 
            first saw claimant on August 1, 1988 regarding claimant's 
 
            lifting and door pushing incident at work.  He performed an 
 
            interior diskectomy and fusion of claimant's C5-6 and C6-7 
 
            on November 16, 1988 (Jt. Ex. 40, p. 198).  Dr. Beck said 
 
            both discs were herniated and pushing on the nerve root.  He 
 
            causally connected claimant's neck problems and surgery to 
 
            claimant's June 30, 1988 work injury.  He opined claimant's 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            healing period ended in May 1990, one and one-half years 
 
            from claimant's surgery.  He said that this was an 
 
            abnormally long period.  He attributes the reasons for 
 
            claimant's longer than normal healing period to claimant's 
 
            large neck.  He said such people tend to take longer to 
 
            heal.  He affirmed his previous 18 percent functional 
 
            impairment to claimant's body as a whole to his neck injury.  
 
            He doubted whether claimant can ever return to full 
 
            employment nor will he ever be free from pain.  He does not 
 
            recommend further surgery and even suggested surgery could 
 
            make claimant's condition worse.  He concluded claimant 
 
            reached maximum healing on December 4, 1989.  He had no 
 
            further information to indicate claimant's condition has 
 
            changed since that time (Jt. Ex. 9, pp. 17 & 18).  It was at 
 
            this time he opined a 18 percent permanent impairment due to 
 
            claimant's neck injury.
 
            
 
                 Dr. Gill wrote on January 3, 1990, that claimant is 
 
            currently on a work hardening program and is working four 
 
            hours per day.  He said claimant would not be further healed 
 
            until claimant was working eight hours for four to six weeks 
 
            (Jt. Ex. 10, p. 138; Jt. Ex. 11, p. 140).  On July 6, 1989, 
 
            Dr. Gill established restrictions of occasional lifting of 
 
            no more than 10 pounds, frequent and constant lifting should 
 
            be of negligible weight.  Claimant should perform no work 
 
            above shoulder height, should avoid working which requires 
 
            sustained or repetitive flexion of the waist, and should 
 
            avoid prolonged standing or working.  He limited claimant to 
 
            two to four hours per day at sedentary to very light work 
 
            (Jt. Ex. 23, p. 157).
 
            
 
                 On June 30, 1989, a licensed physical therapist had 
 
            established the same restrictions and limitations that the 
 
            doctor had put in his July 1989 letter (Jt. Ex. 24, p. 158).
 
            
 
                 It appears claimant was going through some depression 
 
            also.  It is understandable.  Claimant was a very active 
 
            person, using many skills and his life became very limited 
 
            because of his injury.  It is obvious he had a love for 
 
            restoring antique cars, doing body work, and playing musical 
 
            instruments.  (Jt. Ex. 22, p. 156; Jt. Ex. 27, p. 169).
 
            
 
                 It appears that defendants do not dispute that claimant 
 
            has an 18 percent permanent impairment and paid 18 percent 
 
            industrial disability.  (See defendants' contentions 
 
            attached to their prehearing report).  Defendants contend 
 
            that claimant is not entitled to more than the 18 percent 
 
            they have already paid.  Permanent impairment and industrial 
 
            disability are two entirely different items.  Impairment is 
 
            one item to be considered in trying to determine industrial 
 
            disability.  An impairment can be substantially less than 
 
            the ultimate industrial disability or, in fact, the 
 
            industrial disability could be the same or less than the 
 
            actual impairment.  There are many other criteria that must 
 
            be considered.  It appears defendants' main thrust in their 
 
            position also is a fact that claimant is earning more now 
 
            than on the date of his injury.  It appears obvious that the 
 
            increases in claimant's income since his injury and since 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            his beginning employment with defendant employer are the 
 
            normal increases that employees get as they work for 
 
            defendant employer.  Claimant has not been treated any 
 
            differently as to his entitled hourly wage increases than 
 
            any other employee.  Income is one of several factors to be 
 
            considered in determining a claimant's industrial 
 
            disability.  
 
            
 
                 Claimant is 45 years old and has only an eighth grade 
 
            education.  His only real transferable skills is in body 
 
            work, restoring cars, as a musician, or work as he is 
 
            performing for defendant employer.  It does not take much 
 
            intelligence to observe claimant and his physical 
 
            conditions.  Taking into consideration those observations, 
 
            the medical history and the medical testimony as a whole, 
 
            claimant obviously has a substantial impairment.  If it 
 
            wasn't for this employer cooperating and working with 
 
            claimant, the undersigned would question claimant's ability 
 
            to continue to be employed, taking into consideration his 
 
            transferable skills.
 
            
 
                 There is no dispute by the parties nor is there any 
 
            contrary medical testimony to the fact that claimant cannot 
 
            perform the job he was doing at the time of his injury on 
 
            June 30, 1988.  Also, there is no dispute that claimant 
 
            could no longer and has no longer pursued his restoring of 
 
            vehicles or engaging in his musical endeavors.
 
            
 
                 Claimant has a substantial loss of earning capacity.  
 
            There is no evidence of what claimant earned or could earn 
 
            in his restoring of automobiles or playing music.  The fact 
 
            is, he is no longer able to do these things and has lost the 
 
            earning capacity to do the same.  They are the type of 
 
            skills one could do and fall back on if he could no longer 
 
            work at defendant employer.  There is testimony that there 
 
            have been layoffs, and, of course, there is no guarantee of 
 
            employment with defendant employer.  There is testimony to 
 
            the fact that there was at one time a six month layoff at 
 
            defendant employer.  The undersigned will not speculate as 
 
            to what the future will be.  Only claimant's current 
 
            situation is to be considered.  Claimant had a full life of 
 
            activities.  Now, due to his June 30, 1988 injury, his 
 
            lifestyle and those activities he engaged in, whether for 
 
            his own enjoyment or his own investment purposes, or 
 
            whatever, have now been taken away from him by the June 30, 
 
            1988 injury.  Lack of motivation can affect the extent of 
 
            claimant's industrial disability.  Likewise, claimant should 
 
            not be docked for having tremendous motivation to continue 
 
            working regardless of the pain and his physical condition.  
 
            As mentioned earlier, the employer's cooperation in keeping 
 
            claimant employed has had a substantial effect on keeping 
 
            claimant's industrial disability and loss of earning 
 
            capacity at a substantially less figure than it might 
 
            otherwise be if defendants did not cooperate.
 
            
 
                 There is substantial testimony as to what a good worker 
 
            this employee is and the quality work he does.  It is 
 
            understandable why defendant employer would like to keep him 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            around.
 
            
 
                 Claimant's pre June 30, 1988 medical history showed 
 
            claimant was free from any of the symptoms from which he is 
 
            now suffering or has suffered since his June 30, 1988 
 
            injury.  Considering claimant's current medical condition, 
 
            claimant's work experience before and after his injury, his 
 
            eighth grade education, his physical condition, the location 
 
            and severity of his injury, his healing period, his age, 
 
            motivation and functional impairment, the undersigned finds 
 
            that claimant has a 40 percent industrial disability and 
 
            that this industrial disability is the result of claimant's 
 
            June 30, 1988 work injury.
 
            
 
                 The parties have not been able to agree on the extent 
 
            of claimant's healing period.  Claimant contends that he is 
 
            still in a healing period.  The reason is based on the fact 
 
            that claimant is still not working eight hours per day as he 
 
            was at the time of his June 30, 1988 injury.  There is a 
 
            disagreement among the medical doctors as to when claimant 
 
            reached his maximum healing.  The undersigned believes that 
 
            Dr. Beck, who performed claimant's surgery, is in the 
 
            position to determine when claimant reached maximum healing.  
 
            Dr. Beck, in his deposition (Jt. Ex. 9, p. 105), indicated 
 
            that "I believe that he plateaued about a year and a half 
 
            from surgery, which would be May of 1990."  On cross- 
 
            examination, Dr. Beck agreed with defendants' counsel that 
 
            he thought claimant had reached maximum medical improvement 
 
            on December 4, 1989 (Jt. Ex. 9, p. 116).  The evidence shows 
 
            that in January 1990, claimant reached a four hour day 
 
            working in his work hardening program.  It would appear that 
 
            claimant is presently on a type of work hardening program in 
 
            that he is gradually working up to his eight hours per day.
 
            
 
                 Dr. Gill indicated claimant begin working four hours 
 
            beginning January 3, 1990 (Jt. Ex. 12, p. 142).
 
            
 
                 It does appear from the evidence and from the testimony 
 
            of defendant employer's occupational nurse at the time that 
 
            the work hardening program allowing claimant to work at 
 
            defendant employer was the best situation at the time rather 
 
            than going through a hospital or some other program.  This 
 
            was particularly true since defendant employer was willing 
 
            to cooperate.  The undersigned does not accept claimant's 
 
            contention that claimant is in healing period until he is 
 
            able to reach his eight hours per day.  Due to claimant's 
 
            impairment, he may never reach that goal.  These facts and 
 
            claimant's impairment are taken into consideration in 
 
            determining claimant's disability.  The undersigned finds 
 
            that claimant incurred a healing period beginning June 30, 
 
            1988 to and including December 4, 1989, totaling 74.571 
 
            weeks, minus 5.571 weeks which the parties stipulated 
 
            claimant was off work due to an unrelated gall bladder 
 
            problem.  Claimant's healing period is 69 weeks.
 
            
 
                                conclusions of law
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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."
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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 to draw upon prior 
 
            experience, general and specialized knowledge to make the 
 
            finding with regard to degree of industrial disability.   
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, 1985); Christensen v. Hagen, Inc., (Appeal 
 
            Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an 18 percent permanent partial 
 
            impairment to the body as a whole as a result of his neck 
 
            injury and surgery caused by his June 30, 1988 injury.
 
            
 
                 Claimant incurred an additional 10 percent impairment 
 
            to his body as a whole due to the effect his cervical injury 
 
            had on his upper left extremity, and which additional 
 
            impairment was caused by claimant's June 30, 1988 work 
 
            injury.
 
            
 
                 Claimant is no longer able to perform his job as door 
 
            finisher with defendant employer, which he was able to 
 
            perform without limitation before his June 30, 1988 injury.  
 
            Claimant is now performing a different job with defendant 
 
            employer complying with claimant's work restrictions.
 
            
 
                 Claimant has lifting and other work restrictions 
 
            limiting him to light duty work as a result of his June 30, 
 
            1988 injury.
 
            
 
                 Claimant is no longer able to do body work, restore 
 
            vehicles, or play his guitar, piano or mouth organ due to 
 
            his June 30, 1988 work injury.
 
            
 
                 Claimant is a credible witness and from a personal 
 
            observance, claimant is in pain from his work injury and 
 
            surgery of June 30, 1988, and has real limited neck movement 
 
            and left arm use.
 
            
 
                 Claimant has good motivation and has not and is not 
 
            able to work an eight hour day with defendant employer.
 
            
 
                 Defendant employer has cooperated in keeping claimant 
 
            employed and has indicated he wants to keep claimant in 
 
            their employ as long as they can.
 
            
 
                 Claimant's June 30, 1988 work injury caused claimant to 
 
            incur a loss of earning capacity.
 
            
 
                 Claimant has incurred a 40 percent industrial 
 
            disability as a result of his June 30, 1988 work injury.
 
            
 
                 Claimant has incurred a healing period beginning June 
 
            30, 1988 to and including December 4, 1989, minus 5.571 
 
            weeks (November 2, 1989 to and including December 4, 1989) 
 
            during which time, as stipulated by the parties, claimant 
 
            was healing from a gall bladder problem.  Claimant incurred 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            69 weeks of healing period benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred nine and 75/100 dollars 
 
            ($209.75) for the period beginning June 30, 1988 to and 
 
            including December 4, 1989, minus a period of time 
 
            stipulated by the parties beginning November 2, 1989 to and 
 
            including December 15, 1989, in which claimant had gall 
 
            bladder problems which were not related in any way to 
 
            claimant's June 30, 1988 injury.  Said net healing period 
 
            weeks amount to sixty-nine (69) weeks.
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            (200) weeks of permanent partial disability benefits at the 
 
            rate of two hundred nine and 75/100 dollars ($209.75), 
 
            beginning December 5, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The defendants are to be 
 
            given credit as stipulated by the parties for two hundred 
 
            point seven one four (200.714) weeks of benefits.  
 
            Defendants are also to be given credit, as stipulated by the 
 
            parties, for temporary partial disability benefits for the 
 
            period between August 13, 1989 to and including December 3, 
 
            1989, totaling nine hundred seven and 54/100 dollars 
 
            ($907.54).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Rule 343 IAC 4.33.
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency, pursuant to Rule
 
            343 IAC 3.1.
 
            
 
            
 
            Signed and filed this _____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr E W Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St
 
            P O Box 455
 
            Spirit Lake IA 51360
 
            
 
            Mr. Marvin E Duckworth
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803.1
 
                      Filed December 11, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD A. PELL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 890794
 
            vs.                           :
 
                                          :
 
            CURRIES MFG INC.,             :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            WAUSAU INS. CO.,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Claimant awarded 40% industrial disability.