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.