Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            THEODORE R. ROBERTS,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892153
 
            AIR CON MECHANICAL CORP.,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            issues
 
            The issue on appeal is:  Whether claimant has proved a 
 
            causal connection between his July 6, 1988 work injury and 
 
            an alleged permanent disability.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed July 16, 1991 are adopted as final agency 
 
            action.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed July 16, 1991 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.
 
            1.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            The claimant has urged that the ultimate decision in this 
 
            matter rests with the evidence given by the experts who have 
 
            had the opportunity to treat the claimant's back and neck 
 
            conditions over the years.  More specifically, claimant 
 
            urges that Dr. Kimelman has conclusively found that claimant 
 
            has been further functionally impaired by five percent and 
 
            that this additional impairment has caused claimant to 
 
            qualify as an odd-lot employee thus entitling him to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            permanent total disability benefits.  In the alternative, 
 
            because claimant cannot return to his past occupation as a 
 
            plumber or pipefitter, claimant is entitled to a high 
 
            industrial disability benefit award.  Defendants contend 
 
            that claimant is not a credible witness and has not been 
 
            credible for a significant period of time when it comes to 
 
            workers' compensation claims.  Defendants urge that claimant 
 
            only temporarily aggravated his preexisting back condition 
 
            on July 6, 1988 and is not entitled to any permanent 
 
            disability benefits.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of July 6, 1988, is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            Expert medical evidence must be considered with all other 
 
            evidence introduced bearing on the causal connection.  Burt, 
 
            247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            While a claimant is not entitled to compensation for the 
 
            results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Gosek v. 
 
            Garmer and Stiles Co., 158 N.W.2d 731, 737 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812, 815 (1962); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).  However, the supreme court has also indicated that 
 
            in order for an aggravation of a preexisting condition to be 
 
            compensable, the aggravation should be material.  Yeager, 
 
            253 Iowa 369, 112 N.W.2d at 302.  Finally, when an 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            aggravation occurs in the performance of an employer's work 
 
            and a causal connection is established, claimant may recover 
 
            only to the extent of the impairment.  Ziegler, 252 Iowa 
 
            613, 106 N.W.2d at 595; Barz, 257 Iowa 508, 133 N.W.2d at 
 
            707; Olson, 255 Iowa 1112, 125 N.W.2d at 256; Yeager, 253 
 
            Iowa 369, 112 N.W.2d at 302; Almquist, 218 Iowa 724, 254 
 
            N.W. at 38.
 
            *****
 
            The ***** question in this matter, is whether claimant has a 
 
            temporary or permanent disability attributable to the injury 
 
            of July 6, 1988.  Claimant has failed to adduce sufficient 
 
            evidence to support a finding that the injury of July 6, 
 
            1988, resulted in anything more than a temporary 
 
            exacerbation of a chronic low back condition that resulted 
 
            from prior injuries.
 
            The medical evidence in this case has been reduced to 
 
            possibilities rather than probabilities due to the actions 
 
            of the claimant.  The surveillance tapes led both Dr. 
 
            Kimelman and Mr. Bower to question the validity of their 
 
            functional capacity evaluations and the functional 
 
            impairment rating Dr. Kimelman assigned.  The functional 
 
            impairment rating assigned by Dr. Kimelman was based on Mr. 
 
            Bower's report which is not valid.  Additionally, Dr. 
 
            Kimelman thought that claimant's functional impairment 
 
            rating would be modified if claimant had a prior injury at 
 
            L4-5.  Due to these uncertainties, there is insufficient 
 
            evidence in the record to support a conclusion that claimant 
 
            suffered a permanent disability as a result of his last back 
 
            injury.  Therefore claimant will take nothing with regard to 
 
            a permanent partial disability benefit award.
 
            Claimant did show that he was temporarily disabled however.  
 
            Pursuant to Iowa Code sections 85.32 and 85.33 (1989), 
 
            temporary total disability of more than 14 days is payable 
 
            in effect from the injury until the employee has returned to 
 
            work or is medically capable of returning to substantially 
 
            similar employment, whichever first occurs.  Dr. Kimelman 
 
            testified that claimant was medically capable of returning 
 
            to work six months after the date of the injury in this 
 
            matter.  Claimant did not return to work because he had no 
 
            incentive to return to work.  Claimant is currently 
 
            receiving Social Security benefits, he is receiving long 
 
            term disability benefits and workers' compensation benefits 
 
            that total $1,750.00 per month.  Additionally, claimant will 
 
            not work because his former spouse is intent on garnishing 
 
            his wages in order to collect her entitlement pursuant to 
 
            their divorce decree.  Given these intervening factors and 
 
            the testimony of Dr. Kimelman, claimant's period of 
 
            temporary disability lasted from July 6, 1988 through 
 
            February 19, 1989 as stipulated by the parties.  Claimant 
 
            will be awarded benefits on that basis.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            order
 
            THEREFORE, it is ordered:
 
            That Air Con and Allied shall pay to claimant temporary 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            total disability for the period of time beginning on July 6, 
 
            1988, and ending on February 19, 1989 at the rate of three 
 
            hundred eighty-two and 96/100 dollars ($382.96).  As these 
 
            benefits have accrued, they shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30 (1991).
 
            That Air Con and Allied shall have a credit in the amount of 
 
            one hundred four (104) weeks against any amounts owed.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            That Air Con and Allied shall file claim activity reports as 
 
            required by rule 343 IAC 3.1.
 
            Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa 50311
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Mr. Brian L. Campbell
 
            Attorney at Law
 
            801 Grand Ave., Ste 3700
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1801
 
            Filed March 27, 1992
 
            Byron K. Orton
 
            EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            THEODORE R. ROBERTS,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892153
 
            AIR CON MECHANICAL CORP.,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1801
 
            Claimant temporarily aggravated previous back condition.  He 
 
            was awarded temporary total disability for approximately 32 
 
            weeks.  After viewing surveillance tapes, both treating 
 
            physician and physical therapist concluded that their 
 
            functional evaluations were not valid.  Claimant failed to 
 
            overcome this evidence and was not awarded any permanent 
 
            disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed July 16, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            THEODORE R. ROBERTS,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 892153
 
            AIR CON MECHANICAL CORP.,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            ALLIED MUTUAL INSURANCE  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant temporarily aggravated previous back condition.  He 
 
            was awarded temporary total disability for approximately 32 
 
            weeks.  After viewing surveillance tapes, both treating 
 
            physician and physical therapist concluded that their 
 
            functional evaluations were not valid.  Claimant failed to 
 
            overcome this evidence and was not awarded any industrial 
 
            disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT FRANKER,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 892484
 
         
 
         JOHN MORRELL & CO.,                     A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
                                                       F I L E D
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,                                     MAR 20 1990
 
         
 
              Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Robert Franker, against John Morrell & Co., employer, and 
 
         National Union Fire Insurance Company, insurance carrier, 
 
         defendants, to recover benefits as a result of an alleged injury 
 
         sustained on May 10, 1988.  This matter came on for hearing 
 
         before the deputy industrial commissioner in Sioux City, Iowa, on 
 
         February 8,.1990. The record consists of the testimony of 
 
         claimant, claimant's wife, Evelyn Franker, and Renee Welte; and 
 
         Joint Exhibits 1 and 2.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution as set out in the prehearing 
 
         report are:
 
         
 
              1.  Whether claimant's alleged disability is causally 
 
         connected to his May 10, 1988 injury; and
 
         
 
              2.  The nature and extent of claimant's permanent 
 
         disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a 1971 high school graduate earning 
 
         C's and D's in English and math.  He said he received A's and B's 
 
         in shop classes.  Claimant described his work history basically 
 
         involved washing cars, doing tune-ups and oil changes for a Ford 
 
         dealer; working for a service station; for others doing front end 
 
         alignments, tune-ups, tire repair, brake repair, pulling out 
 
         transmissions, driving a truck, welding and painting engines, 
 
         changing truck cabs, rear ends and transmissions; and working 
 
         three to four weeks at IBP sharpening knives until he began 
 
         working for defendant employer in 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said he was injured in 1979 when a tire slipped out 
 
         of his hand and hit him in the chest.  Claimant also stated he 
 
         had a pinched nerve in his back around this time and contended he 
 
         was born with it.  He was off one year and received no workers' 
 
         compensation.  Claimant said he incurred no permanent problems 
 
         from this injury.  Claimant indicated he has had some low back 
 
         trouble since his 1979 incident but has had no medical treatment 
 
         since 1979 due to this injury.
 
         
 
              Claimant said he received an injury while working for S.W. 
 
         Truck Parts in Kansas.  Claimant said he worked for this company 
 
         five and one-half to six years from 1981 to 1987.  Claimant said 
 
         he incurred this injury when a tire blew up breaking his nose, 
 
         separating his breast bone and ribs.  He said he did not lose any 
 
         time from work because of this injury.  Claimant said this job 
 
         involved heavy lifting.
 
         
 
              Claimant testified he began working for defendant employer 
 
         in 1987 on the kill floor at $6.10 to $6.25 per hour.  He said he 
 
         worked one week and quit.  Claimant stated he began working for 
 
         defendant employer again in August 1987 at the same wage, but 
 
         started at a fork lift and loading dock job which did not require 
 
         lifting.  Claimant said he moved from this job to the knife room 
 
         as defendant employer wanted claimant to set up a more complete 
 
         knife room.  Claimant described the manner of sharpening knives 
 
         indicating he sharpened 360 to 425 knives in one work shift. 
 
         Claimant said a shift involved ten hours with one-half hour for 
 
         lunch.  Claimant testified he was using a knife sharpening 
 
         machine on this job approximately six months when he first 
 
         noticed his wrists and fingers started giving him problems.  He 
 
         reported this to a nurse who sent him to Milton Grossman, M.D., 
 
         the company doctor.  Claimant said he returned to the knife room 
 
         but his problems became worse.  Claimant said he went back to the 
 
         doctor after approximately two to three weeks, where he saw 
 
         William Krigsten, M.D., Dr. Grossman's associate.  Claimant 
 
         emphasized his pain was severe in his hands, arms and elbows at 
 
         that time. Claimant said he missed a few days of work, off one 
 
         day and back the next.  Claimant stated defendant employer gave 
 
         him a light duty job for one day and then assigned him to the 
 
         kill floor pulling bellies with a hook.  Although claimant was 
 
         not to use his right hand, he said he had to use both hands.  
 
         Claimant related the pain became worse in his left hand and went 
 
         up into his arm. Claimant said he went to Dr. Krigsten again.
 
         
 
              Claimant stated he was then assigned to the cut floor 
 
         working with 200 pound hinds and scooping fat off the floor even 
 
         though he had restrictions of 10 pounds lifting in his right hand 
 
         and 30 pounds lifting in his left hand.  Claimant said he walked 
 
         off the line as both arms, shoulders and neck were hurting.
 
         
 
              Claimant last worked for defendant employer in September 
 
         1988.  Claimant indicated he was no longer able to do the work. 
 
         Claimant said defendant employer told him when they terminated 
 
         him that claimant could not do his job.  Claimant said he told 
 
         them he would like the knife room job again.  Claimant could 
 
         recall no other job defendant employer had at that time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified he was off work from September 1988 until 
 
         he found a job with Goodwill in May 1989.  Claimant said he 
 
         received workers' compensation until it ended and then received 
 
         some unemployment benefits.  Claimant indicated no one would hire 
 
         him prior to May 1989 due to his accident.  Claimant stated he 
 
         was still having physical problems in the spring of 1989 but was 
 
         looking for jobs by making two contacts per week.
 
         
 
              Claimant said he sought vocational rehabilitation in March 
 
         or April 1989 at Des Moines Vocational Rehabilitation.  Claimant 
 
         related they tried to help but he could not do a lot.  Claimant 
 
         acknowledged that he did not go through all the things they 
 
         offered.
 
         
 
              Claimant said he asked the doctor for a work release so that 
 
         he could get a job.  Claimant testified he worked for Goodwill 
 
         several months driving, picking up and making deliveries for 
 
         $5.50 to $6.00 per hour.  Claimant said he got along okay with 
 
         the handicapped but he had to help load the truck and lift 
 
         furniture. Claimant said he quit the Goodwill job in October 1989 
 
         because of dissatisfaction with the job as it was not going 
 
         anywhere. Claimant acknowledged he injured his head and neck in 
 
         September of 1989 while on this job when his head hit the truck 
 
         roof as the truck hit a bump.  Claimant said he lost five days of 
 
         work. Claimant stated he has no current problems from that 
 
         accident.
 
         
 
              Claimant testified he started working for Ballow Brickyard 
 
         on October 19, 1989 after answering an ad in the paper.  Claimant 
 
         indicated he was still under the care of his family doctor at 
 
         that time but did not check with the doctor to see if it was okay 
 
         to work.
 
         
 
              Claimant said that part of his work for the brick company 
 
         involved lifting one or more bricks up to a total of 30 to 35 
 
         pounds.  He indicated if it was a busy day he would have problems 
 
         with his arms, shoulder or neck area.  Claimant said he cannot 
 
         rake the yard, yank or pull because of his condition.  Claimant 
 
         related he doesn't complain at work because he needs the money; 
 
         otherwise, he would lose his home.
 
         
 
              Claimant admitted his April 1989 answer to interrogatory No. 
 
         4 indicated no prior injury.  His attorney told him he should put 
 
         "none" if that injury didn't pertain to his present injury. 
 
         Claimant also denied prior injuries in his Morrell job 
 
         application.  Claimant acknowledged that he testified in his 
 
         deposition that he has had back problems his whole life.  He 
 
         indicated he was kept out of the air force because of his back 
 
         condition.  He said he was born with a back condition.
 
         
 
              Claimant admitted he used to sell and take care of horses 
 
         but has not bought or sold a horse since the fall of 1989.  He 
 
         acknowledged he testified in his deposition that he owned 20 
 
         horses at that time but emphasized he didn't carry the feed but 
 
         did the chores.  At that time, he indicated he did carry bales of 
 
         hay to the horses.  Claimant emphasized his family helped him.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Evelyn Franker, claimant's wife of 17 years, testified 
 
         claimant cannot do things now that he could before his May 10, 
 
         1988 injury.  She said they had just bought an acreage before 
 
         claimant's injury and claimant and his brother-in-law were going 
 
         to build on it, but have not been able to due to claimant's 
 
         injury.  Mrs. Franker indicated claimant cannot do much on the 
 
         acreage unless his brother-in-law helps.  She related her husband 
 
         does little around the house and mainly watches television.  She 
 
         said they are behind in payments now, but were not before his 
 
         injury.  She said claimant has developed a short temper and uses 
 
         a heating pad at nights since his injury.  She indicated she rubs 
 
         him down twice a week with Ben Gay.
 
         
 
              Mrs. Franker acknowledged claimant has had past back 
 
         problems and low backaches once in a while.  She said claimant 
 
         injured his back six to eight years ago and also has a low back 
 
         birth defect.
 
         
 
              Renee Welte testified she has been the director of 
 
         industrial resources at Goodwill Industries since May 1989 and 
 
         prior to that time was a contract supervisor for Goodwill 
 
         beginning April 1988. Welte said claimant answered an ad and was 
 
         hired as a driver.  She said the job was considered a heavy 
 
         duty-type job and described it as including driving straight 
 
         trucks in town and semi trucks out of town, loading and 
 
         unloading, and switching empty trailers for loaded trailers.  
 
         Welte said she observed claimant working and loading and 
 
         unloading at least once a week.  She said the type of things 
 
         loaded and unloaded involved bags of clothes, toys, boxes of 
 
         dishes, and some furniture.  She stated if an object was heavy, 
 
         claimant would have a helper.  She said that if an object weighed 
 
         over 100 pounds, a person was to have help.  Welte related she 
 
         saw claimant lifting chairs and sofas and performing heavy 
 
         lifting but never in excess of 100 pounds.  Welte said claimant 
 
         obtained a doctor's release on September 19, 1989, indicating no 
 
         restrictions as a result of claimant's neck injury which occurred 
 
         when his head hit the top of the truck cab while driving over a 
 
         bump.  Welte emphasized that prior to bumping his head at work, 
 
         claimant had no complaints.  She said claimant was off work 
 
         September 8 to 18, 1989 because of the neck injury.  Welte said 
 
         claimant was required to have and pass a DOT medical examination 
 
         in order to drive for Goodwill.  Claimant also received a release 
 
         from his family doctor, M.D. Van Patten.  Welte stated claimant 
 
         worked from June 13, 1989 to October 13, 1989, during which time 
 
         claimant received several warnings or reprimands.  She disclosed 
 
         claimant quit instead of accepting a one week's suspension for 
 
         using the wrong fuel and not following instructions.
 
         
 
              Medical notes on claimant's John Morrell workers' 
 
         compensation form signed by Dr. Grossman indicates on May 11, 
 
         1988, regarding claimant's physical findings:  "Pain on dorsum of 
 
         right long fingers.  Cannot completely flex right hand.  Dorsum 
 
         of hand swollen.  Diagnosis:  Tendinitis - dorsum of right hand 
 
         and wrist."  (Joint Exhibit 1, page 14)  Claimant's records 
 
         continue to reflect similar problems on visits of May 16, 1988, 
 
         May 31, 1988 and June 13, 1988 with certain restrictions set out 
 
         therein. On June 20, 1988, claimant was also complaining of pain 
 
         in his right shoulder and wrist  (Jt. Ex. 1, p. 21)  On July 2, 
 
         1988, claimant sought emergency treatment at St. Luke's Hospital 
 
         for complaints of aching all over, vomiting and headache.  David 
 
         W. Lucke, M.D., of the Marion Health Center, wrote, in part, on 
 
         September 21, 1988:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IMPRESSION:
 
         
 
              1.   Recurrent synovitis and digital swelling of the upper 
 
              extremities associated with physical  activity.
 
              
 
              PLAN:
 
              
 
              1.  I've told this gentleman that he cannot continue to do 
 
              this.  Since his problem does seem to be physical activity 
 
              associated I think he needs to retrain for a job where he 
 
              doesn't have vigorous physical activity involving the upper 
 
              extremities.  He agrees.
 
              
 
                   ....
 
              
 
              4.  The patient will return to the company Personnel Dept. 
 
              and advise them of my recommendations.  I think he would 
 
              like,to stay with the same company but it's apparent that 
 
              medically he cannot continue doing what he's doing.
 
         
 
         (Jt. Ex. 1, p. 44)
 
         
 
              On November 14, 1988, Dr. Lucke wrote:
 
         
 
                  As you know, I have evaluated Mr. Franker on 2 
 
              occasions this fall for complaints of wrist pain.  His 
 
              clinical finding has been that of mild synovitis about the 
 
              wrist of each upper extremity that seemed to have been 
 
              exacerbated by vigorous physical activity at work.  With 
 
              rest, his synovitis has improved.  His examination and 
 
              clinical history have not found any other underlying 
 
              rheumatologic disorder to explain this synovitis.
 
         
 
                  It is therefore my impression that Mr. Franker does 
 
              have a "overuse" syndrome manifested by synovitis.
 
                  
 
                  I would not think it appropriate to render a permanent 
 
              disability rating at this time.  At his relatively young 
 
              age, I think vocational rehabilitation or training in an 
 
              area that requires lesser physical activity of the wrist 
 
              would be in order.  He certainly is a bright young man and 
 
              has many years to contribute and I think training in another 
 
              area would certainly be in his best interest long term.
 
                  
 
         (Jt. Ex. 1, p. 55)
 
         
 
              On November 23, 1988, William M. Krigsten, M.D., wrote:
 
         
 
                  I examined this man this date.  Following are my 
 
              findings:  The EMG is compatible with mild right carpal 
 
              tunnel.  The left is normal on 11-18-88.  Patient doesn't 
 
              want to go back to work.  He is given 2% permanent 
 
              disability of the right hand.  He is a hazard to work at 
 
              John Morrell and Co.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 1, p. 58)
 
         
 
              On December 15, 1988, Dr. Lucke wrote:  "In response to your 
 
         letter of December 13, 1988 it is impossible for me to make a 
 
         precise disability determination.  It would appear that Dr. 
 
         Krigsten's assessment of a 2% permanent disability of the right 
 
         hand is certainly reasonable in my opinion."  (Jt. Ex. 1, p. 59)
 
         
 
              On January 4, 1989, Dr. Krigsten wrote:
 
         
 
                  This is in response to your request regarding the above 
 
              employee's working restrictions.
 
                  
 
                  As long as he continues to work at John Morrell & 
 
              Company, Mr. Franker will continue to have discomfort and 
 
              not be able to work using any type knife.
 
                  
 
                  He could work if given labor which does not require 
 
              using any right hand or continued flexion of his wrists.
 
                  
 
                  In my opinion, surgical correction would not be 
 
              successful.
 
         
 
         (Jt. Ex. 1, p. 62)
 
         
 
              On February 14, 1989, Dr. Lucke's office notes reflect 
 
         claimant "has good range of motion at the elbows and the 
 
         shoulders.  Doesn't have any hot or tender joints....Have 
 
         reviewed the EMG studies done by Case which finds borderling 
 
         [sic] delay of the right median.nerve on the right wrist 
 
         suggesting mild right carpal tunnel syndrome.  (Jt. Ex. 1, p. 63)
 
         
 
              On April 12, 1989, Joel T. Cotton, M.D., a neurologist, 
 
         wrote a detailed report which, in part, contained the following:
 
         
 
              This patient's neurological examination at this time is 
 
              normal.  There is no evidence of neurological injury at this 
 
              time.  A 2% disability rating has been given on the basis of 
 
              abnormalities detected on a nerve conduction study.  I find 
 
              no loss of muscular strength, dexterity, or coordination in 
 
              either upper extremity, proximally or distally.  He has 
 
              specifically no nerve injury in his neck or upper 
 
              extremities to account for his complaint of shoulder pain.  
 
              In the presence of an otherwise normal neurological 
 
              examination, I see no reason that this individual's 
 
              activities need to be restricted in any manner.  He appears 
 
              to have achieved a state of permanency.  I do not anticipate 
 
              that he should require any surgical procedures for the 
 
              complaints that he describes.
 
         
 
         (Jt. Ex. 1, p. 65)
 
         
 
              On December 15, 1989, John J. Dougherty, M.D., an orthopedic 
 
         surgeon., wrote, in part:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                  In conclusion, I have read the reports from Dr. 
 
              Krigsten, Dr. Lucke and Dr. Cotton,  I would agree 100%. 
 
              Basically I didn't find much wrong with this patient.  He 
 
              does have a little slowing on the EMG, consistent with 
 
              possible mild carpal tunnel syndrome.  It does not appear to 
 
              me that this exists and I would not recommend any surgery 
 
              based on that type of a report.  As I mentioned, this 
 
              patient was working at the Goodwill, now he's working at a 
 
              brickyard. Certainly does not appear that any further 
 
              treatment is indicated on this patient.  I would concur that 
 
              I would be inclined to give him 2% permanent partial 
 
              impairment of his right hand with reference to his delayed 
 
              EMG.
 
                  
 
                  Basically I don't see where he's sustained any 
 
              permanent disability with reference to the other areas.
 
         
 
         (Jt. Ex. 1, p. 68-69)
 
         
 
              Claimant went through a vocational rehabilitation 
 
         examination and evaluation.  Joint Exhibit 2, page 1 through 34 
 
         contains the results of various tests.  Nothing more than this 
 
         reference will be set out herein as it is not necessary due to 
 
         the nature of this decision.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 10, 1988 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              Iowa Code section 85.34(2)(1), in part, provides:
 
         
 
              For all cases of permanent partial disability compensation 
 
              shall be paid as follows:
 
         
 
              ....
 
         
 
              (1)  For the loss of a hand, weekly compensation during one 
 
              hundred ninety weeks.
 
         
 
              This 48-year-old claimant is presently working and appears 
 
         to be able to do the job without difficulty.  Claimant has 
 
         substantial subjective complaints and contends he is not able to 
 
         do many things he could do prior to his injury on May 10, 1988. 
 
         The medical evidence from several doctors, including orthopedic 
 
         and neurological specialists have concluded that claimant has a 2 
 
         percent permanent partial disability to his right hand.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The only issues are whether claimant's alleged disability to 
 
         his right hand and shoulder result in a body as a whole 
 
         disability and the extent of claimant's permanent disability.  
 
         Defendants contend there is no permanent impairment to claimant's 
 
         body as a whole and that the only impairment or disability to 
 
         which they agree is a 2 percent disability to claimant's right 
 
         hand for which they have paid the statutory rate.
 
         
 
              The undersigned is surprised that this matter proceeded this 
 
         far with the medical so clearly showing through the reports of 
 
         Dr. Krigsten and Dr. Dougherty, orthopedic surgeons; Dr. Cotton, 
 
         a neurologist; and Dr. Lucke, a general practitioner, that 
 
         claimant has a 2 percent permanent impairment to his right hand.  
 
         Although there is evidence that claimant has had back problems 
 
         all his life, the doctors do not even indicate any problem with 
 
         claimant's back in any respect.  There is also evidence that 
 
         claimant has been performing duties at work including lifting 
 
         that would be contrary to claimant's contention that he is unable 
 
         to do certain lifting.
 
         
 
              Claimant has the burden of proof to show a causal connection 
 
         between his alleged shoulder and body as a whole impairment and 
 
         his May 10, 1988 injury.  Claimant has totally failed in this 
 
         respect.  There has not been an issue as to the causal connection 
 
         of claimant's 2 percent permanent disability to his right hand 
 
         and his May 10, 1988 injury.  Defendants have not denied that 
 
         there has been a scheduled injury herein.  Where the dispute 
 
         comes in is claimant's contention that there is a shoulder-neck 
 
         injury and that claimant's May 10, 1988 injury is a body as a 
 
         whole injury.
 
         
 
              There is no necessity to further discuss the evidence.  The 
 
         overwhelming uncontroverted medical evidence speaks for itself. 
 
         Claimant takes nothing further from these proceedings.  
 
         Defendants have already paid all the stipulated healing period 
 
         and 3.8 weeks of permanent partial disability benefits, which 
 
         represent a 2 percent permanent partial disability to claimant's 
 
         right hand as provided in Iowa Code section 85.34(2)(1)
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has failed to prove he has a shoulder and neck 
 
         injury resulting in a body as a whole impairment as a result of 
 
         his May 10, 1988 work injury.
 
         
 
              2.  Claimant has received a 2 percent permanent partial 
 
         disability to his right hand as a result of his May 10, 1988 work 
 
         injury.
 
         
 
              3.  The parties stipulated that claimant has received all 
 
         healing period benefits to which he is entitled.  Claimant has 
 
         been paid 3.8 weeks of permanent partial disability benefits, 
 
         representing a 2 percent permanent impairment to claimant's right 
 
         hand.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to prove his alleged shoulder and neck 
 
         condition is causally connected to his May 10, 1988 injury.
 
         
 
              Claimant has received a 2 percent permanent partial 
 
         disability to his right hand which is causally connected to his 
 
         May 10, 1988 work injury.
 
         
 
              As stipulated by the parties, claimant has been paid all 
 
         healing period benefits to which he is entitled as a result of 
 
         his May 10, 1988 injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant is entitled to three point eight (3.8) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         two hundred thirteen and 24/100 dollars ($213.24), which benefits 
 
         have already been paid to claimant and for which defendants shall 
 
         receive credit.
 
         
 
              Claimant has been paid all the healing period benefits to 
 
         which claimant is entitled and for which defendants are to be 
 
         given credit.
 
         
 
              Claimant takes nothing further from these proceedings.
 
         
 
              Claimant and defendants shall equally pay the costs of this 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 20th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             BERNARD J. O'MALLEY
 
                                             DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr William L  Miller
 
         Attorney at Law
 
         P 0 Box 3107
 
         Sioux City, IA  51102
 
         
 
         Mr Thomas Plaza
 
         Attorney at Law
 
         701 Pierce St., Ste 200
 
         P 0 Box 3086
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Sioux City, IA  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108.50; 5-1803.1; 5-1803
 
                                            5-2502; 5-2503
 
                                            Filed March 20, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT FRANKER,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 892484
 
         
 
         JOHN MORRELL & CO.,                         A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1108.50; 5-1803.1
 
         
 
              Claimant failed to show his injury extended beyond his right 
 
         hand to his body as a whole.
 
         
 
         5-1803
 
         
 
              Claimant incurred a 2% permanent partial disability to his 
 
         right hand, which defendants had paid prior to the hearing.  No 
 
         further permanent partial disability was found.
 
         
 
         5-2502
 
         
 
              Iowa Code section 85.39 exam was approved.
 
         
 
         5-2503
 
         
 
              Iowa Code section 85.27 medical benefits were denied.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                            :
 
            PATRICIA KLAAS,                 :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 892509
 
            SPORTS PAGE,                    :
 
                                            :    A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :       D E C I S I O N
 
            and                             :
 
                                            :
 
            WEST BEND MUTUAL INSURANCE CO., :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Patricia 
 
            Klaas, claimant, against Sports Page, employer, and West 
 
            Bend Mutual Insurance Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on July 23, 1988.  On March 31, 1993, a hear
 
            ing was held on claimant's petition and the matter was con
 
            sidered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have stip
 
            ulated to the following matters:
 
            
 
                 1.  On July 23, 1988, claimant received an injury aris
 
            ing out of and in the course of employment with Sports Page.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            or healing period benefits in this proceeding.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is scheduled member dis
 
            ability to the hand.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of January 15, 1990.
 
            
 
                 5.  The portion of the hearing report pertaining to 
 
            rate of compensation was completed but the parties failed to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            encircle the area which indicated that these matters were 
 
            agreed to.  It is assumed from a review of the agency file 
 
            that these matters were not at issue.
 
            
 
                 Therefore, it appears that the parties are stipulating 
 
            that at the time of injury claimant's gross rate of weekly 
 
            compensation was $118; she was married; and she was entitled 
 
            to five exemptions.  Consequently, claimant's weekly rate of 
 
            compensation is $86.49 according to the Industrial Commis
 
            sioner's published rate booklet for this injury.
 
            
 
                                          ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 On or about July 23, 1988, claimant injured her hand 
 
            while working as a waitress for defendant employer.  The 
 
            injury occurred when she fell while carrying dishes and suf
 
            fered lacerations of her right hand.  The injury also 
 
            involved nerves in the hand which affected the fingers.  The 
 
            occurrence of this injury is not in dispute.
 
            
 
                 Claimant was initially treated by R. Johnson, M.D., but 
 
            he later transferred care to J. Ganske, M.D., who performed 
 
            two surgeries on the hand.  The extent of healing period is 
 
            also not in dispute.
 
            
 
                 Furthermore, it is not disputed that claimant suffered 
 
            permanent disability to the hand.  The dispute involves the 
 
            extent of this disability.  Only two physicians have rated 
 
            the permanent impairment from the injury.  Dr. Ganske opines 
 
            that due to loss of sensation to the ring and little finger, 
 
            claimant has suffered a one percent permanent partial dis
 
            ability.  He does not indicate how he arrived at this rating 
 
            or whether he used an impairment rating guide to assist him 
 
            in this rating.  Another physician, Ronald Bergman, D.O., 
 
            rated claimant as suffering from a seven percent permanent 
 
            partial impairment to the right hand.  He likewise did not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            indicate whether he used any guide in this rating.  However, 
 
            he did explain that he rated the loss of sensation to each 
 
            finger and then converted this to a hand rating and then 
 
            combined the two ratings into a single rating.
 
            
 
                 Dr. Bergman's rating is the most credible and is given 
 
            the most weight even though he is not the treating physi
 
            cian.  Both Ganske and Bergman have the same specialty, 
 
            plastic and reconstructive surgery.  Consequently, their 
 
            relative qualifications appear equal.  However, Dr. Ganske 
 
            did not explain how he arrived at his rating.  In the expe
 
            rience of this deputy, it is apparent that Dr. Bergman used 
 
            a guide for his rating as he converted finger impairments to 
 
            the hand and then combined two ratings into one.  This is 
 
            very similar to the manner of ratings using the AMA guide
 
            lines.  Given the more extensive analysis and explanation, 
 
            Dr. Bergman's rating is more credible.  Therefore, the work 
 
            injury of July 23, 1988 is found to be a cause of a seven 
 
            percent permanent partial impairment to the right hand.
 
            
 
                 There is also a dispute with reference to medical 
 
            expenses.  Claimant testified that she was directed to pur
 
            chase or needed to purchase the non-prescription items 
 
            listed in the hearing report such as band aids, neosporin, a 
 
            sling, gauze, lotion, hydrogen peroxide and tylenol.  Defen
 
            dants have refused to pay for these items.  Although, she 
 
            could not be specific in her recollection of costs, 
 
            claimant's testimony is uncontroverted.  It is found that 
 
            these were necessary medical expenses.  The amounts 
 
            requested are found to be reasonable for the items 
 
            purchased.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  A permanent partial disability is either scheduled 
 
            or unscheduled.  A scheduled disability is evaluated by the 
 
            functional method.  The industrial method is used to evalu
 
            ate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
            252 Iowa 128, 133 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. Delong's 
 
            Sportswear 332 N.W.2d 886, 997 (Iowa 1983).  When the result 
 
            of an injury is loss to a scheduled member, the compensation 
 
            payable is limited to that set forth in the appropriate sub
 
            division of Code section 85.34(2).  Barton v. Nevada Poultry 
 
            Company, 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss of use" 
 
            of a member is equivalent to "loss" of the member.  Moses v. 
 
            National Union C.M. Co., 184 N.W. 746 (1922).  Pursuant to 
 
            Code section 85.34(2)(u), the industrial commissioner may 
 
            equitably prorate compensation payable in those cases where 
 
            the loss is something less than that provided for in the 
 
            schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 
 
            (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a seven percent permanent loss of use of her hand, a 
 
            scheduled member.  Based on such a finding, claimant is 
 
            entitled to 13.3 weeks of permanent partial disability bene
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            fits under Iowa Code section 85.34(2)(l) which is seven per
 
            cent of 190 weeks, the maximum allowable weeks of disability 
 
            for an injury to the hand in that subsection.
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).  It was found that the non-prescription items were 
 
            reasonable and necessary to treat the injury.  These 
 
            expenses will be awarded accordingly.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant thirteen point 
 
            three (13.3) weeks of permanent partial disability benefits 
 
            at a rate of eighty-six and 49/l00 dollars ($86.49) per week 
 
            from January 15, 1990.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report totaling two hundred sixty-five and 
 
            no/l00 dollars ($265.00).
 
            
 
                 3. Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Theodore R. Hoglan
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            34 South First Avenue
 
            Marshalltown, Iowa  50158
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
                         
 
 
 
                                              5-1803
 
                                              Filed April 27, 1993
 
                                              LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            PATRICIA KLAAS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                             File No. 892509
 
            SPORTS PAGE,     
 
                                         A R B I T R A T I O N
 
                 Employer,   
 
                                            D E C I S I O N
 
            and         
 
                        
 
            WEST BEND MUTUAL INSURANCE CO.,
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
             
 
             Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JOHN W. BUSCHLING,                 :
 
                                               :        File No. 892512
 
                 Claimant,                     :
 
                                               :          A P P E A L
 
            vs.                                :
 
                                               :        D E C I S I O N
 
            GRIFFIN WHEEL CO.,                 :
 
                                               :
 
                 Employer,                     :
 
                 Self-Insured,                 :
 
                 Defendant.                    :
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
 
 
                                 ISSUES
 
 
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            I.  Did deputy commissioner err by ignoring evidence 
 
            relating claimant's complaints of pain to a nonwork-related 
 
            cervical herniation.
 
            II.  In determining claimant's percentage of industrial 
 
            disability, did the deputy commissioner err in improperly 
 
            weighting the factors relevant to such determination or in 
 
            failing to take into account other relevant factors.
 
 
 
                             FINDINGS OF FACT
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed February 22, 1991 are adopted as final agency 
 
            action.
 
                                CONCLUSIONS OF LAW
 
 
 
            The conclusions of law contained in the proposed agency 
 
            decision filed February 22, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            *****
 
            As the claimant has shown that the work injury was a cause 
 
            of a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member 
 
            disabilities, the degree of disability under this provision 
 
            is not measured solely by the extent of a functional 
 
            impairment or loss of use of a body member.  A disability to 
 
            the body as a whole or an "industrial disability" is a loss 
 

 
            
 
            Page   2
 
            
 
            
 
            of earning capacity resulting from the work injury.  
 
            Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 
 
            N.W. 899 (1935).  A physical impairment or restriction on 
 
            work activity may or may not result in such a loss of 
 
            earning capacity.  The extent to which a work injury and a 
 
            resulting medical condition has resulted in an industrial 
 
            disability is determined from examination of several 
 
            factors.  These factors include the employee's medical 
 
            condition prior to the injury, 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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            In the case sub judice, it was found that claimant has 
 
            suffered a 20 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 100 weeks of permanent 
 
            partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is 20 percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that 
 
            subsection.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            That defendant shall pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            three hundred twelve and 68/l00 dollars ($312.68) per week 
 
            from December 13, 1988.
 
            That as stipulated, defendant shall pay to claimant healing 
 
            period benefits from July 18, 1988 through December 12, 1988 
 
            at the rate of three hundred twelve and 68/l00 dollars 
 
            ($312.68) per week.
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            That defendant shall pay interest on weekly benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            That defendant shall file activity reports on the payment of 
 
            this award as requested by this agency pursuant to rule 343 
 
            IAC 3.l.
 
            Signed and filed this ____ day of November, 1992.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk,  IA  52632
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau St
 
            Keokuk,  IA  52632
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed November 23, 1992
 
                                             Byron K. Orton
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JOHN W. BUSCHLING,                 :
 
                                               :        File No. 892512
 
                 Claimant,                     :
 
                                               :          A P P E A L
 
            vs.                                :
 
                                               :        D E C I S I O N
 
            GRIFFIN WHEEL CO.,                 :
 
                                               :
 
                 Employer,                     :
 
                 Self-Insured,                 :
 
                 Defendant.                    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Deputy's award of 20 percent industrial disability to 
 
            claimant with neck injury affirmed on appeal.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN W. BUSCHLING,            :
 
                                          :        File No. 892512
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            GRIFFIN WHEEL CO.,            :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by John W. 
 
            Buschling, claimant, against Griffin Wheel Company, employer 
 
            (hereinafter referred to as Griffin), a self-insured defen
 
            dant, for workers' compensation benefits as a result of an 
 
            alleged injury on December 15, 1987.  On October 11, 1990, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On December 5, 1987, claimant received an injury 
 
            which arose out of and in the course of employment with 
 
            Griffin.  (This date of injury is an apparent amendment to 
 
            the petition which is concurred in by defendant.)
 
            
 
                 2.  Claimant is entitled to temporary total 
 
            disability/healing period benefits from July 18, 1988 
 
            through December 12, 1988.
 
            
 
                 3.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $312.68.
 
            
 
                 4.  All requested medical benefits have been or will be 
 
            paid by defendant.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding at the time of hearing is the extent 
 
            of claimant's entitlement to permanent disability benefits.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.  Specifically, the testimony of 
 
            claimant and his family is found truthful with reference to 
 
            the extent of claimant's pain and limitations on work and 
 
            nonwork activities.
 
            
 
                 Claimant has worked for Griffin Wheel for over 10 years 
 
            and continues to do so at the present time.  At the time of 
 
            injury claimant was a tube assembler, but following the 
 
            injury, a physician imposed a 50 pound lifting restriction.  
 
            As a result of this restriction, claimant was transferred to 
 
            a lighter duty job of mold cleaner.  At present, claimant is 
 
            earning 70 cents per hour less in his mold cleaner job than 
 
            be would be earning as a tube assembler.
 
            
 
                 The injury occurred while claimant was performing over
 
            time work rebuilding furnaces at Griffin Wheel.  The work 
 
            injury herein involves either a rotator cuff injury or a 
 
            soft tissue injury of the shoulder blade or scapulae.  It is 
 
            found that the injury extends into the body as a whole in 
 
            any event.  Therefore, the exact nature of the injury is not 
 
            important to the issues in this case.  Claimant was ini
 
            tially treated by Robert Kemp, M.D., who diagnosed a shoul
 
            der strain and treated claimant with rest, physical therapy 
 
            and medication.  Claimant was later evaluated by John Havey, 
 
            M.D., a board certified neurologist, who diagnosed a rotator 
 
            cuff injury with subacromial bursitis.  Another specialist, 
 
            O. Gerald Orth, M.D., a neurosurgeon, also felt that 
 
            claimant had an injury to the shoulder and could not rule 
 
            out a rotator cuff tear.  Claimant was most recently treated 
 
            by Philip Wilson, M.D., whose specialty is unknown.  Dr. 
 
            Wilson opined that claimant has only a soft tissue injury in 
 
            the scapulae.  Dr. Wilson received a consultive opinion from 
 
            Walid Hafex, M.D., another neurosurgeon, who agrees with Dr. 
 
            Wilson's assessment.  Regardless of the diverse opinions as 
 
            to the exact nature of the injury, all physicians agree that 
 
            the location of the injury, albeit soft tissue or not, is 
 
            above the arm and into the shoulder or the body.  Even Dr. 
 
            Wilson agrees that the soft tissues injured involve struc
 
            tures attached to the spine.  All physicians have related 
 
            claimant's continuing symptoms and the treatment of these 
 
            symptoms to the work injury in December 1987.
 
            
 
                 As a result of the work injury of December 5, 1987, 
 
            claimant has suffered a significant permanent partial 
 
            impairment to the body as a whole.  Claimant reached maximum 
 
            healing and returned to work on December 13, 1988.  Claimant 
 
            states that he continues to experience difficulties while 
 
            performing his daily physical activities.  Claimant must 
 
            modify his work activities to stay within restrictions.  At 
 
            times he is required to exceed these restrictions but man
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            agement at Griffin directs him not to do so.  Claimant's 
 
            family verified that claimant is very restricted during his 
 
            nonwork hours in recreational activity and home and yard 
 
            work.  Claimant states that he takes approximately 5 to 11 
 
            aspirins a day for chronic pain.  Dr. Havey opined that 
 
            claimant has an eight percent permanent partial impairment 
 
            to the body as a whole as a result of the shoulder condi
 
            tion.  Dr. Wilson declines to give a permanent partial 
 
            impairment rating stating in his deposition that this is 
 
            normally not done in his practice.  In written reports Dr. 
 
            Wilson stated that he does not wish to do so due to the lack 
 
            of objective findings.  However, Dr. Wilson has imposed a 
 
            work restriction against lifting over 50 pounds which he 
 
            feels is permanent.  Although Dr. Wilson stated that this 
 
            restriction could be lifted, this would only be following a 
 
            change of claimant's condition.  Dr. Wilson does feel that 
 
            claimant has reached maximum healing.
 
            
 
                 As a result of the injury of December 5, 1987, claimant 
 
            has suffered a 20 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was 
 
            excellent and he had no ascertainable functional impairments 
 
            or disabilities.  Claimant was able to fully perform physi
 
            cal tasks involving heavy lifting.  Due to his physical lim
 
            itations, claimant's medical condition prevents him from 
 
            returning to his former job as a tube assembler.  These 
 
            restrictions also prevent him from performing 36 out of a 
 
            total of 40 jobs at Griffin Wheel.  Claimant suffered a sig
 
            nificant loss of actual earnings as a result of his inabil
 
            ity to return to tube assembly.  On the other hand, claimant 
 
            is relatively young at age 36 and has been able to continue 
 
            working in his light duty job.  Claimant has a high school 
 
            education and past experience operating a gas station.  
 
            Claimant has past experience in carpentry work but he would 
 
            not be able to perform much of this work due to his shoulder 
 
            problems.  Claimant has considerable motivation to remain 
 
            working and is able to do so only by tolerating significant 
 
            pain.  It should be noted that this finding of loss of earn
 
            ing capacity is not dependent upon the finding of permanent 
 
            partial impairment as a work injury clearly resulted in a 
 
            transfer to a lower paying job at Griffin Wheel.
 
            
 
                                conclusions of law
 
            
 
                 It is the situs of the injury, not the disability, 
 
            which governs whether the injury extends into the body as a 
 
            whole or is limited to one of the extremities.  See Farmland 
 
            Foods, Inc. v. Ten Eyck, Court of Appeals decision filed 
 
            January 29, 1986; Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 248 (Iowa 1980); Alm v. Morris Barick Cattle Co., 240 
 
            Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber 
 
            Company, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause of a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, the degree of disability under this provision is not 
 
            measured solely by the extent of a functional impairment or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  The extent to which a work injury and a resulting 
 
            medical condition has resulted in an industrial disability 
 
            is determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, 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.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 20 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 100 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 20 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred twelve and 68/l00 dollars ($312.68) per 
 
            week from December 13, 1988.
 
            
 
                 2.  As stipulated, defendant shall pay to claimant 
 
            healing period benefits from July 18, 1988 through December 
 
            12, 1988 at the rate of three hundred twelve and 68/l00 
 
            dollars ($312.68) per week.
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.l.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau St
 
            Keokuk  IA  52632
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed February 25, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN W. BUSCHLING,            :
 
                                          :        File No. 892512
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            GRIFFIN WHEEL CO.,            :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Extent of disability benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN W. BUSCHLING,            :
 
                                          :        File No. 892512
 
                 Claimant,                :
 
                                          :    M O D I F I C A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            GRIFFIN WHEEL CO.,            :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            Paragraph l of the Order portion of the arbitration decision 
 
            filed February 22, 1991, is modified by striking the words 
 
            "two hundred (200)" and inserting in lieu thereof the words 
 
            "one hundred (100)."
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau St
 
            Keokuk  IA  52632