Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN A. PAWLIK,             :
 
                                          :
 
                 Claimant,                :       File No. 892580
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Steven A. Pawlik, against Aluminum Company of 
 
            America (ALCOA).  Claimant has alleged that he sustained a 
 
            work-related injury on June 29, 1988.
 
            
 
                 This matter came on for hearing on August 1, 1991 at 
 
            Davenport, Iowa.
 
            
 
                 The record consists of testimony from the claimant and 
 
            Margaret Kundel; claimant's exhibits 15 and 16; and, 
 
            defendant's exhibits A and B.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties submit 
 
            the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on June 29, 
 
            1988 which arose out of and in the course of his employment;
 
            
 
                 2.  Whether a causal relationship exists between the 
 
            alleged injury and claimant's disability; and,
 
            
 
                 3.  Whether claimant is entitled to healing period or 
 
            temporary disability benefits or permanent partial 
 
            disability benefits.
 
            
 
                 Claimant also advances that another issue needs to be 
 
            resolved.  This issue consists of whether the participation 
 
            in a rehabilitation/physical therapy program prescribed by 
 
            the treating physician shall be maintained on the employee's 
 
            time or during the employee's work time.  The employer 
 
            objected to the issue, stating that it had not been raised 
 
            during the telephonic prehearing conference, and, that it is 
 
            not appropriate for this forum.  The defendant employer 
 
            feels that the question is best answered during labor 
 
            contract negotiations.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having presided at the hearing, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and having reviewed all of the evidence received, finds the 
 
            following facts:
 
            
 
                 Claimant, Steven Pawlik, is a high school graduate and 
 
            resides in Pleasant Valley, Iowa.  He is a single parent, 
 
            having had sole custody of his son for the past 11 years.
 
            
 
                 Claimant started working for ALCOA in 1973.  He has 
 
            worked for the company as a laborer, and has held positions 
 
            in the land and building department, as a surfacer, and as a 
 
            crane and stretcher machine operator.  He attended truckers' 
 
            school, where he learned a multitude of different types of 
 
            skills, including how to operate different types of 
 
            machines.
 
            
 
                 Claimant has been involved in several accidents, both 
 
            work related and non work related, including a motorcycle 
 
            accident and two other incidences where he hurt his low 
 
            back.  After these two incidences, the problem resolved 
 
            itself, and claimant returned to work after limited 
 
            chiropractic treatment.
 
            
 
                 From June 12, 1988 through June 19, 1988, claimant was 
 
            on vacation.  He returned to work, and his first assignment 
 
            was to move office furniture.  This involved moving four to 
 
            six cabinets, which were four feet wide by two feet thick 
 
            and four feet high up the stairs of a building.  Claimant 
 
            described that at least one of the cabinets had materials in 
 
            the file drawers.  He was assisted by two other coworkers.
 
            
 
                 Claimant stated that as he and the coworkers were 
 
            moving one particular cabinet, the cabinet was dropped, and 
 
            twisted claimant.  He felt a sharp pain in his low back, but 
 
            continued to move furniture.  He finished his work shift, 
 
            went home and returned to work the next day.  He worked a 
 
            sixteen hour shift the following two days, and a twelve hour 
 
            shift on July 4, 1988.  On this date, claimant was spreading 
 
            gravel with a shovel for an entire shift.  He stated that 
 
            this job required him to perform an extensive amount of 
 
            twisting and pulling.  He felt his lower back become very 
 
            sore, but finished his shift.
 
            
 
                 The following day, claimant could barely walk, and 
 
            called in to work to explain that he would not be coming in 
 
            due to his low back pain.  In fact, claimant came to work, 
 
            but had difficulty getting out of his car and proceeded to 
 
            return to his home.  Claimant testified that the same day, 
 
            he called into work and asked for medical assistance, but 
 
            got no response.  The evidence reveals that the first 
 
            incident report from the employer is dated July 11, 1988.  
 
            (Joint Exhibit 1, page 1).
 
            
 
                 Claimant sought chiropractic treatment from Dr. May, 
 
            who took claimant off of work until September 1, 1988.  On 
 
            July 11, 1988, claimant was seen by the company physician, 
 
            Louis Casta, M.D., who diagnosed a severe lumbar sprain with 
 
            possible sciatic radiculation bilaterally.  He referred 
 
            claimant to an orthopedist.  (Jt. Ex. 1, p. 2).
 
            
 
                 Claimant sought treatment from Arlo Brakel, M.D., on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            July 26, 1988.  Dr. Brakel ordered x-rays, and noted no 
 
            findings indicative of lumbar radiculopathy, and saw no 
 
            reason to restrict work activities.  Dr. Brakel stated that 
 
            claimant's symptamatology had largely resolved by the time 
 
            of his visit.  (Jt. Ex. 4, pp. 47-48).
 
            
 
                 Next, claimant was sent to William Irey, M.D., whom he 
 
            saw on September 16, 1988.  The history given to Dr. Irey by 
 
            claimant included the furniture moving incident, which is 
 
            the first time claimant mentioned this incident to a doctor.  
 
            Upon examination, Dr. Irey noted minimal tenderness in the 
 
            lower lumbar spine, but full range of motion and negative 
 
            straight leg raising tests.  A review of the x-rays showed 
 
            no abnormalities.  Dr. Irey noted that claimant could return 
 
            to work, but due to mild back pain, an additional two weeks 
 
            off of work, as recommended by Dr. May, would be acceptable.  
 
            (Jt. Ex. 5, p. 49).
 
            
 
                 Claimant continued with chiropractic treatment.  
 
            
 
                 In November of 1988, claimant was sent to the Quad City 
 
            Regional Spine Institute for a final evaluation.  He was 
 
            under the care of Loren Arp, LPT, and was shown to have 
 
            normal strength and endurance on the Cybex trunk 
 
            extension/flexion tests.  Mr. Arp recommended discharge from 
 
            the program.  (Jt. Ex. 6, p. 50).  
 
            
 
                 Claimant continued to undergo chiropractic treatments, 
 
            and was scheduled for a thermogram in December of 1988.  The 
 
            results of the test were obtained in January of 1989, and 
 
            indicated problems in the lumbar area with possible disc and 
 
            nerve root irritation.  Claimant was scheduled to undergo a 
 
            CT scan and an MRI in January of 1989.  These tests were 
 
            performed at the direction of Stephen Rasmus, M.D.   The 
 
            results of the CT scan of the spine showed an L5-S1 
 
            herniated disc, but Dr. Rasmus noted that it was herniated 
 
            laterally to the right, with claimant complaining of 
 
            symptoms on the left.  A straight leg raising test was 
 
            positive on the left, producing pain in the posterior thigh 
 
            and buttocks.  Dr. Rasmus did not recommend any changes in 
 
            claimant's routine of a regular back exercise program.  He 
 
            asked claimant to return for follow-up in three months.  
 
            (Jt. Ex. 2, p. 42).
 
            
 
                 At this time, claimant was under work restrictions 
 
            consisting of no lifting of more than 25 pounds, and limited 
 
            bending and twisting.
 
            
 
                 Claimant returned to Dr. Rasmus on May 15, 1989.  Dr. 
 
            Rasmus stated that claimant was progressing well, and that 
 
            work restrictions could be liberalized.  Specifically, Dr. 
 
            Rasmus stated that, "[p]rolonged repetitive lifting or 
 
            bending may produce problems in the long run, and it would 
 
            be wise to limit that when possible.  I am not going to 
 
            propose a specific work restriction otherwise."  (Jt. Ex. 2, 
 
            p. 43).
 
            
 
                 The records indicate that in May of 1989, claimant was 
 
            given permanent restrictions of lifting not more than 35 
 
            pounds with limited stooping and squatting on a repetitive 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            basis.  (Jt. Ex. 1, p. 23).
 
            
 
                 In April of 1991, claimant had a set back, and 
 
            aggravated his back condition on the job.  He was referred 
 
            to Eugene Collins, M.D., who ordered a CT scan.  The results 
 
            showed a herniated disc at the L5-S1 centrally and to the 
 
            right, with symptoms indicating an S-1 radiculopathy.  
 
            Claimant was instructed to stay off of work.  He returned to 
 
            Dr. Collins ten days later, and a lumbar laminectomy was 
 
            considered.  Claimant deferred surgery, and wanted to pursue 
 
            conservative treatment.  (Jt. Ex. 7, pp. 53-55).
 
            
 
                 Claimant was referred to Richard Roski, M.D., for 
 
            further treatment.  Dr. Roski recommended a conservative 
 
            course of treatment including physical therapy, which 
 
            claimant pursued through July of 1991.  At that point, it 
 
            was recommended he continue with physical therapy, and was 
 
            to be released to return to work in six weeks with the same 
 
            restrictions as previously imposed.  (Jt. Ex. 10, pp. 
 
            58-60).
 
            
 
                 In June of 1991, claimant was under the treatment of W. 
 
            F. Ramsey, M.D., the company physician.  At that point, 
 
            claimant complained that physical therapy was making his 
 
            back problem worse, but claimant was still opposed to 
 
            surgery.  (Jt. Ex. 11, p. 61).
 
            
 
                 Claimant continued with physical therapy, but was 
 
            restricted from certain exercises.  (Jt. Ex. 1, p. 39).
 
            
 
                 Although the parties stipulated that claimant has been 
 
            off of work from April 10, 1991 through the date of the 
 
            hearing, the only injury analyzed in this decision is the 
 
            one of June of 1988.  Any other aggravation or new injury 
 
            has not been presented for resolution in this arbitration 
 
            proceeding.
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            His final work restrictions are as follows:
 
            
 
                 LIMITATIONS:  - Lifting should be limited to 30 
 
                 pounds.
 
                          - Limited Shoveling.
 
                          - Pulling or pushing should be 
 
            limited to
 
                            objects within the weight lift 
 
            limit.
 
                          - No jobs should be repetitive 
 
            andor[sic]
 
                            for prolonged periods of time.
 
                          - Limited stooping, bending, 
 
            squatting or
 
                            twisting is permissible provided 
 
            the 
 
                            weight being handled is within the 
 
                            weight lift limit.
 
                          - Not to work in semi-stooped 
 
            position 
 
                            for long periods.
 
                          - Restrict from striking of cement 
 
            of
 
                            hand.
 
                          - No climbing.
 
                          - No prolonged Standing, more than 
 
                            1 or 2 hours.
 
            
 
            (Jt. Ex. 12, p. 68).
 
            
 
                 Although it is noted that Dr. Ramsey was to review the 
 
            restrictions in three months, there is no evidence to 
 
            suggest that he lifted or modified the aforementioned 
 
            restrictions.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury on June 29, 1988, which arose out of and 
 
            in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 29, 1989, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 In 1988, claimant worked in the land and building 
 
            department at ALCOA.  This type of work required a myriad of 
 
            job duties, and typically involved heavy lifting and 
 
            physically demanding work.  Through claimant's testimony, 
 
            and by reviewing all of the evidence submitted at the 
 
            hearing, the undersigned was able to develop a comprehensive 
 
            understanding of claimant's job duties, and the physical 
 
            requirements of the same.
 
            
 
                 There is also evidence in the record which places 
 
            claimant at his specified job duties during his regular 
 
            shift, and the evidence notes that he was performing his 
 
            required job duties in a manner suitable to perform the 
 
            work.  And, although there are some variations in the amount 
 
            of information reported after the initial accident, the 
 
            greater weight of the evidence shows that claimant has 
 
            sustained his burden of proof, and sustained an injury which 
 
            arose out of and in the course of employment on June 29, 
 
            1988.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and his 
 
            disability.
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Although there is evidence in the record which 
 
            indicates that claimant has had several injuries to his 
 
            back, the last symptomatic episode was in 1987.  Since that 
 
            time, until July of 1988, claimant did not undergo any 
 
            extensive or intensive medical treatment.  Claimant did 
 
            testify that he periodically received maintenance therapy 
 
            from his chiropractic, again, his symptomatology and medical 
 
            treatment since June of 1980 have directed to his low back 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            and the problems he has encountered since the injuries he 
 
            sustained while working.  As a result, it is found that 
 
            there is a causal connection between the injury and 
 
            claimant's disability.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to temporary disability or healing period benefits 
 
            or permanent partial disability benefits.
 
            
 
                 As a general rule, injured workers receive temporary 
 
            total disability benefits in instances where they have 
 
            sustained no permanent impairment.  Healing period benefits 
 
            are awarded in such cases where injured workers are 
 
            permanent impaired by a work-related injury.
 
            
 
                 In reviewing all of the evidence submitted, claimant 
 
            was never given a functional impairment rating.  However, he 
 
            has been given various work restrictions, including no 
 
            lifting of more than 30 pounds, and limited duties that 
 
            would require bending, stooping or squatting.  In fact, the 
 
            company doctor, Dr. Ramsey, apparently concurred with the 
 
            restrictions given to claimant in April of 1991.  These 
 
            restrictions have never been modified or lifted.
 
            
 
                 As claimant has sustained a permanent injury to his 
 
            back, his loss of earning of capacity, or industrial 
 
            disability is to be reviewed.
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant is a high school graduate, and has taken 
 
            several classes in cabinet making skills.  His medical 
 
            condition prior to the injury is unremarkable, although 
 
            claimant had had several episodes of back pain at least one 
 
            year prior to the injury which is the subject of this 
 
            lawsuit.  After the injury, claimant underwent chiropractic 
 
            treatment on a average of two to three times per week for 
 
            almost one year.  Additionally, he underwent numerous 
 
            examinations and testing by other physicians, including 
 
            those affiliated with the defendant employer.  The record is 
 
            replete with references to the problems claimant incurred 
 
            while he was undergoing medical treatment.  However, the 
 
            company did allow claimant to treat with his own 
 
            chiropractor with whom he was most comfortable with respect 
 
            to treatment to his back.
 
            
 
                 Claimant endured a lengthy healing period, although his 
 
            recovery appears to be quite successful.  He is working 
 
            full-time for the company, and the evidence does not suggest 
 
            that claimant has encountered many, if any, problems while 
 
            on duty.
 
            
 
                 Intellectually and emotionally, claimant appeared 
 
            average.
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            His earnings prior to and subsequent to the injury are 
 
            equal, although claimant stated that he was unable to work 
 
            as many weekends as he would normally work but for the 
 
            injury.  However, this is not substantiated by the evidence.
 
            
 
                 Claimant has limited transferable skills, and it would 
 
            be difficult for him to be retrained in a different if he 
 
            were to lose his job with ALCOA.  And, as noted earlier, 
 
            claimant has permanent restrictions which have limited the 
 
            types of job duties he is comfortable in performing with the 
 
            employer.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained a fifteen percent industrial disability due to his 
 
            work-related injury.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            to be allowed time off of work to attend physical therapy 
 
            sessions.  Claimant's entitlement to medical benefits has 
 
            properly raised at the prehearing telephone conference, and 
 
            the issue of whether claimant is required to participate on 
 
            a physical therapy program on his own time or on work time 
 
            has been properly raised.
 
            
 
                 Claimant was originally scheduled, and did attend, 
 
            physical therapy sessions during the last two hours of his 
 
            shift.  Subsequently, the claimant was scheduled to attend 
 
            these sessions during his own time, an arrangement to which 
 
            he objected.  Claimant argued that he needed to be home 
 
            immediately after his work shift to care for his 13-year-old 
 
            son.
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter . . . shall furnish reasonable 
 
                 . . . physical rehabilitation, . . . and supplies 
 
                 therefor and shall allow reasonably necessary 
 
                 transportation expenses incurred for such 
 
                 services.
 
            
 
                 ALCOA's policy has been to schedule physical therapy 
 
            sessions during off hours.  (Jt. Ex. 14, p. 72).  This 
 
            policy appears reasonable, and it is found that claimant is 
 
            not entitled to demand that he attend therapy during work 
 
            time.  Defendants offered that claimant could bring his son 
 
            to the therapy sessions.  Claimant has cited no specific 
 
            statutory or case law authority for his proposition, and the 
 
            deputy can find none.  Therefore, no workers' compensation 
 
            is awarded for time off work for physical therapy sessions.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to healing period benefits at 
 
            the rate of three hundred fifty-two and 81/100 dollars 
 
            ($352.81) for the time he was off of work from July 5, 1988 
 
            through August 31, 1988.
 
            
 
                 That claimant is entitled to seventy-five (75) weeks of 
 
            permanent partial disability benefits to be paid by the 
 
            defendants at the rate of three hundred fifty-two and 81/100 
 
            dollars ($352.81) per week beginning September 1, 1988.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum, and shall receive credit against same for 
 
            benefits previously paid.
 
            
 
                 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 October, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael W Liebbe
 
            Attorney at Law
 
            116 E 6th Street
 
            PO Box 339
 
            Davenport Iowa 52805
 
            
 
            Mr Thomas N Kamp
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed October 1, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            STEVEN A. PAWLIK,	      :
 
 		                      :
 
                 Claimant,	      :      File No. 892580
 
                      		      :
 
 		            vs.       :    A R B I T R A T I O N
 
                 		      :
 
            ALUMINUM COMPANY OF AMERICA,:      D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant sustained a bulging disc at L4-L5.  No surgical 
 
            intervention was required.
 
            Claimant sustained no functional impairment rating, but work 
 
            restrictions were assigned, including no lifting of more 
 
            than 30 pounds on a repetitive basis.
 
            Claimant returned to same job at same rate of pay.  He was 
 
            awarded 15 percent industrial disability.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STEVEN A. PAWLIK,             :      File Nos.  892580
 
                                          :                1018216
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :            A N D
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :         R E V I E W -
 
                 Employer,                :
 
                 Self-Insured,            :       R E O P E N I N G
 
                 Defendant.               :
 
                                          :        D E C I S I O N
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review/reopening and 
 
            arbitration brought by claimant, Steven Pawlik, against his 
 
            former employer, The Aluminum Company of America (ALCOA).  
 
            Mr. Pawlik has filed a petition in review-reopening for a 
 
            work-related injury occurring on June 29, 1988.  A decision, 
 
            filed on October 1, 1991, determined Mr. Pawlik had 
 
            sustained a 15 percent industrial disability due to his work 
 
            injury.  He has also filed a petition in arbitration for an 
 
            alleged work injury occurring on April 11, 1991.  
 
            
 
                 The evidence in the case consists of testimony from the 
 
            claimant, Kevin O'Brien (human resource supervisor for 
 
            ALCOA), Judith Stengel (vocational rehabilitation 
 
            specialist), Brent Guge (industrial relations superintendent 
 
            for ALCOA), Forrest Smith, M.D. (ALCOA's company physician); 
 
            joint exhibits 1, 2 and 4-14; claimant's exhibits A and B;  
 
            and, employer's exhibits 15-27.  
 
            
 
                 All matters came on for hearing before the undersigned 
 
            deputy industrial commissioner on January 3, 1994 at 
 
            Davenport, Iowa. 
 
            
 
                                      ISSUES
 
            
 
                 For the review-reopening petition (agency file number 
 
            892580), the parties submit the following issue for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to additional 
 
            industrial disability benefits.
 
            
 
                 For the arbitration petition (agency file number 
 
            1018216), the parties submit the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on April 6, 
 
            1991 which arose out of and in the course of his employment; 
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            healing period disability benefits; and,  
 
            
 
                 3.  Whether claimant is entitled to permanent partial 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Steven Pawlik, is a high school graduate and 
 
            resides in Pleasant Valley, Iowa.  He is a single parent, 
 
            having had sole custody of his son for the past 13 years.
 
            
 
                 Claimant started working for ALCOA in 1973.  He has 
 
            worked for the company as a laborer, holding positions in 
 
            the land and building department, as a surfacer, and as a 
 
            crane and stretcher machine operator.  He attended truckers' 
 
            school, where he learned a multitude of different types of 
 
            skills, including how to operate different types of 
 
            machines.
 
            
 
                 Following the injury in June of 1988, claimant 
 
            underwent several months of conservative treatment.  He was 
 
            scheduled to undergo a CT scan and an MRI in January of 
 
            1989.  These tests were performed at the direction of 
 
            Stephen Rasmus, M.D.   The results of the CT scan of the 
 
            spine showed an L5-S1 herniated disc, but Dr. Rasmus noted 
 
            that it was herniated laterally to the right, with claimant 
 
            complaining of symptoms on the left.  A straight leg raising 
 
            test was positive on the left, producing pain in the 
 
            posterior thigh and buttocks.  Dr. Rasmus did not recommend 
 
            any changes in claimant's routine of a regular back exercise 
 
            program.  He asked claimant to return for follow-up in three 
 
            months.  (Jt. Ex. 2, p. 42).
 
            
 
                 At this time, claimant was under work restrictions 
 
            consisting of no lifting of more than 25 pounds, and limited 
 
            bending and twisting.
 
            
 
                 Claimant returned to Dr. Rasmus on May 15, 1989.  Dr. 
 
            Rasmus stated that claimant was progressing well, and that 
 
            work restrictions could be liberalized.  Specifically, Dr. 
 
            Rasmus stated that, "[p]rolonged repetitive lifting or 
 
            bending may produce problems in the long run, and it would 
 
            be wise to limit that when possible.  I am not going to 
 
            propose a specific work restriction otherwise."  (Jt. Ex. 2, 
 
            p. 43).
 
            
 
                 The records indicate that in May of 1989, claimant was 
 
            given permanent restrictions of lifting not more than 35 
 
            pounds with limited stooping and squatting on a repetitive 
 
            basis.  (Jt. Ex. 1, p. 23).
 
            
 
                 Claimant's work restrictions prior to the April 1991 
 
            injury were as follows:
 
            
 
                 LIMITATIONS:  - Lifting should be limited to 30 
 
                 pounds.
 
                          - Limited Shoveling.
 

 
            
 
            Page   3
 
            
 
            
 
                          - Pulling or pushing should be 
 
                               limited to
 
                            objects within the weight lift 
 
                               limit.
 
                          - No jobs should be repetitive 
 
                               andor[sic]
 
                            for prolonged periods of time.
 
                          - Limited stooping, bending, 
 
                               squatting or
 
                            twisting is permissible provided 
 
                               the weight being handled is 
 
                               within the weight lift limit.
 
                          - Not to work in semi-stooped 
 
                               position 
 
                            for long periods.
 
                          - Restrict from striking of cement 
 
                               of hand.
 
                          - No climbing.
 
                          - No prolonged Standing, more than 
 
                            1 or 2 hours.
 
            
 
            (Jt. Ex. 12, p. 68).
 
            
 
                 Following the injury on June 29, 1988, which is the 
 
            subject of the review-reopening proceeding, claimant was 
 
            able to return to work on September 1, 1988.   
 
            
 
                 On April 6, 1991, claimant was working in the cold mill 
 
            area of the plant.  He was placed in a position which 
 
            required him to ride a manlift, a 4-wheel vehicle which 
 
            accelerates to 15 miles per hour.  The machine has the 
 
            ability to raise a worker up to work on various machines 
 
            located in the plant.  The machine has a basket at the end 
 
            of a hydraulic scissors, and lifts the basket up to the 
 
            area. He was riding in the basket on the manlift, 
 
            approximately 60 feet in the air.  Apparently, the floor of 
 
            this area is rough, and while claimant stated that he used 
 
            the safety ties located in the basket to help keep him 
 
            stabilized, he was jarred in the basket and at one point 
 
            became air borne.  He reinjured his back.  
 
            
 
                 He reported the incident but continued to work, and 
 
            while the evidence suggests that claimant did not remember 
 
            the incident initially, and the company refused to accept 
 
            his injury as job-related, eventually claimant recalled the 
 
            incident and the company accepted it as a work-related 
 
            injury.  (employer's exhibit book, pages 75-76; 85).  
 
            
 
                 Eventually, claimant was referred to Eugene Collins, 
 
            M.D., who ordered a CT scan.  The results showed a herniated 
 
            disc at the L5-S1 centrally and to the right, with symptoms 
 
            indicating an S-1 radiculopathy.  Claimant was instructed to 
 
            stay off of work.  He returned to Dr. Collins ten days 
 
            later, and a lumbar laminectomy was considered.  Claimant 
 
            deferred surgery, and wanted to pursue conservative 
 
            treatment.  (Jt. Ex. 7, pp. 53-55).
 
            
 
                 Claimant was referred to Richard Roski, M.D., for 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            further treatment.  Dr. Roski recommended a conservative 
 
            course of treatment including physical therapy, which 
 
            claimant pursued through July of 1991.  At that point, it 
 
            was recommended he continue with physical therapy, and was 
 
            to be released to return to work in six weeks with the same 
 
            restrictions as previously imposed.  (Jt. Ex. 10, pp. 
 
            58-60).
 
            
 
                 In June of 1991, claimant was under the treatment of W. 
 
            F. Ramsey, M.D., the company physician.  At that point, 
 
            claimant complained that physical therapy was making his 
 
            back problem worse, but claimant was still opposed to 
 
            surgery.  (Jt. Ex. 11, p. 61).
 
            
 
                 Claimant continued with physical therapy, but was 
 
            restricted from certain exercises.  (Jt. Ex. 1, p. 39).
 
            
 
                 Claimant's care continued, including physical therapy 
 
            and various diagnostic testing.  In April of 1991, claimant 
 
            underwent a CT scan of the low back, the results of which 
 
            showed a herniated disc at the L5-S1 level.  (Jt. Ex. 8, p. 
 
            56).  Dr. Collins stated claimant was experiencing S-1 
 
            radiculopathy associated with the herniation.  (Jt. Ex. 7, 
 
            p. 53).  Dr. Roski believed the CT scan showed "noticeable 
 
            changes at the L5-S1 disc with more disc protruding out at 
 
            that level."  (Jt. Ex. 10, p. 58).  In December of 1991, an 
 
            MRI revealed a small central herniated disc at the L5-S1 
 
            level.  
 
            
 
                 There are many notations in the medical records from 
 
            the defendant employer.  The record is replete with 
 
            notations addressing claimant's attitude about not being 
 
            able to perform numerous jobs, his cancellations or "no 
 
            shows" at various physical therapy work sessions, and the 
 
            employer's frustration at exactly what type of job claimant 
 
            could perform. (employer exhibit book, pp. 84-117).  
 
            Claimant refused surgical intervention (joint exhibit 11, p. 
 
            61) and was released to return to work with various 
 
            restrictions on numerous occasions.  (employer's exhibits 
 
            book, pp. 118-122).  Final restrictions are found at page 
 
            123 of the employer's exhibit book, and designate the 
 
            following restricted activities:
 
            
 
                      LIMITATIONS:
 
            
 
                      May lift 25 pounds occasionally (Revised 
 
                 92-3-19)
 
            
 
                      No shoveling (Revised 92-3-19)
 
            
 
                      Pulling or pushing should be limited to 
 
                 objects within the weight lift limit
 
            
 
                      No jobs should be repititive [sic] and/or for                 
 
                 prolonged periods of time
 
            
 
                      Occasional stooping, bending, squatting or                    
 
                 twisting is permissible
 
            
 
                      Not to work in semi-stooped positions for 
 

 
            
 
            Page   5
 
            
 
            
 
                 long periods
 
            
 
                      Restrict from striking of cement [by] hand
 
            
 
                      Restrict from manlift or irregular surfaces
 
            
 
                      May work five consecutive 6 hour days revised                 
 
                 93/1/11 to 5 hour day
 
            
 
                 ADDED 93/1/15  Not to operate fork truck
 
            
 
                 Currently, claimant is not seeking any medical 
 
            attention, and is not undergoing physical therapy 
 
            treatments.  He occasionally uses pain medications 
 
            prescribed earlier.  He has retired from ALCOA, and is 
 
            seeking disability retirement benefits from the company.  
 
            Dr. Roski, the physician who filled out the retirement plant 
 
            report, stated that claimant would not be able to perform 
 
            light duty work if offered, even if the work adhered to the 
 
            work restrictions imposed.  (employer exhibit book, p. 
 
            230-234).  
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 For agency file number 892580, the first issue to 
 
            address is whether claimant is entitled to additional 
 
            industrial disability benefits. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).
 
            
 
                 After reviewing all of the evidence, it is impossible 
 
            to conclude that claimant has had a change in condition 
 
            which relates to his original injury on June 29, 1988.  Not 
 
            long after claimant finally recuperated and returned to 
 
            work, he had another documented injury.  The undersigned is 
 
            unable to find a medical opinion which assesses his present 
 
            condition to the June 29 injury.  
 
            
 
                 As a result, claimant has failed to prove by a 
 

 
            
 
            Page   6
 
            
 
            
 
            preponderance of the evidence that he has had a change in 
 
            condition related to the original injury.  He takes nothing 
 
            further for this proceeding. 
 
            
 
                 In claimant's arbitration proceeding, file number 
 
            1018216, the first issue to address is whether claimant 
 
            sustained an injury on April 6, 1991 which arose out of and 
 
            in the course of his employment. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 While the undersigned recognizes that there was some 
 
            confusion regarding the manlift incident, it is undisputed 
 
            that claimant had been assigned to this job, and that he was 
 
            performing his duties in a manner consistent with 
 
            accomplishing his work.  Likewise, the records indicate that 
 
            the employer eventually agreed that claimant had sustained 
 
            an injury in April of 1991.  As a result, it is found that 
 
            claimant sustained an injury on April 6, 1991 which arose 
 
            out of and in the course of his employment.  
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to temporary total or healing period benefits.  
 
            
 
                 Iowa Code section 85.33 (1) states, in relevant part:
 
            
 
                 [The] employer shall pay to an employee for injury 
 
                 producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Iowa Code section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) the worker has 
 
            returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement of the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
            be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 
 
            405 (Iowa 1986).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith, 290 N.W.2d 348; Holmes v. Bruce Motor Freight, 
 
            Inc., 215 N.W.2d 296 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Claimant underwent a battery of tests after the April 
 
            1991 incident.  Test results of both an MRI and CT scan 
 
            revealed that claimant's disc had become worse.  The disc 
 
            was a permanent condition prior to the April 1991 injury, 
 
            and continues to be a permanent condition.  While surgery 
 
            has been contemplated, claimant has refused this course of 
 
            treatment.  Apparently, he continues to perform home 
 
            exercises to strengthen his lower back, but one must wonder 
 
            how effective the program is given claimant's inability to 
 
            successfully return to jobs which adhere to his work 
 
            restrictions.  
 
            
 
                 Since claimant's physical condition is permanent, 
 
            claimant is awarded healing period benefits for the time he 
 
            was off of work from April 6, 1991 through July 26, 1992.  
 
            
 
                 As claimant has sustained another injury to his body as 
 
            a whole, his industrial disability must once again be 
 
            analyzed. 
 
            
 
                 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
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Certainly, claimant's motivation to return to work must 
 
            be questioned.  The record contains several, if not many 
 
            instances where claimant displayed a less than cooperative 
 
            attitude with Ms. Stengel and the various health care 
 
            providers.  While the undersigned can certainly understand 
 
            his frustration with the overall system, she still must 
 
            consider the impact his motivation has on any industrial 
 
            disability he may have due to the injury. 
 
            
 
                 It is troubling that Dr. Roski is of the opinion that 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            claimant is unable to return to work even in a light duty 
 
            capacity.  The undersigned interprets his comments to mean 
 
            that ALCOA has no job to offer claimant which would 
 
            accommodate his restrictions.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial loss, including (but not limited to):   objective 
 
            findings of a herniated disc at the L5-S1 level; claimant's 
 
            past work history; claimant's education; claimant's ability 
 
            to be retrained; ALCOA's attempts to find claimant suitable 
 
            work and accommodations made; claimant's prior medical 
 
            condition, including the prior determination that he had 
 
            sustained a 15 percent loss of earning capacity due to a 
 
            work injury; and, claimant's motivation to find suitable 
 
            work, it is determined that he has sustained a loss of 
 
            earning capacity of an additional 40 percent.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits at the rate of three hundred seventy-three and 
 
            15/100 dollars ($373.15) per week for the time he was off of 
 
            work from April 6, 1991 through July 26, 1992.
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disabilty benefits at the rate of three hundred seventy-
 
            three and 15/100 dolllars ($373.15) per week for two hundred 
 
            (200) weeks commencing July 27, 1992.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum, and shall receive credit for benefits previously 
 
            paid.
 
            
 
                 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 a claims 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 February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael W Liebbe
 
            Attorney at Law
 
            116 E 6th St
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            P O Box 339
 
            Davenport IA 52805
 
            
 
            Mr Thomas N Kamp
 
            Attorney at Law
 
            6700 Davenport Bank Bldg
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-2905; 5-1101
 
                                             5-1801; 5-1803
 
                                             Filed February 14, 1994
 
                                             Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STEVEN A. PAWLIK,             :      File Nos.  892580
 
                                          :                1018216
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :            A N D
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :         R E V I E W -
 
                 Employer,                :
 
                 Self-Insured,            :       R E O P E N I N G
 
                 Defendant.               :
 
                                          :        D E C I S I O N
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-2905; 5-1101; 5-1801; 5-1803
 
            Claimant failed to prove a change of condition to warrant 
 
            additional benefits for his first work injury.
 
            Due to a second injury, claimant awarded an additional 40% 
 
            industrial disability  due to an aggravation/worsening of a 
 
            prior back condition.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN SPALDING,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892690
 
            EMCO INDUSTRIES,              :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INSURANCE,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on July 22, 1988.  Defendants cross-appeal.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration proceeding and joint exhibits A through K.  Both 
 
            parties filed briefs on appeal.  
 
            
 
                                      ISSUES
 
            
 
                 Claimant states the following issue on appeal:
 
            
 
                 Are the scheduled member sections of the Iowa workers' 
 
            compensation law unconstitutional?
 
            
 
                 Defendants state the following issue on cross-appeal:
 
            
 
                 The deputy erred in finding that the claimant sustained 
 
            a 15 percent permanent partial impairment of the left arm 
 
            which is causally related to her employment.
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be totally 
 
            set forth herein. 
 
            
 
                 Briefly stated, claimant worked as a factory machine 
 
            operator.  On July 22, 1988, claimant suffered a crushing 
 
            blow to her left hand and forearm arising out of and in the 
 
            course of her employment.  Claimant was off work for various 
 
            intermittent periods of time following her injury.
 
            
 
                 Claimant had x-rays taken of her left arm shortly after 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the injury.  Those x-rays did not reveal any fractures.  On 
 
            November 1, 1988, further x-rays did show a fracture of the 
 
            left forearm.  The fracture was described by Ronald S. 
 
            Bergman, M.D., as a "healing" fracture.  Dr. Bergman 
 
            re-examined the x-rays taken shortly after the injury, and 
 
            again concluded that no fracture was indicated on those 
 
            x-rays.  Claimant testified that she did not have any 
 
            intervening trauma to her arm from the time of her injury on 
 
            July 22, 1988, until the fracture was discovered on November 
 
            1, 1988.
 
            
 
                 Claimant was returned to work with some restrictions, 
 
            which were honored by the employer.  Claimant was placed in 
 
            a "light duty" job.
 
            
 
                 Rodney E. Johnson, M.D., opined on July 26, 1988, that 
 
            claimant had no permanent impairment of her left arm.  Dr. 
 
            Bergman opined on November 14, 1988, after the x-rays 
 
            revealed the fracture, that claimant had a minimal to zero 
 
            "disability."
 
            
 
                 Claimant then sought an independent evaluation by 
 
            Jerome Bashara, M.D., on June 9, 1989.  Dr. Bashara found 
 
            claimant to have a 15 percent permanent partial impairment 
 
            of the left upper extremity.  
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 22, 
 
            1988 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                                     ANALYSIS
 
            
 
                 On appeal, defendants raise as an issue whether 
 
            claimant has carried her burden to prove that her present 
 
            condition is causally related to her work injury.  None of 
 
            the medical evidence contains an expert medical opinion that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's present condition is caused by her work injury of 
 
            July 22, 1988.  Dr. Bashara did state as follows:
 
            
 
                 Diagnosis:  Crush injury left forearm with healed 
 
                 fracture of the radius.
 
            
 
                 I would give this patient a 15% permanent partial 
 
                 physical impairment of her upper extremity related 
 
                 to her fracture and injuries.
 
            
 
            (Joint Exhibit K, pages 4-5)
 
            
 
                 This statement by Dr. Bashara does not clearly state 
 
            that claimant's fracture is a result of her work injury of 
 
            July 22, 1988.  This is especially important where the 
 
            x-rays taken immediately after the injury showed no 
 
            fracture, while the x-rays that did show the fracture were 
 
            not taken until several months later. 
 
            
 
                 Although there is no evidence in the record to show an 
 
            intervening cause for claimant's fracture, it is not 
 
            incumbent on defendants to show the cause of the fracture.  
 
            Claimant bears the burden of proof.  In light of the fact 
 
            that both Dr. Bergman and Dr. Johnson failed to causally 
 
            connect claimant's fracture with her work injury, and Dr. 
 
            Bashara merely rates claimant's present condition without 
 
            relating the fracture to the injury, claimant has failed to 
 
            carry her burden to show that her present left arm fracture 
 
            is causally connected to her work injury of July 22, 1988.
 
            
 
                 Even if claimant had shown that her present left arm 
 
            fracture was causally connected to her work injury of July 
 
            22, 1988, claimant has not shown entitlement to permanent 
 
            partial disability benefits.  Dr. Johnson stated that 
 
            claimant did not suffer any permanency as a result of her 
 
            injury.  Dr. Bergman stated that claimant had minimal or 
 
            zero impairment as a result of the injury.  Dr. Johnson and 
 
            Dr. Bergman were claimant's treating physicians.  Dr. 
 
            Bashara performed an evaluation only.  Dr. Johnson and Dr. 
 
            Bergman had more contact with claimant and are in a better 
 
            position to ascertain the permanent nature of claimant's 
 
            impairment.  Dr. Bergman also had the opportunity to examine 
 
            claimant's x-rays.  The opinions of Dr. Johnson and Dr. 
 
            Bergman will be given the greater weight.  Claimant has not 
 
            carried her burden of proof to show that she has suffered a 
 
            permanent partial impairment as a result of her July 22, 
 
            1988 work injury.
 
            
 
                 Claimant raises as an issue on appeal whether the 
 
            scheduled member provisions of the Iowa Workers' 
 
            Compensation Law are constitutional.  Claimant contends that 
 
            these sections of the law in their application to claimant 
 
            operate to deny her equal protection of the law as compared 
 
            to other claimants who suffer injuries that extend to the 
 
            body as a whole, and thus are compensated on the basis of 
 
            industrial disability.  Claimant relies on both equal 
 
            protection under the U.S. Constitution and Article I, 
 
            Section 6 of the Iowa Constitution.  These sections have 
 
            been previously upheld by the Iowa Supreme Court as an 
 
            appropriate determination by the legislature to treat 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            various injuries differently under the workers' compensation 
 
            system.  Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 
 
            1983).  Claimant also alleges that the statute is 
 
            unconstitutional on its face.  This agency lacks 
 
            jurisdiction to determine the constitutional validity of a 
 
            statute.  Salsbury Laboratories v. Iowa Dept. of 
 
            Environmental Quality, 276 N.W.2d 830 (Iowa 1979).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  Claimant was employed by defendant employer as a 
 
            factory machine operator.
 
            
 
                 2.  Claimant received an injury to her left arm on July 
 
            22, 1988, arising out of and in the course of her 
 
            employment.
 
            
 
                 3.  Claimant's x-rays of her left arm taken immediately 
 
            after the July 22, 1988 injury do not show a fracture.
 
            
 
                 4.  Claimant's x-rays of her left arm taken November 1, 
 
            1988, do show a healing fracture of the left arm.
 
            
 
                 5.  Dr. Johnson treated claimant and found that 
 
            claimant did not have any permanent partial impairment of 
 
            her left arm.
 
            
 
                 6.  Dr. Bergman treated claimant and found that 
 
            claimant had minimal to zero permanent impairment of her 
 
            left arm.
 
            
 
                 7.  Dr. Bashara found that claimant had a 15 percent 
 
            permanent partial impairment of her left arm as a result of 
 
            her work injury and her fracture.
 
            
 
                 8.  None of claimant's physicians expressed an opinion 
 
            causally connecting claimant's present left arm condition to 
 
            her work injury of July 22, 1988.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has failed to carry her burden of proof to 
 
            show that her present left arm condition is causally 
 
            connected to her work injury of July 22, 1988.
 
            
 
                 Claimant has failed to carry her burden of proof to 
 
            show that she has a permanent partial impairment of her left 
 
            arm.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay ten point three seven two 
 
            (10.372) weeks of a combination of temporary total 
 
            disability or healing period benefits and temporary partial 
 
            disability benefits at the rate of two hundred forty-three 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            dollars ($243.00) per week for the periods of July 23, 1988 
 
            through July 29, 1988, July 30, 1988 through August 3, 1988 
 
            (temporary total disability), and temporary partial 
 
            disability benefits from October 31, 1988 through December 
 
            11, 1988, December 21, 1989, January 11, 1989 through 
 
            January 22, 1989, and November 1, 1989 through December 2, 
 
            1989, for all inclusive periods of time the parties 
 
            stipulated to be ten point three seven two (10.372) weeks, 
 
            which amount defendants have already paid.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Ave., Suite 200
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Suite 16
 
            Des Moines, Iowa 50312
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         1108.50; 2906
 
         Filed November 28, 1990
 
         BJO
 
         Clair R. Cramer
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         SUSAN SPALDING,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 892690
 
         EMCO INDUSTRIES,              :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         CRUM & FORSTER COMMERCIAL     :
 
         INSURANCE,                    :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         1108.50
 
         Claimant failed in her burden of proof to show that her present 
 
         condition was causally connected to her work injury.  X-rays 
 
         taken shortly after her injury to her arm showed no fractures.  
 
         X-rays taken several months later showed a healing fracture.  
 
         Although claimant testified that there was no intervening event 
 
         that might account for the fracture, there was no medical 
 
         evidence offered to show why the fracture did not show up on the 
 
         earlier x-rays.  Claimant bears the burden of proof.  
 
         Even if the fracture had been shown to be causally connected to 
 
         her work injury, claimant failed to show permanency.  Two 
 
         treating doctors stated that claimant suffered little or no 
 
         permanent impairment.  Examining physician opined 15 percent 
 
         impairment of the arm.  The opinions of the treating physicians, 
 
         who had more contact with claimant and her condition, were given 
 
         the greater weight.
 
         
 
         2906
 
         Claimant challenged constitutionality of the scheduled member 
 
         provisions of the workers' compensation law.  Held that this 
 
         agency lacks the authority to determine the validity of a 
 
         statute, and that the constitutionality of these sections has 
 
         already been determined by the Iowa Supreme Court.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SUSAN SPALDING,
 
         
 
              Claimant,                                File No. 892690
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         EMCO INDUSTRIES,                              D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JUN 22 1990
 
         CRUM & FORSTER COMMERCIAL
 
         INSURANCE,                            IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration wherein Susan Spalding 
 
         seeks compensation for additional healing period or temporary 
 
         total or temporary partial disability benefits, permanent partial 
 
         disability, and payment of a medical bill resulting from an Iowa 
 
         Code section 85.39 examination as a result of an injury on July 
 
         22, 1988.  The case was heard in Des Moines, Iowa, on June 18, 
 
         1990.  The record in the proceeding consists of the testimony of 
 
         the claimant, claimant's daughter, Kathie Bailey, and John 
 
         Feather; and joint Exhibits A through K.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.   The nature and extent of claimant's disability;
 
         
 
              2.   Whether claimant's left arm injury is a scheduled 
 
         member injury or a body as a whole injury;
 
         
 
              3.  Whether claimant is entitled to have Dr. Bashara's bill 
 
         in the amount of $175 incurred pursuant to an 85.39 application 
 
         paid by defendants;
 
         
 
              4.  Whether Dr. Bashara's medical examination was authorized 
 
         by defendants;
 
         
 
              5.  Whether claimant's left forearm fracture was causally 
 
         connected to her September 22, 1988 injury; and
 
         
 
              6.  Whether the schedule member sections of the Iowa 
 
         Workers' Compensation law are constitutional.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy having heard the testimony and 
 
         considered all the evidence, finds that:
 
         
 
              Claimant completed the eleventh grade in high school and has 
 
         no other formal education.  Claimant is 60 years old.  Claimant 
 
         did not work outside the home until 1973 at age 43.  Claimant 
 
         began working for defendant employer on September 5, 1974 as a B 
 
         machine operator and through the union contract process became an 
 
         A machine operator.  Claimant basically learned to operate most, 
 
         if not all, of the defendant employer's machines which include 
 
         the machines like the riveter, treadformer and presses.  Claimant 
 
         described some of the various products defendant employer 
 
         produced.  Claimant began employment in 1974 at $2.10 per hour 
 
         and made as much as $9.99 per hour at the time of her injury.  
 
         Claimant was working on the Videx 216 machine at the time of her 
 
         July 22, 1988 injury.
 
         
 
              There is considerable direct and cross-examination testimony 
 
         that would be important for consideration of whether claimant had 
 
         an industrial disability and the extent of that disability.  The 
 
         undersigned finds no necessity to go into those facts as the 
 
         evidence is clear that, notwithstanding claimant's setting out 
 
         the issue of whether claimant has a scheduled member injury 
 
         versus a body as a whole injury, there is no evidence that would 
 
         indicate any injury or impairment of any kind to claimant's body 
 
         as a whole.  The undersigned finds claimant failed to prove she 
 
         has an industrial disability for an injury to any of her body 
 
         other than to her left hand, arm and upper extremity.
 
         
 
              Claimant received a severe crushing injury to her left hand 
 
         and forearm at work on July 22, 1988.  Claimant was released to 
 
         return to her regular job on July 27, 1988 and, in fact, returned 
 
         to work around July 29, 1988.  Claimant was immediately off again 
 
         on July 30 through August 3, 1988.  Claimant was paid temporary 
 
         total disability benefits for these approximate two weeks. 
 
         Claimant additionally was off on scattered dates, namely, October 
 
         31, 1988 through December 11, 1988, December 21, 1988 through 
 
         January 22, 1989, and November 1, 1989 through December 2, 1989, 
 
         all of which dates the parties stipulated amounted to 10.372 
 
         weeks.  Claimant was paid temporary partial disability benefits 
 
         for these latter periods.  The undersigned finds that claimant is 
 
         entitled to benefits for these periods as have been paid.
 
         
 
              It is obvious claimant's job on July 22, 1988 required use 
 
         of both hands, especially if she were to do the required lifting 
 
         and keep up with the expected production flow.  Defendant 
 
         employer has attempted to accommodate claimant to keep her 
 
         employed.  Although defendants at times gave the impression that 
 
         they did not necessarily believe claimant's condition warranted 
 
         the present restrictions imposed on her, defendant employer has 
 
         attempted in good faith to find claimant a job within those 
 
         restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An issue regarding the restrictions is whether claimant's 
 
         current restrictions are the result of her July 22, 1988 injury 
 
         and whether the fracture in claimant's left arm found several 
 
         months after her July 22, 1988 injury was, in fact, a result of 
 
         her July 22, 1988 injury or was it caused by some other 
 
         nonoccupational or other occupational injury.  It is undisputed 
 
         that claimant's left forearm fracture was discovered on November 
 
         1, 1988 (Joint Exhibit 8, page 14) and that it was not seen or 
 
         noted on the x-rays taken at the time of claimant's July 22, 1988 
 
         injury.  Although claimant received treatment for a period of 
 
         time after the July 22, 1988, she continued to have severe pain 
 
         and problems and her left arm felt like something would move 
 
         inside. Although it is hard to believe a fracture wasn't 
 
         discovered on July 22, 1988 when x-rays were taken, the 
 
         experience of this agency has seen similar situations many times 
 
         in the past.  This often is the result of either poor medical 
 
         attention, diagnosis, care, or due to the angle in the x-rays or 
 
         other type of medical equipment or imaging equipment use.
 
         
 
              Ronald S. Bergman, M.D., wrote on November 14, 1988:
 
         
 
                   Unfortunately, I saw her back on November 1, 1988 at 
 
              which time she was having some swelling of the dorsum of the 
 
              wrist and hand.  We obtained an X-ray of her left hand and 
 
              wrist which noted a healing fracture of the distal one-third 
 
              of the left ulna in good anatomic position.  On initial 
 
              X-ray this was not noted by myself nor the radiologist.  We 
 
              have reviewed her initial films and again have not noted any 
 
              fracture.  She does not claim to have had any trauma in the 
 
              interim.  She was fitted with a splint on November 1, 1988 
 
              and I will see her back in several weeks.
 
         
 
                   Clearly, she has not reached maximum healing at this 
 
              time.  I feel she will have minimal to zero disability.
 
         
 
         (Jt. Ex. A, p. 14)
 
         
 
         This exhibit refers to "healing fracture."  It doesn't address 
 
         whether this could have occurred on July 22, 1988, three and 
 
         one-half months earlier.  The undersigned finds that claimant's 
 
         fracture that was discovered on November 1, 1988 was, in fact, 
 
         caused by claimant's July 22, 1988 injury.  There is absolutely 
 
         no evidence that this fracture occurred at any other time than on 
 
         July 22, 1988 and that it was not discovered until later.  
 
         Claimant received a very severe crushing injury and the pain that 
 
         claimant suffered after this injury, even with medical attention, 
 
         indicates to the undersigned that there was a more severe problem 
 
         than had been discovered up to that time.
 
         
 
              Claimant described the pain she has incurred since the 
 
         injury and indicated up to the present that she has part of her 
 
         hand and wrist that are very tender to the touch.  Claimant even 
 
         contended that her arm and hand are crooked.  The undersigned 
 
         could detect no appreciable difference between her hands other 
 
         than there is an indentation or crease in her left hand on the 
 
         little finger side. Claimant said that there is a muscle missing 
 
         from that area.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant went through a work hardening program in December 
 
         1989 and January 1990.  A functional evaluation was performed on 
 
         claimant on December 19, 1988 by Thomas W. Bower, LPT, of 
 
         Physical Therapy Consultants.  Claimant had another functional 
 
         evaluation or work assessment performed by the same therapist on 
 
         February 22, 1989 (Jt. Ex. E, p. 9).
 
         
 
              On June 7, 1989, Rodney E. Johnson, M.D., noted in his 
 
         records that claimant has reached maximum recovery (Jt. Ex. B, P. 
 
         10).
 
         
 
              There is considerable testimony from claimant and John 
 
         Feather, defendant employer's industrial relations and workers' 
 
         compensation overseer.  This testimony evolved around the fact of 
 
         whether claimant could do her old job that she had at the time of 
 
         her July 22, 1988 injury, whether there has been modification of 
 
         that job, and whether there are currently restrictions which 
 
         defendant employer is honoring which has resulted in claimant 
 
         being placed in the packaging department.  It is undisputed that 
 
         the present job claimant has with defendant employer, the 
 
         packaging department job, is considered a light duty job and 
 
         resulted from the current restrictions placed on claimant by Dr. 
 
         Bashara.
 
         
 
              There is evidence indicating claimant's old job was analyzed 
 
         and it was determined that with some modification which defendant 
 
         employer made, claimant could return to her old job at the Videx 
 
         216 machine.  Claimant was reluctant to return to this position 
 
         because of her injury on July 22, 1988 (Jt. Ex. B, p. 13). 
 
         Claimant disputed the analysis of her job and testified that 
 
         regarding several items, the job entailed more lifting and 
 
         overhead work than the consultant's analysis noted.
 
         
 
              Claimant contends Joint Exhibit B, page 13 lists claimant's 
 
         current restrictions.  Defendants contend this exhibit merely 
 
         sets out the requirements of claimant's jobs which Dr. Johnson 
 
         said claimant would be able to do.  The undersigned finds 
 
         defendants' position is correct.  The undersigned finds that 
 
         claimant does have some restrictions (Jt. Ex. K, p. 5) and 
 
         defendant employer's witness, Mr. Feather, acknowledged that 
 
         defendant employer is following the restrictions even though they 
 
         might not agree with them.
 
         
 
              On November 14, 1988, Dr. Bergman opined a minimal to zero 
 
         disability (Jt. Ex. A, p. 14).  The undersigned presumes this 
 
         doctor means impairment as the deputy determines disability.
 
         
 
              Dr. Johnson and Thomas Bower, LPT, on July 26, 1988, 
 
         determined no permanency though they advised claimant to stay in 
 
         her present position (light duty packaging job) as they doubted 
 
         claimant could do the requirements of her job at the time of her 
 
         July 22, 1988 injury (Jt. Ex. B, p. 12).
 
         
 
              Claimant sought an evaluation by Jerome Bashara, M.D., on 
 
         June 9, 1989, under an 85.39 application.  Final ruling on this 
 
         application was deferred to this hearing on the merits.  Dr. 
 
         Bashara opined a 15 percent permanent partial physical impairment 
 
         of claimant's upper left extremity related to claimant's July 22, 
 
         1988 injury including her fracture (Jt. Ex. K, p. 4).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Bashara placed permanent restrictions on claimant of "no 
 
         static lifting, pushing, or pulling over 25 lbs. with the left 
 
         upper extremity.  No repetitive use of the left elbow, forearm, 
 
         or wrist." (Jt. Ex. K, p. 5)  The doctor also indicated claimant 
 
         should not return to her occupation at the particular machine she 
 
         was operating July 22, 1988.
 
         
 
              No doctor actually opined a causal connection of claimant's 
 
         condition to any injury.  It is obvious claimant has a 
 
         work-related injury which occurred July 22, 1988.  Defendants 
 
         stipulated that the injury caused temporary total disability and 
 
         temporary partial disability.  Defendants contend the fracture 
 
         was not caused by the July 22, 1988 injury.  The undersigned 
 
         already found claimant's July 22, 1988 injury caused the 
 
         fracture.  The undersigned further finds that Dr. Bashara's 
 
         opinion is the better opinion and the most accurate based on all 
 
         the facts herein.
 
         
 
              The undersigned finds claimant has a 15 percent permanent 
 
         partial impairment to her left upper extremity entitling her to 
 
         37.5 weeks of benefits at $243.00 per week.
 
         
 
              Claimant contends she is entitled to healing period or 
 
         temporary partial disability or temporary total disability for 
 
         the period from July 22, 1988 to July 26, 1989.  Defendants 
 
         contend this period should be July 22, 1988 up to August 4, 1988. 
 
         Defendants paid temporary total disability, temporary partial 
 
         disability or healing period benefits for varied scattered 
 
         periods of time between July 22, 1988 and December 2, 1989, 
 
         inclusive, amounting to a total of 10.372,weeks.  Defendants 
 
         contend they overpaid.  Voluntary payments are not admissions of 
 
         liability but the evidence is clear and the undersigned finds 
 
         that claimant is entitled to the benefits for the periods already 
 
         paid, namely, temporary total disability from July 22, 1988 
 
         through July 29, 1988, and July 30, 1988 through August 3, 1988, 
 
         and total partial disability beginning October 31, 1988 through 
 
         December 11, 1988, December 21, 1988 through January 22, 1989,
 
         and beginning November 1, 1989 through December 2, 1989, all of 
 
         which the parties agree the dates listed above involve 10.372 
 
         weeks.  Basically, the real dispute involves whether claimant is 
 
         entitled to healing period from January 23, 1989 to July 26, 
 
         1989. Claimant was released on January 17, 1989 to return to work 
 
         on January 23, 1989 for four hours light duty for one week, eight 
 
         hours light duty one week, and with the hope that claimant on 
 
         rechecking in two weeks would be able to return to her job 
 
         without restrictions.
 
         
 
              On February 24, 1989, Dr. Johnson indicated he did not feel 
 
         claimant had reached maximum healing but was capable of light 
 
         duty (Jt. Ex. B, p. 7).  The record is somewhat confusing in this 
 
         area. On June 7, 1989, Dr. Johnson said claimant had reached 
 
         maximum medical recovery.  It appears claimant was working during 
 
         most of this period of time, in other words, January 23, 1989 
 
         through June 7, 1989.  It would appear claimant would be entitled 
 
         to temporary partial disability benefits during this period if 
 
         she was not being paid her regular wages.  Since the evidence is 
 
         not clear, there can be no finding of entitlement for the January 
 
         23, 1989 through June 7, 1989 period.  The undersigned finds that 
 
         claimant is not entitled to temporary total or temporary partial 
 
         disability or healing period benefits for the period beginning 
 
         January 23, 1989 to July 26, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant filed an 85.39 application which was deferred to 
 
         this hearing.  Defendants had obtained a rating of impairment 
 
         from their own authorized doctor.  Claimant is entitled to an 
 
         evaluation paid for by defendants as provided in Iowa Code 
 
         section 85.39.  Claimant is entitled to have Dr. Bashara's bill 
 
         in the amount of $175 paid by defendants.  The issue of 
 
         authorization of this medical examination is moot in light of the 
 
         above ruling. Additionally, defendants denied claimant had any 
 
         permanent partial impairment or disability from the July 22, 1988 
 
         injury.
 
         
 
              Claimant raised the issue of constitutionality of the 
 
         scheduled member sections of the Iowa Code.  Basically, claimant 
 
         contends that the criteria used to determine industrial 
 
         disability in a body as a whole injury should be used to 
 
         determined claimant's degree of disability when a scheduled 
 
         member only is involved.  This agency has long and consistently 
 
         held that the industrial disability criteria are not involved in 
 
         determining the degree of permanent disability to a scheduled 
 
         member.  This issue has been around a long time.  The legislature 
 
         or the supreme court has not seen fit to change a law for its 
 
         interpretation or the prior agency's decisions.  The undersigned 
 
         finds that the scheduled member statute is constitutional.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 22, 1988 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              The Iowa Supreme Court in Simbro v. DeLong's Sportswear, 332 
 
         N.W.2d 886 (Iowa 1983) explained the two methods for evaluating a 
 
         disability--functional and industrial:
 
         
 
              Functional disability is assessed solely by determining the 
 
              impairment of the body function of the employee; industrial 
 
              disability is gauged by determining the loss to the 
 
              employee's earning capacity.  Functional disability is 
 
              limited to the loss of physiological capacity of the body or 
 
              body part.  Industrial disability is not bound to the organ 
 
              or body incapacity, but measures the extent to which the 
 
              injury impairs the employee in the ability to earn wages....
 
         
 
                   ...A specific scheduled disability is evaluated by the 
 
              functional method; the industrial method is used to evaluate 
 
              an unscheduled disability.
 
         
 
              Iowa Code section 85.39 provides, in part:
 
         
 
                   If an evaluation of permanent disability has been made 
 
              by a physician retained by the employer and the employee 
 
              believes this evaluation to be too low, the employee shall, 
 
              upon application to the commissioner and upon delivery of a 
 
              copy of the application to the employer and its insurance 
 
              carrier, be reimbursed by the employer the reasonable fee 
 
              for a subsequent examination by a physician of the 
 
              employee's own choice, and reasonably necessary 
 
              transportation expenses incurred for the examination.  The 
 
              physician chosen by the employee has the right to confer 
 
              with and obtain from the employer-retained physician 
 
              sufficient history of the injury to make a proper 
 
              examination.
 
         
 
              It is further concluded that claimant's work injury on July 
 
         22, 1988 caused claimant to incur a fracture of her left arm and 
 
         a 15 percent permanent partial impairment to her left upper 
 
         extremity.
 
         
 
              Claimant has restrictions of no static lifting, pushing, or 
 
         pulling over 25 pounds with the left upper extremity, and no 
 
         repetitive use of her left elbow, forearm or wrist.
 
         
 
              Claimant is not entitled to any additional healing period, 
 
         temporary total disability or temporary partial disability 
 
         benefits for the period of January 23, 1989 to July 26, 1989.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant is entitled to have her medical bill with Dr. 
 
         Bashara in the amount of $175 paid by defendants resulting from 
 
         an Iowa Code section 85.39 examination.
 
         
 
              Claimant does not have a body as a whole injury or 
 
         impairment.  Claimant has failed to carry her burden of proof on 
 
         this issue.
 
         
 
              The scheduled member provisions of the Iowa Workers, 
 
         Compensation law are constitutional.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay ten point three seven two (10.372) of a 
 
         combination of temporary total disability or healing period 
 
         benefits and temporary partial disability benefits at the rate of 
 
         two hundred forty-three dollars ($243.00) per week for the 
 
         periods of July 23, 1988 through July 29, 1988, July 30, 1988 
 
         through August 3, 1988 (temporary total disability), and 
 
         temporary partial disability benefits from October 31, 1988 
 
         through December 11, 1988, December 21, 1988 through January 3, 
 
         1989, January 4, 1989 through January 10, 1989, January 11, 1989 
 
         through January 22, 1989, and November 1. 1989 through December 
 
         2, 1989, for all inclusive periods of time the parties stipulated 
 
         to be ten point three seven two (10.372) weeks, which amount 
 
         defendants have already paid.
 
         
 
              Defendants shall pay claimant thirty-seven point five (37.5) 
 
         weeks of permanent partial disability benefits for claimant's 
 
         left upper extremity schedule member disability at the rate.of 
 
         two hundred forty-three dollars ($243.00) per week, commencing 
 
         January 23, 1989.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              signed and filed this 22nd day of June, 1990.
 
         
 
         
 
         
 
                                                           
 
                                            
 

 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies To:
 
         
 
         Mr Philip F. Miller
 
         Attorney at Law
 
         309 Court #200
 
         Des Moines, IA  50309
 
         
 
         Mr Harry W Dahl
 
         Attorney at Law
 
         974 73rd St
 
         Ste 16
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed June 22, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SUSAN SPALDING,
 
         
 
              Claimant,
 
                                                     File No. 892690
 
         vs.
 
         
 
         EMCO INDUSTRIES,                         A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         CRUM & FORSTER COMMERCIAL
 
         INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant awarded 15% permanent partial disability benefits 
 
         for a 15% permanent partial impairment to her left upper 
 
         extremity injury.
 
         
 
              Held, Iowa worker's compensation scheduled member sections 
 
         are constitutional.