Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH LITTLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 895142
 
            RINGLAND-JOHNSON-CROWLEY,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Kenneth 
 
            Little, claimant, against Ringland-Johnson-Crowley Company, 
 
            employer and Allied Group, insurance carrier, to recover 
 
            benefits under the Iowa Workers' Compensation Act as the 
 
            result of an injury sustained on August 23, 1988.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on March 10, 1992, in Des Moines, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying were Roger Marquardt 
 
            and Jan Hardcopf Bickely.  The documentary evidence 
 
            identified in the record consists of Joint Exhibits A 
 
            (subsections 1-21, 407 pages) through H (244 pages).  
 
            
 
                                      issue
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            10, 1992, the only issue presented for resolution is the 
 
            extent of entitlement to weekly compensation of permanent 
 
            disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on March 27, 1945, and completed the 
 
            twelfth grade of school.  His primary work activity the past 
 
            23 years has been as a construction laborer.  On August 23, 
 
            1988, he was involved in a work-related accident while 
 
            putting a 150-pound steel door in a frame.  He experienced 
 
            marked onset of lower back pain and left leg pain at the 
 
            time of the incident.  
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that claimant was admitted to Iowa Methodist Medical 
 
            Center emergency room for a short stay assessment of back 
 
            pain on August 24, 1988.  On August 25, 1988, David Boarini, 
 
            M.D., admitted claimant as an inpatient for conservative 
 
            therapy of low back pain with radiation to the left leg.  He 
 
            received no significant relief from physical therapy, bed 
 
            rest and an epidural injection.  A CT scan was taken and 
 
            revealed a herniated L4-5 disc.  On August 31, 1988, he was 
 
            taken to the operating room where Dr. Boarini performed an 
 
            L4-5 hemilamenotomy and disc excision.  By September 8, 
 
            1988, his leg pain had significantly improved and he was 
 
            able to walk without difficulty.  He was discharged and 
 
            scheduled for follow-up in five to six weeks (exhibit A, 
 
            pages 153-167).
 
            
 
                 On October 6, 1988, claimant presented to the Iowa 
 
            Methodist Low Back Institute for physical therapy treatment 
 
            (ex. A, pp. 169-170).  On November 7, 1988, claimant 
 
            underwent an MRI of his lumbar spine and the results 
 
            indicated disc herniation to the left of the midline at the 
 
            L4-5 level with displacement of the existing L5 nerve root 
 
            (ex. A, p. 174).  On November 25, 1988, claimant was 
 
            discontinued from further physical therapy pending 
 
            re-evaluation by Dr. Boarini (ex. A, p. 176).  
 
            
 
                 Claimant was referred by the insurance company to 
 
            William R. Boulden, M.D., for evaluation on November 29, 
 
            1988.  A physical examination revealed very limited range of 
 
            motion and pain with extension, forward flexion and straight 
 
            leg raising on the left.  Dr. Boulden assessed a failed back 
 
            disc surgery at L4-5 (ex. A, pp. 178-179).
 
            
 
                 On December 6, 1988, claimant underwent a dye enhanced 
 
            CT scan of the lumbar spine which showed no evidence of 
 
            recurrent disc.  Dr. Boulden was unable to determine the 
 
            etiology of claimant's symptoms.  Facet blocks at L4-5 did 
 
            not relieve his pain.  When injected at the L5-S1 facet 
 
            joint his pain was reproduced.  It was determined that the 
 
            etiology of his pain was coming from the L5-S1 facet joint 
 
            and two forms of treatment were discussed, namely, a facet 
 
            rhizotomy and major back fusion.  Claimant agreed to fusion 
 
            surgery (ex. A, pp. 35, 181-184).
 
            
 
                 Dr. Boulden admitted claimant to Iowa Lutheran Hospital 
 
            on January 23, 1989, where he performed a transverse process 
 
            fusion L4 to the sacrum with internal bone stimulator.  He 
 
            was discharged on January 30, 1989 (ex. A, pp. 36-43). 
 
            
 
                 Dr. Boulden referred claimant to Manual Therapy Center 
 
            for development of a mobilization program to enhance range 
 
            of motion and strength so that he may be considered for a 
 
            conditioning program.  He was also referred to Sam L. 
 
            Graham, Ph.D., psychologist, for pain and stress management 
 
            program.  On June 12, 1989, Dr. Boulden examined claimant 
 
            who presented with complaints of significant pain in his 
 
            left leg.  This pain was precluding him from the recommended 
 
            therapy and stress management.  Therefore, he was referred 
 
            to the Spine Diagnostic and Treatment Center on July 12, 
 
            1989, for evaluation.  A myelogram CT scan was taken on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            August 9, 1989, and according to Ronald Henderson, M.D., 
 
            orthopedic surgeon, did not show any surgical lesions.  On 
 
            September 13, 1989, Dr. Henderson opined that there is no 
 
            further need for evaluation or surgical intervention.  He 
 
            gave claimant as estimated impairment rating of 20 percent 
 
            and referred him for a rehabilitation evaluation later in 
 
            the month (ex. A, pp. 186-197).  
 
            
 
                 Claimant returned to the Spine Diagnostic and Treatment 
 
            Center where a multi-disciplinary team of specialsits 
 
            conducted a comprehensive assessment.  On October 6, 1989, 
 
            James Weinstein, reconstructive spinal surgeon and medical 
 
            director of the center, reported, in pertinent part, "Again, 
 
            we have reviewed all of the medical information available to 
 
            us and we feel that your back at this time is certainly 
 
            solid, stable and healed, and that you are having a great 
 
            deal of pain primarily as the result of severe 
 
            deconditioning and muscle spasming."  Claimant was then 
 
            admitted to the rehabilitation program for chronic low back 
 
            pain on October 9, 1989, and participated for two weeks 
 
            until October 20, 1989.  A report co-signed by Dr. Weinstein 
 
            and Ted Wernimont, M.S.W., rehabilitation director, ended 
 
            claimant's healing period on October 23, 1989, again noting 
 
            that claimant's pain was largely due to lack of proper 
 
            muscle conditioning, muscle spasming and muscle tightness, 
 
            and not to the specific low back injury.  He was advised to 
 
            continue with the exercise and aerobic program prescribed at 
 
            the center.  They reported that, "We continue to believe 
 
            that you are 100% rehabilitatable and can get back to 
 
            active, gainful employment on a full 40-hour per week basis.  
 
            We feel it is going to take a considerable effort on your 
 
            part with assistance from the insurance representative and 
 
            the vocational rehabilitation specialist."  (ex. A, pp. 
 
            198-215).  
 
            
 
                 On January 9, 1990, claimant was referred by defendant 
 
            insurance company to Kevin Smith, M.D., for evaluation.  
 
            Claimant presented with a flare-up of back pain after 
 
            working at a counter height table taking apart a mower.  Dr. 
 
            Smith referred claimant to Des Moines Bone and Joint Clinic 
 
            for evaluation.  He was seen by William G. Sprague, D.P.M., 
 
            on February 8, 1990.  Dr. Sprague diagnosed a dropped foot 
 
            deformity with pain under the metatarsal heads.  On March 7, 
 
            1990, claimant underwent EMG and nerve conduction studies at 
 
            Mercy Hospital.  The results indicated no areas of 
 
            diagnostic abnormality and mild peripheral neuropathy (ex. 
 
            A).
 
            
 
                 Claimant was sent by Barbara A. Chaldy, rehabilitation 
 
            consultant, to Todd F. Hines, Ph.D., for a psychological 
 
            evaluation.  Dr. Hines diagnosed recurrent major depression 
 
            (ex. A, p. 271).
 
            
 
                 After being evaluated by Dr. Hines on July 5, 1990, 
 
            claimant presented to the emergency room at Charter 
 
            Community Hospital on July 22, 1990, with severe depression 
 
            due to a chronic back injury and intractable pain.  He was 
 
            then voluntarily admitted to the inpatient mental health 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            unit.  He participated in psychotherapy and progressed to 
 
            the point of being able to be discharged on July 27, 1990 
 
            (ex. A, pp. 209-371).
 
            
 
                 On October 16, 1990, claimant was evaluated by Martin 
 
            S. Rosenfeld, D.O., for complaints referable to back and 
 
            left lower extremity problems.  Dr. Rosenfeld made no 
 
            recommendations regarding claimant's back condition, 
 
            however, he recommended surgical intervention on the left 
 
            foot (ex. A, pp. 247-248).
 
            
 
                 Claimant experienced a flare-up of back and leg pain 
 
            and Dr. Smith admitted him to Des Moines General Hospital on 
 
            March 1, 1991.  On March 4 claimant was given an epidural 
 
            steroid injection from a caudal approach.  On March 7 he 
 
            underwent left foot surgery.  He was discharged on March 10, 
 
            1991 (ex. A, pp. 372-407).  
 
            
 
                 On October 10, 1991, Dr. Sprague indicated that, in his 
 
            opinion, claimant has reached maximum medical benefit from 
 
            his foot surgery.  It was his opinion that claimant has a 21 
 
            percent lower extremity involvement, as far as his loss of 
 
            range of motion of the ankle and subtalar joint (ex. 8, pp. 
 
            253-254).
 
            
 
                 On December 20, 1991, Barbara Chaldy reported that 
 
            claimant's file with their service was being closed because 
 
            his medical condition has stabilized and his mental attitude 
 
            had improved (ex. C, p. 69).
 
            
 
                                conclusions of law
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of August 23, 1988, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, 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 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The evidence in this case clearly demonstrates that 
 
            claimant has sustained a permanent impairment as a result of 
 
            his work-related injury.  Therefore, the next question to be 
 
            resolved is the extent of claimant's industrial disability 
 
            resulting from the effect of his back and foot condition.  
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 
 
            loss of earning capacity and not a mere `functional 
 
            disability' to be computed in the terms of percentages of 
 
            the total physical and mental ability of a normal person.  
 
            The essence of an earning capacity inquiry then, is not how 
 
            much has the claimant been functionally impaired, but 
 
            whether that impairment, in combination with the claimant's 
 
            age, education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within her restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich, 258 N.W. 899, 902;  
 
            Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 
 
            Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 In this case, claimant was 43 years old when he was 
 
            injured in 1988.  He is now 47 years old.  Claimant is in 
 
            the peak earning years of his employment career.  This makes 
 
            his disability worse than it would be for a younger or older 
 
            employee.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); and McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Dec. 1989).
 
            
 
                 Mr. Little graduated from high school in 1963.  He has 
 
            received no other formal training.  A psychological 
 
            evaluation was performed by James Prickett, psychologist, on 
 
            January 22, 1990, at the Iowa State Vocational 
 
            Rehabilitation facility.  Claimant was administered the 
 
            Wechsler Adult Intelligence Scale - Revised (WAIS-R) and 
 
            obtained a verbal IQ score of 78, performance IQ score of 79 
 
            and a full scale IQ score of 78.  The results indicate that 
 
            Mr. Little functions within the boarderline range of 
 
            intelligence.  Other standardized tests indicated that 
 
            claimant had sound-symbol confusion and difficulty with 
 
            verbal and visual sequencing (ex. A, pp. 284-285).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's work history is primarily in the 
 
            construction field as a manual laborer.  This work was 
 
            primarily heavy in nature and physically demanding.  In view 
 
            of assessments made by Dr. Rosenfeld and Dr. Sprague, 
 
            claimant cannot perform his past relevant work activity.  
 
            Essentially, he has been physically restricted to sedentary 
 
            or light activities with no repetitive bending, stooping, 
 
            twisting, or climbing of stairs.  He is also restricted to 
 
            lifting no more than 15 to 20 pounds occasionally and must 
 
            be able to alternate between sitting and standing in order 
 
            to achieve maximum comfort (ex. B & ex. A, pp. 253).  
 
            
 
                 At the time of his injury on August 23, 1988, claimant 
 
            was earning $13.25 per hour plus benefits.  Claimant has not 
 
            worked since his injury.  His source of income is a 
 
            disability pension from Local 177 of $931 per month and 
 
            social security disability benefits of $434 per month.  
 
            Claimant has also received 100.143 weeks of workers' 
 
            compensation benefits at the rate of $260.38 per week.  Jobs 
 
            which has been identified in the competitive market within 
 
            claimant's restrictions pay between $5 and $6.25 per hour.  
 
            Claimant has suffered a reduction in earning capacity as a 
 
            result of his work-related injury.  Claimant testified he 
 
            contacted employer in October 1989 regarding a position, but 
 
            was informed that they had no work for him at the time.  A 
 
            defendant employer's refusal to give any sort of work to a 
 
            claimant after he suffers an injury may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 Claimant conceded that he has made no effort to find 
 
            work since being released on October 22, 1989, and again on 
 
            August 22, 1991.  Claimant alleges he is unable to perform 
 
            any gainful work activity due to severe and intractable 
 
            pain.  There is conflicting medical and vocational evidence 
 
            regarding claimant's contentions.  Roger Marquardt, a 
 
            vocational specialist, hired by the claimant to perform an 
 
            evaluation in October 1991, concluded that claimant is 
 
            unemployable (ex. A, pp. 274-277).  Jan Hardcopf-Bickley, a 
 
            medical/vocational rehabilitation specialist, hired by 
 
            defendants in February 1992 opined that jobs exist in the 
 
            competitive market which claimant would be able to perform 
 
            within his residual functional capacity (ex. D).  An 
 
            evaluation performed at South Des Moines Sports Medicine 
 
            Clinic by Michael J. LaVelle, P.T., on September 27, 1991, 
 
            indicated that a true assessment of claimant's condition 
 
            could not be made because range of motion measurements were 
 
            limited by claimant's allegations of pain (ex. A, p. 280).  
 
            
 
                 Throughout the long treatment process and attempts at 
 
            vocational rehabilitation, claimant has resisted cooperating 
 
            with medical management programs to increase his 
 
            conditioning and reduce the level of pain.  He alleges an 
 
            inability to work and asks for permanent total disability 
 
            benefits.  However, the medical evidence does not support 
 
            claimant's contentions.  Dr. Rosenfeld and Dr. Sprague 
 
            limited claimant to light and sedentary work activity.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Neither doctor stated that claimant is unable to perform any 
 
            substantial and gainful work activity.  Pain that is not 
 
            substantiated by clinical findings is not a substitute for 
 
            impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
            Industrial Commissioner Report 419, 425 (1981).  
 
            Furthermore, claimant's motivation is suspect.  Claimant's 
 
            combined earnings from a disability pension and social 
 
            security is around $16,300 per year.  This would exceed his 
 
            yearly earnings if he earned $6 per hour doing entry level 
 
            light and sedentary work.  Claimant has made no attempt to 
 
            find work and does not appear motivated to do so in the 
 
            future.  Claimant's refusal to make a bona fide effort to 
 
            find work and to cooperate with the job placement efforts 
 
            made by vocational rehabilitation specialists affects his 
 
            industrial disability.  Creasy v. Peterson Business 
 
            Accounting, file number 725325 (App. Dec. January 28, 1988).
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            75 percent industrial disability and is entitled to 375 
 
            weeks of permanent partial disability benefits.  
 
            
 
                 The parties have agreed that claimant is entitled to 
 
            intermittent healing period benefits from August 24, 1988 
 
            through October 22, 1989; July 22, 1990 through July 27, 
 
            1990; and March 6, 1991 through August 22, 1991.  Since 
 
            claimant cannot simultaneously receive healing period and 
 
            permanent partial disability benefits, these benefits will 
 
            be paid from October 23, 1989 through July 21, 1990; from 
 
            July 28, 1990 through March 5, 1991; and from August 23, 
 
            1991 and continuing until paid. 
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant three hundred 
 
            seventy-five weeks of permanent partial disability benefits 
 
            at the rate of two hundred sixty and 38/100 dollars 
 
            ($260.38) per week from October 23, 1989 through July 21, 
 
            1990; from July 28, 1990 through March 5, 1991 and from 
 
            August 23, 1991 and continuing until paid.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Roger Owens
 
            Attorney at Law
 
            840 5th Ave
 
            Des Moines, Iowa  50309-1398
 
            
 
            Mr. Cecil Goettsch
 
            Attorney at Law
 
            801 Grand Ave, STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1803
 
                                          Filed March 16, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH LITTLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 895142
 
            RINGLAND-JOHNSON-CROWLEY,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            The only issue presented for resolution is the extent of 
 
            claimant's permanent partial disability benefits. 
 
            In view of claimant's age (43-47); high school education; 
 
            borderline intellectual functioning; past relevant work 
 
            (construction laborer); physical restrictions; inability to 
 
            perform his past relevant work activity; refusal of employer 
 
            to find work accommodating claimant's restrictions; 
 
            claimant's lack of motivation to return to the competitive 
 
            job market; and medical and vocational reports which 
 
            conflict with claimant's contentions that he is unable to 
 
            perform any substantial and gainful work activity, he was 
 
            awarded 75 percent permanent partial disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM NOEHREN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 849671
 
            vs.                           :                   895573
 
                                          :
 
            MIDWEST DRIVERS,              :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by William Noehren against his employer, Midwest 
 
            Drivers, and its insurance carrier, Travelers Insurance 
 
            Company.  File number 849671 deals with an injury that 
 
            occurred on March 26, 1987.  File number 895573 deals with 
 
            an injury that occurred on August 27, 1988.  Claimant seeks 
 
            compensation for permanent partial disability over and above 
 
            the 25 weeks which have been previously paid to him.
 
            
 
                 The case was heard at Storm Lake, Iowa on October 4, 
 
            1990.  The evidence consists of testimony from the claimant 
 
            and joint exhibits 1 through 52.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the claimant, the 
 
            following findings of fact are made.
 
            
 
                 William Noehren is a 48-year-old married man who is a 
 
            high school graduate.  Most of his work history has been as 
 
            a truck driver.  Part of his truck driving has been as an 
 
            owner-operator.
 
            
 
                 Noehren commenced employment with Midwest Drivers on 
 
            May 15, 1986.  His work with the employer consists of 
 
            over-the-road truck driving, normally in a two-person 
 
            operation where the truck was driven 24 hours per day, six 
 
            days per week.  Claimant had no substantial neck or back 
 
            problems prior to March 26, 1987.
 
            
 
                 On March 26, 1987, while opening the back doors of the 
 
            trailer, a pallet fell out, hit him in the back of the neck 
 
            and knocked him to the ground.  The event was reported to 
 
            the dispatcher (exhibit 36).
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant's primary treating physician following the 
 
            injury was Michael W. Crane, M.D., an orthopaedic surgeon.  
 
            Dr. Crane considered the injury to be a cervical strain.  He 
 
            rated claimant as having a five percent permanent impairment 
 
            as a result of the injury (exhibit 1, page 4; exhibit 2; 
 
            exhibit 21).  Dr. Crane felt that the August 27, 1988 injury 
 
            was related to the March 26 incident, but that the symptoms 
 
            may have been caused by an exacerbation.  Dr. Crane last saw 
 
            claimant on August 29, 1988.
 
            
 
                 Following treatment by Dr. Crane, claimant's medical 
 
            care was transferred to orthopaedic surgeon J. Michael 
 
            Donohue, M.D.  Dr. Donohue placed claimant in a physical 
 
            therapy program which provided much improvement during the 
 
            winter of 1988-89 (exhibits 13, 14 and 16).  Dr. Donohue 
 
            felt that claimant's underlying condition is degenerative 
 
            disc disease of the cervical spine.  He recommended that 
 
            claimant permanently restrict his activities to lifting of 
 
            no more than 100 pounds, driving no more than 10 hours at a 
 
            time and spending no more than 15 hours per day in a truck 
 
            (exhibit 6).  Dr. Crane agreed with the restrictions 
 
            recommended by Dr. Donohue (exhibit 1, pages 6, 7 and 12).
 
            
 
                 Claimant was evaluated by Carol A. Ley, M.D.  Dr. Ley 
 
            felt that claimant could work without restrictions and had 
 
            no permanent impairment.  She felt that his injury had been 
 
            a cervical and lumbar strain (exhibits 4, 8 and 9).
 
            
 
                 It is found that the activity restrictions imposed by 
 
            Dr. Donohue are correct because they are corroborated by Dr. 
 
            Crane and also because Dr. Donohue is quite familiar with 
 
            claimant's condition in view of his status as a treating 
 
            physician.  The impairment rating made by Dr. Crane is 
 
            likewise found to be correct.  The evidence from Dr. Ley is 
 
            found to be less persuasive than that from Drs. Crane or 
 
            Donohue because she was primarily an evaluating physician.
 
            
 
                 It is found that the permanent disability is related 
 
            entirely to the March 26, 1987 injury.  The August 27, 1988 
 
            injury is found to have been only an exacerbation of that 
 
            original injury.
 
            
 
                 Claimant has continued to work as a truck driver, 
 
            despite the fact that it requires him to violate some of the 
 
            restrictions which the doctors have recommended.  He 
 
            occasionally is compelled to violate the lifting 
 
            restriction.  He continually violates the restriction 
 
            against spending more than 15 hours per day in a truck.  
 
            Claimant's income has not been reduced since the injury; in 
 
            fact, it has increased (exhibits 48-51).
 
            
 
                 Claimant, in view of his history of injury, has an 
 
            impediment to employment which would place him at a 
 
            disadvantage when competing for many types of work as 
 
            established by the testimony from vocational counselor 
 
            Richard Naeve (exhibit 45, pages 6 and 7).  Claimant has 
 
            continuing complaints and symptoms.  He is not able to work 
 
            and earn as he currently does without some aggravation of 
 
            his condition.  He stated that he obtains some relief on 
 
            occasion from a TENS unit, medication, chiropractic 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            treatments and simply resting.  It is found that the lack of 
 
            any reduction in claimant's actual earnings is not reliable 
 
            evidence of a lack of any loss of earning capacity.  When 
 
            the activity restrictions are considered in light of his 
 
            age, qualifications, the diagnosed medical condition and 
 
            other factors evaluated when determining earning capacity, 
 
            it is found that William Noehren has experienced a 15 
 
            percent reduction in his earning capacity as a result of the 
 
            March 26, 1987 injury.  The August 27, 1988 injury was only 
 
            a temporary aggravation of the condition caused by the 1987 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 Defendants admitted the occurrence of both injuries.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 26, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 While the degenerative condition probably preexisted 
 
            March 26, 1987, it was not routinely symptomatic prior to 
 
            the occurrence of the injury.  Claimant is therefore 
 
            entitled to recover for the disability which has resulted.
 
            
 
                 Based upon the impairment rating wherein Dr. Crane 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            attributed a five percent permanent impairment to the 
 
            injury, a causal connection is found and concluded to exist 
 
            between the injury and the disability.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The facts of claimant's injury and his activity 
 
            restrictions are important considerations.  This is one case 
 
            where a comparison of pre-injury and post-injury earnings 
 
            does not provide a reliable indicator of earning capacity 
 
            changes.  This is particularly true since claimant has 
 
            violated his medical restrictions and endured increased 
 
            symptoms in order to maintain his level of earnings.  When 
 
            all pertinent factors of industrial disability are 
 
            considered, it is determined that William Noehren has a 20 
 
            percent permanent partial disability under the provisions of 
 
            Iowa Code section 85.34(2)(u).  This entitles him to recover 
 
            100 weeks of permanent partial disability compensation, an 
 
            amount which is 75 weeks more than that previously paid by 
 
            the employer.
 
            
 
                 The parties stipulated that the commencement date for 
 
            permanent partial disability, in the event such is awarded, 
 
            is April 2, 1988.  That stipulation will be honored.  It 
 
            appears to reflect the date for the commencement of the 
 
            additional permanent partial disability compensation, rather 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            than that which became payable at the end of the healing 
 
            period.
 
            
 
                 Since the disability has been determined to be 
 
            attributable to the March 26, 1987 injury, the proper rate 
 
            of compensation is $401.76 per week as stipulated in the 
 
            prehearing report.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that, under file number 849671, 
 
            defendants pay William Noehren an additional seventy-five 
 
            (75) weeks of permanent partial disability compensation 
 
            based upon the March 26, 1987 injury payable at the 
 
            stipulated rate of four hundred one and 76/100 dollars 
 
            ($401.76) per week commencing April 2, 1988.
 
            
 
                 IT IS FURTHER ORDERED that, with regard to file number 
 
            895573, claimant take nothing further.
 
            
 
                 IT IS FURTHER ORDERED that all the foregoing permanent 
 
            partial disability compensation which has been awarded is 
 
            past due and owing and shall be paid to the claimant in a 
 
            lump sum together with interest pursuant to Iowa Code 
 
            section 85.30 computed from the date each weekly payment 
 
            came due until the date of its actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of these 
 
            proceedings are assessed against defendants pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P.O. Box 455
 
            Spirit Lake, Iowa  51360
 
            
 
            Mr. Maynard M. Mohn
 
            Attorney at Law
 
            103 North Ninth Street
 
            P.O. Box 72
 
            Estherville, Iowa  51334
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed January 23, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM NOEHREN,    :
 
                      :
 
                 Claimant, :
 
                      :         File Nos. 849671
 
            vs.       :                   895573
 
                      :
 
            MIDWEST DRIVERS,    :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Forty-eight-year-old truck driver with cervical strain, five 
 
            percent impairment rating and restrictions against lifting 
 
            more than 100 pounds, driving for more than 10 hours at a 
 
            time or being in a truck for more than 15 hours per day, was 
 
            awarded 20 percent permanent partial disability.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         MARION PAYTON,                :
 
                                       :        File No. 895808
 
              Claimant,                :
 
                                       :          A P P E A L
 
         vs.                           :
 
                                       :        D E C I S I O N
 
         SHELLER-GLOBE CORPORATION,    :
 
                                       :
 
              Employer,                :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
                I.  Whether the deputy erred in ruling that claimant 
 
              had proved a causal connection between his alleged 
 
              disability and the injury which occurred on May 16, 
 
              1988.
 
         
 
               II.  Whether the deputy erred in ruling that the 
 
              claimant's injury extended into the body as a whole.
 
         
 
              III.  Whether the deputy erred in ruling that claimant 
 
              sustained a 50% industrial disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed December 10, 1991 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.
 
         
 
              *****
 
         
 
              Claimant, age 31, worked for United Technology Automotive 
 
         and its predecessor, Sheller-Globe, from August 1984 until he was 
 
         compelled to leave United Technology Automotive permanently in 
 
         August 1989 for medical reasons upon the advice of his physician.  
 
         Claimant's duties at United Technology Automotive varied from 
 
         time to time.  He was assigned to perform a "pourhead" operator 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         job which required claimant to load vinyl coverings or skins into 
 
         a mold.  He was also assigned to a job called "pulling molts."  
 
         Claimant said that most of his problems occurred when he was 
 
         assigned to making "bumpers" which required him to pick up molds.  
 
         Claimant said that a considerable amount of his work at United 
 
         Technology Automotive required overhead lifting and pulling and 
 
         gripping.  The repetitive gripping and overhead use of his arms 
 
         eventually began to cause claimant physical pain and numbness in 
 
         both of his wrists, hands and shoulders in 1988.  Claimant also 
 
         experienced a loss of grip strength.  Claimant remained at work 
 
         after the onset of these symptoms and tried other jobs but 
 
         continued to experience these symptoms in jobs requiring 
 
         repetitive motion and gripping.  As a consequence, claimant 
 
         suffered a cumulative trauma or gradual injury to both of his 
 
         wrists, hands, arms and shoulders as a result of his repetitive 
 
         and overhead work at United Technology Automotive.  The injury 
 
         clearly extended beyond the arm and into the shoulder or body as 
 
         a whole.  The injury was eventually treated by a surgical 
 
         modification of the shoulder clavicle, a portion of the shoulder 
 
         joint above the head of the upper arm.
 
         
 
              Claimant alleges that his repetitive or cumulative trauma 
 
         injury occurred on May 16, 1988.  The significance of this date 
 
         is unclear as claimant was not compelled to leave work because of 
 
         pain to seek extensive treatment until August 1988.  However, the 
 
         date of the injury does not appear in dispute.  The parties 
 
         stipulated to this date and to the applicable rate of 
 
         compensation as a result of this proceeding.
 
         
 
              According to the records of John Koch, M.D., claimant 
 
         suffered left shoulder problems in March 1986 when he was pushed 
 
         into a Plexiglass wall.  As a result of this injury, he was off 
 
         work for approximately one month.  Dr. Koch diagnosed at the time 
 
         a shoulder separation.  Another physician, claimant's family 
 
         doctor, after ruling out rotator cuff tear, diagnosed his 
 
         condition as tendonitis.  In his answers to interrogatories, 
 
         claimant stated that he had an auto accident in January 1986 or 
 
         87 but that he was not injured as a result of this accident.  
 
         There is no other evidence to the contrary.
 
         
 
              According to the records of John Bailey, M.D., submitted 
 
         into the evidence, claimant first began having problems with his 
 
         wrists and shoulders in 1985.  However, also appearing in these 
 
         records is a report from Dr. Bailey indicating that claimant had 
 
         surgery to his left shoulder in August 1987 and to his right 
 
         shoulder in February 1988.  These records are clearly wrong given 
 
         the actual dates of surgery in other records admitted into the 
 
         evidence.  Consequently, little can be deciphered from Dr. 
 
         Bailey's records.
 
         
 
              Pursuant to the recommendations of a treating orthopedic 
 
         surgeon, William J. Pontarelli, M.D., claimant left work on 
 
         August 31, 1988.  At that time Dr. Pontarelli began extensive 
 
         treatment of claimant upon a diagnosis of bilateral carpal tunnel 
 
         syndrome and bilateral osteolysis of the shoulders.  This 
 
         treatment eventually lead to bilateral wrist and shoulder 
 
         surgeries to correct these problems.  Approximately one inch of 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         clavicle bone was removed from both of claimant's shoulders in 
 
         these surgeries.  The first surgery occurred in September 1988 
 
         and also involved a carpal tunnel syndrome release of the left 
 
         wrist and a release of the ulnar Guyons canal.  A similar surgery 
 
         was performed on claimant's right shoulder and wrist in November 
 
         1988.  Dr. Pontarelli released claimant to return to work 
 
         following recovery from these surgeries but permanently 
 
         restricted claimant from activity involving overhead lifting, 
 
         repetitive lifting, lifting over 40 pounds or working more than 
 
         40 hours per week.
 
         
 
              When claimant returned to work on June 5, 1989, he was 
 
         assigned to "picking foam", a job within his restrictions.  
 
         Claimant continued to experience symptoms of pain and numbness 
 
         but he admitted at hearing that he was able to perform this work 
 
         and remain employed.  However, after a few weeks, claimant was 
 
         assigned to more demanding repetitive work and he began again to 
 
         experience severe pain and numbness in his wrists, arms and 
 
         shoulders.  Claimant left work again upon Dr. Pontarelli's advice 
 
         on August 15, 1989, for further treatment.  Claimant has not 
 
         returned to United Technology Automotive since that time.  Dr. 
 
         Pontarelli continued to treat claimant over the next several 
 
         months.  Claimant worked briefly at a telemarketing job upon a 
 
         work release issued by Dr. Pontarelli in August 1990.  Claimant 
 
         was compelled to leave this job after only a few days due to a 
 
         recurrence of pain while dialing the phone.  At that time, 
 
         claimant returned to Dr. Pontarelli again for further treatment.  
 
         Claimant subsequently became employed in a job which required him 
 
         to mow grass and to sell tickets at a ticket counter.  Claimant 
 
         was apparently physically able to perform this work as he did not 
 
         end this work until he was laid off.
 
         
 
              It is found that claimant reached maximum healing from his 
 
         repetitive work injury on December 27, 1989.  This finding is 
 
         based upon the office note of Dr. Pontarelli dated December 27, 
 
         1990 (Exhibit A, page 12).  Dr. Pontarelli reported that claimant 
 
         was stable in this office note and noted that claimant should 
 
         seek vocational rehabilitation.  However, the date of this office 
 
         note, given the other pages in the exhibit, is clearly erroneous.  
 
         The proper date for this office note was a year earlier on 
 
         December 27, 1989.
 
         
 
              In his letter report of October 2, 1991, Dr. Pontarelli 
 
         opines that claimant only temporarily aggravated his prior work 
 
         injury when he returned to work in June 1989.  Dr. Pontarelli 
 
         does not believe that this injury caused any permanent damage to 
 
         claimant's condition.  As a result of the work injury of May 16, 
 
         1988, claimant has a significant permanent impairment to the body 
 
         as a whole.  This finding is based upon the views of the primary 
 
         treating physician, Dr. Pontarelli, who opines that claimant 
 
         suffers from a 17 percent total impairment to the wrist and 
 
         shoulder on the right and 15 percent permanent partial impairment 
 
         on the left as a result of the original injury causing the 
 
         surgery.  Whether or not this rating is to the body as a whole is 
 
         unknown.  Clearly the rating is significant.  Also, claimant 
 
         continues to have the same work restrictions as imposed by Dr. 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Pontarelli in June 1989.  However, Dr. Pontarelli noted in his 
 
         reports that he never advised claimant that he is permanently 
 
         unable to work at all, noting that he frequently advised claimant 
 
         to seek vocational rehabilitation and retraining.
 
         
 
              With reference to claimant's loss of earning capacity, on 
 
         his own, claimant has followed the advice of Dr. Pontarelli and 
 
         sought vocational rehabilitation counseling.  As a result, he has 
 
         taken a math refresher course to begin a program of retraining.  
 
         According to exhibit 4 claimant has made a good faith effort to 
 
         seek alternative employment in the geographical area of his 
 
         residence.  He unsuccessfully attempted telemarketing work.  
 
         However, he was able to perform a job involving mowing grass, 
 
         parking cars and selling tickets at concerts.  This job paid 
 
         $4.00 an hour before claimant was laid off.  Exhibit 1 indicates 
 
         that claimant has suffered a 90 percent loss of earnings as a 
 
         result of the work injury at the present time.  Claimant's past 
 
         employment primarily consists of unskilled manual labor, the work 
 
         for which he is significantly restricted from performing by Dr. 
 
         Pontarelli.
 
         
 
              However, claimant has a high school education.  He 
 
         apparently was able to successfully complete the educational 
 
         refresher course.  Claimant is relatively young at age 31.  The 
 
         effective age upon claimant's disability is significantly less 
 
         than would be the case for an older individual.  Finally, as 
 
         stated by Dr. Pontarelli, claimant is able to work.  His 
 
         disability is not such that only odd jobs are available to him.  
 
         Claimant is clearly able to perform nonrepetitive lighter duty 
 
         labor work and retail sales work, albeit at much lower wages and 
 
         fringe benefits than he received at United Technology Automotive.
 
         
 
              Shortly before hearing, claimant was offered a return to 
 
         work by United Technology Automotive within his work 
 
         restrictions.*****In any event, at the time of the hearing, 
 
         claimant was not employed by United Technology Automotive and the 
 
         finding of loss of earning capacity in this decision is made 
 
         without regard to this offer of reemployment.  Obviously, if 
 
         there is a successful change in employment status after the 
 
         hearing as a result of this offer or there is a refusal of 
 
         suitable reemployment by claimant after the hearing, such would 
 
         be a material change in the conditions upon which the finding 
 
         below is based.
 
         
 
              Therefore, although claimant failed to show that he is 
 
         odd-lot and not able to compete successfully in the competitive 
 
         labor market, he has shown very significant disability.  It is 
 
         found that the work injury of May 16, 1988, was a cause of a 50 
 
         percent loss of earning capacity.  Based upon Dr. Pontarelli's 
 
         opinions, no part of this permanent disability is attributable to 
 
         any prior injury or subsequent injury after he returned to work 
 
         in June 1989.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed December 10, 1991 are adopted as set forth below.  
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
                I.  A fighting issue in this case is whether the injury of 
 
         May 16, 1988, extended beyond the arm and into the shoulder or 
 
         body as a whole.*****[Claimant's repetitive motion injury 
 
         involves both the arms and the shoulders.  Claimant has undergone 
 
         shoulder surgery on both shoulders.  Claimant has had a clavicle 
 
         resection.  However, a clavicle resection does not necessarily 
 
         involve impairment extending beyond the scheduled member.  See 
 
         Prewitt v. Firestone Tire and Rubber Company, (Appeal Decision 
 
         August 12, 1992).
 
         
 
              Whether claimant's condition will be compensated as a 
 
         scheduled member or industrially is determined by the situs of 
 
         the impairment resulting from the injury, not by the situs of the 
 
         injury.  In this case, claimant's injury has resulted in a rating 
 
         of impairment to both arms.  The ratings are unclear whether they 
 
         are to the arms alone, or whether they include impairment to the 
 
         shoulder and beyond the joint.  However, the medical evidence 
 
         also contains a finding that, as a result of his work injury, 
 
         claimant has severe osteoarthritis of the left shoulder.  This 
 
         condition constitutes impairment of the shoulder beyond the 
 
         joint, and thus claimant is to be compensated on an industrial 
 
         disability basis.]
 
         
 
               II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, l985).
 
         
 
              In the case sub judice, it was found that claimant suffered 
 
         a 50 percent loss of earning capacity as a result of the work 
 
         injury.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 250 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 50 percent 
 
         of 500 weeks; the maximum allowable for an injury to the body as 
 
         a whole in that subsection.
 
         
 
              With reference to the offer of reemployment by United 
 
         Technology Automotive shortly before hearing, if claimant does 
 
         subsequently return to work or if claimant refuses a valid offer 
 
         to return to suitable work, this agency is available to review 
 
         the award rendered herein upon a proper petition for 
 
         review-reopening in this case.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant may be entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until claimant returns to work or is medically capable of 
 
         returning to substantially similar work to work he was performing 
 
         at the time of the injury; or, until it is indicated that 
 
         significant improvement from the injury is not anticipated, 
 
         whichever occurs first.  It was found that claimant reached 
 
         maximum healing or was stabilized on December 27, 1989.  The 
 
         record is consistent with the stipulation of the parties as to 
 
         the times off work prior to his reaching maximum healing.  
 
         Healing period benefits will be awarded accordingly.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  Claimant is entitled to an order of 
 
         reimbursement only if claimant has paid those expenses.  
 
         Otherwise, claimant is entitled to only an order directing the 
 
         responsible defendant to make such payments.  See Krohn v. State, 
 
         420 N.W.2d 463 (Iowa 1988).
 
         
 
              In the case at bar, the parties stipulated as to the causal 
 
         connection of the medical expenses to the disputed shoulder 
 
         injury.  As such an injury was found in this case, the requested 
 
         medical benefits will be awarded in full.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay to claimant two hundred fifty (250) 
 
         weeks of permanent partial disability benefits at the rate of two 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         hundred forty-seven and 26/l00 dollars ($247.26) per week from 
 
         December 28, 1989.
 
         
 
              That defendant shall pay to claimant healing period benefits 
 
         from August 31, 1988 through June 4, 1989 and again from August 
 
         16, 1989 through December 27, 1989, at the rate of two hundred 
 
         forty-seven and 26/l00 dollars ($247.26) per week.
 
         
 
              That defendant shall pay the medical expenses listed in the 
 
         prehearing report and the medical mileage expenses for seven 
 
         hundred (700) miles at the rate of twenty-one cents ($.21) per 
 
         mile.  Claimant shall be reimbursed for any of these expenses 
 
         paid by him.  Otherwise, defendant is ordered to pay the provider 
 
         directly along with any lawful late payment penalties imposed 
 
         upon the account by the provider.
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid as set forth in the prehearing report.
 
         
 
              That defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant shall pay the costs of this matter including 
 
         the transcription of the hearing.
 
         
 
              That defendant shall file an activity report on the payment 
 
         of this award as requested by this agency pursuant to rule 343 
 
         IAC 3.1.
 
         
 
         
 
              Signed and filed this ____ day of April, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                             BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. Richard Johnson
 
         Attorney at Law
 
         P O Box 607
 
         1715 First Avenue SE
 
         Cedar Rapids, Iowa  52406
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1803.1; 5-1803
 
                                             Filed April 30, 1993
 
                                             BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARION PAYTON,                :
 
                                          :        File No. 895808
 
                 Claimant,                :
 
                                          :          A P P E A L
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SHELLER-GLOBE CORPORATION,    :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1803.1
 
            It was held that the anatomical situs of the impairment, not 
 
            the situs of the injury, governs whether or not the injury 
 
            is to the body as a whole.
 
            
 
            5-1803
 
            Causal connection and extent of disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARION PAYTON,                :
 
                                          :       File No. 895808
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            SHELLER-GLOBE CORPORATION,    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Marion 
 
            Payton, claimant, against United Technology Automotive f/k/a 
 
            Sheller-Globe Corporation, employer (hereinafter referred to 
 
            as UT), who is a self-insured defendant, for workers' com
 
            pensation benefits as a result of an alleged injury on May 
 
            16, 1988.  On October 22, 1991, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On May 16, 1988, claimant received an injury which 
 
            arose out of and in the course of his employment with UT.  
 
            What is in dispute with reference to this date of injury is 
 
            the nature of the injury and whether or not it extends into 
 
            the body as a whole.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from August 31, 1988 through June 4, 
 
            1989 and from August 16, 1989 through August 20, 1990.  
 
            Defendants agree that claimant was not working during these 
 
            periods of time.
 
            
 
                 3.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $247.26.
 
            
 
                 4.  It was stipulated that the medical providers would 
 
            testify that the medical bills submitted by claimant for 
 
            payment at hearing were fair and reasonable and defendant is 
 
            not offering contrary evidence.  It was further stipulated 
 
            that these bills are causally connected to the medical con
 
            dition upon which the claim was based but the issue of their 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            causal connection to any work injury remains an issue to be 
 
            decided herein.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  The findings set forth below are based in 
 
            part upon this credibility finding.  From his demeanor while 
 
            testifying, claimant is found credible.
 
            
 
                 Claimant, age 31, worked for UT and its predecessor, 
 
            Sheller-Globe, from August 1984 until he was compelled to 
 
            leave UT permanently in August 1989 for medical reasons upon 
 
            the advice of his physician.  Claimant's duties at UT varied 
 
            from time to time.  He was assigned to perform a "pourhead" 
 
            operator job which required  claimant to load vinyl cover
 
            ings or skins into a mold.  He was also assigned to a job 
 
            called "pulling molts."  Claimant said that most of his 
 
            problems occurred when he was assigned to making "bumpers" 
 
            which required him to pick up molds.  Claimant said that a 
 
            considerable amount of his work at UT required overhead 
 
            lifting and pulling and gripping.  The repetitive gripping 
 
            and overhead use of his arms eventually began to cause 
 
            claimant physical pain and numbness in both of his wrists, 
 
            hands and shoulders in 1988.  Claimant also experienced a 
 
            loss of grip strength.  Claimant remained at work after the 
 
            onset of these symptoms and tried other jobs but continued 
 
            to experience these symptoms in jobs requiring repetitive 
 
            motion and gripping.  As a consequence, claimant suffered a 
 
            cumulative trauma or gradual injury to both of his wrists, 
 
            hands, arms and shoulders as a result of his repetitive and 
 
            overhead work at UT.  The injury clearly extended beyond the 
 
            arm and into the shoulder or body as a whole.  The injury 
 
            was eventually treated by a surgical modification of the 
 
            shoulder clavicle, a portion of the shoulder joint above the 
 
            head of the upper arm.
 
            
 
                 Claimant alleges that his repetitive or cumulative 
 
            trauma injury occurred on May 16, 1988.  The significance of 
 
            this date is unclear as claimant was not compelled to leave 
 
            work because of pain to seek extensive treatment until 
 
            August 1988.  However, the date of the injury does not 
 
            appear in dispute.  The parties stipulated to this date and 
 
            to the applicable rate of compensation as a result of this 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            proceeding.
 
            
 
                 According to the records of John Koch, M.D., claimant 
 
            suffered left shoulder problems in March 1986 when he was 
 
            pushed into a Plexiglass wall.  As a result of this injury, 
 
            he was off work for approximately one month.  Dr. Koch diag
 
            nosed at the time a shoulder separation.  Another physician, 
 
            claimant's family doctor, after ruling out rotator cuff 
 
            tear, diagnosed his condition as tendonitis.  In his answers 
 
            to interrogatories, claimant stated that he had an auto 
 
            accident in January 1986 or 87 but that he was not injured 
 
            as a result of this accident.  There is no other evidence to 
 
            the contrary.
 
            
 
                 According to the records of John Bailey, M.D., submit
 
            ted into the evidence, claimant first began having problems 
 
            with his wrists and shoulders in 1985.  However, also 
 
            appearing in these records is a report from Dr. Bailey indi
 
            cating that claimant had surgery to his left shoulder in 
 
            August 1987 and to his right shoulder in February 1988.  
 
            These records are clearly wrong given the actual dates of 
 
            surgery in other records admitted into the evidence.  
 
            Consequently, little can be deciphered from Dr. Bailey's 
 
            records.
 
            
 
                 Pursuant to the recommendations of a treating orthope
 
            dic surgeon, William J. Pontarelli, M.D., claimant left work 
 
            on August 31, 1988.  At that time Dr. Pontarelli began 
 
            extensive treatment of claimant upon a diagnosis of bilat
 
            eral carpal tunnel syndrome and bilateral osteolysis of the 
 
            shoulders.  This treatment eventually lead to bilateral 
 
            wrist and shoulder surgeries to correct these problems.  
 
            Approximately one inch of clavicle bone was removed from 
 
            both of claimant's shoulders in these surgeries.  The first 
 
            surgery occurred in September 1988 and also involved a 
 
            carpal tunnel syndrome release of the left wrist and a 
 
            release of the ulnar Guyons canal.  A similar surgery was 
 
            performed on claimant's right shoulder and wrist in November 
 
            1988.  Dr. Pontarelli released claimant to return to work 
 
            following recovery from these surgeries but permanently 
 
            restricted claimant from activity involving overhead lift
 
            ing, repetitive lifting, lifting over 40 pounds or working 
 
            more than 40 hours per week.
 
            
 
                 When claimant returned to work on June 5, 1989, he was 
 
            assigned to "picking foam", a job within his restrictions.  
 
            Claimant continued to experience symptoms of pain and numb
 
            ness but he admitted at hearing that he was able to perform 
 
            this work and remain employed.  However, after a few weeks, 
 
            claimant was assigned to more demanding repetitive work and 
 
            he began again to experience severe pain and numbness in his 
 
            wrists, arms and shoulders.  Claimant left work again upon 
 
            Dr. Pontarelli's advice on August 15, 1989, for further 
 
            treatment.  Claimant has not returned to UT since that time.  
 
            Dr. Pontarelli continued to treat claimant over the next 
 
            several months.  Claimant worked briefly at a telemarketing 
 
            job upon a work release issued by Dr. Pontarelli in August 
 
            1990.  Claimant was compelled to leave this job after only a 
 
            few days due to a recurrence of pain while dialing the 
 
            phone.  At that time, claimant returned to Dr. Pontarelli 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            again for further treatment.  Claimant subsequently became 
 
            employed in a job which required him to mow grass and to 
 
            sell tickets at a ticket counter.  Claimant was apparently 
 
            physically able to perform this work as he did not end this 
 
            work until he was laid off.
 
            
 
                 It is found that claimant reached maximum healing from 
 
            his repetitive work injury on December 27, 1989.  This find
 
            ing is based upon the office note of Dr. Pontarelli dated 
 
            December 27, 1990 (Exhibit A, page 12).  Dr. Pontarelli 
 
            reported that claimant was stable in this office note and 
 
            noted that claimant should seek vocational rehabilitation.  
 
            However, the date of this office note, given the other pages 
 
            in the exhibit, is clearly erroneous.  The proper date for 
 
            this office note was a year earlier on December 27, 1989.
 
            
 
                 In his letter report of October 2, 1991, Dr. Pontarelli 
 
            opines that claimant only temporarily aggravated his prior 
 
            work injury when he returned to work in June 1989.  Dr. 
 
            Pontarelli does not believe that this injury caused any per
 
            manent damage to claimant's condition.  As a result of the 
 
            work injury of May 16, 1988, claimant has a significant per
 
            manent impairment to the body as a whole.  This finding is 
 
            based upon the views of the primary treating physician, Dr. 
 
            Pontarelli, who opines that claimant suffers from a 17 per
 
            cent total impairment to the wrist and shoulder on the right 
 
            and 15 percent permanent partial impairment on the left as a 
 
            result of the original injury causing the surgery.  Whether 
 
            or not this rating is to the body as a whole is unknown.  
 
            Clearly the rating is significant.  Also, claimant continues 
 
            to have the same work restrictions as imposed by Dr. 
 
            Pontarelli in June 1989.  However, Dr. Pontarelli noted in 
 
            his reports that he never advised claimant that he is perma
 
            nently unable to work at all, noting that he frequently 
 
            advised claimant to seek vocational rehabilitation and 
 
            retraining.
 
            
 
                 With reference to claimant's loss of earning capacity, 
 
            on his own, claimant has followed the advice of Dr. 
 
            Pontarelli and sought vocational rehabilitation counseling.  
 
            As a result, he has taken a math refresher course to begin a 
 
            program of retraining.  According to exhibit 4 claimant has 
 
            made a good faith effort to seek alternative employment in 
 
            the geographical area of his residence.  He unsuccessfully 
 
            attempted telemarketing work.  However, he was able to per
 
            form a job involving mowing grass, parking cars and selling 
 
            tickets at concerts.  This job paid $4.00 an hour before 
 
            claimant was laid off.  Exhibit 1 indicates that claimant 
 
            has suffered a 90 percent loss of earnings as a result of 
 
            the work injury at the present time.  Claimant's past 
 
            employment primarily consists of unskilled manual labor, the 
 
            work for which he is significantly restricted from perform
 
            ing by Dr. Pontarelli.
 
            
 
                 However, claimant has a high school education.  He 
 
            apparently was able to successfully complete the educational 
 
            refresher course.  Claimant is relatively young at age 31.  
 
            The effective age upon claimant's disability is signifi
 
            cantly less than would be the case for an older individual.  
 
            Finally, as stated by Dr. Pontarelli, claimant is able to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            work.  His disability is not such that only odd jobs are 
 
            available to him.  Claimant is clearly able to perform non
 
            repetitive lighter duty labor work and retail sales work, 
 
            albeit at much lower wages and fringe benefits than he 
 
            received at UT.
 
            
 
                 Shortly before hearing, claimant was offered a return 
 
            to work by UT within his work restrictions.  This deputy 
 
            commissioner is highly skeptical of offers of reemployment 
 
            made shortly before a workers' compensation hearing.  In any 
 
            event, at the time of the hearing, claimant was not employed 
 
            by UT and the finding of loss of earning capacity in this 
 
            decision is made without regard to this offer of reemploy
 
            ment.  Obviously, if there is a successful change in employ
 
            ment status after the hearing as a result of this offer or 
 
            there is a refusal of suitable reemployment by claimant 
 
            after the hearing, such would be a material change in the 
 
            conditions upon which the finding below in this case.
 
            
 
                 Therefore, although claimant failed to show that he is 
 
            odd-lot and not able to compete successfully in the competi
 
            tive labor market, he has shown very significant disability.  
 
            It is found that the work injury of May 16, 1988, was a 
 
            cause of a 50 percent loss of earning capacity.  Based upon 
 
            Dr. Pontarelli's opinions, no part of this permanent dis
 
            ability is attributable to any prior injury or subsequent 
 
            injury after he returned to work in June 1989.
 
            
 
                                conclusions of law
 
            
 
                   I.  A fighting issue in this case is whether the 
 
            injury of May 16, 1988, extended beyond the arm and into the 
 
            shoulder or body as a whole.  Admittedly, there is a concep
 
            tual problem in determining whether a disability should be 
 
            measured functionally or industrially when a major body 
 
            joint such as the shoulder is involved.  A shoulder injury 
 
            can be a loss to the arm or a loss to the body as a whole 
 
            and the determination depends upon the extent of injury.  
 
            However, it is the anatomical situs of the injury causing 
 
            permanent impairment not the situs of the impairment which 
 
            determines whether or not to apply the schedules in Iowa 
 
            Code section 85.34(2)(a-t).  Lauhoff Grain v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986); Dailey v. Pooley Lumber Co., 233 
 
            Iowa 758, 10 N.W.2d 569 (1943).  Also see Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (1980).  Finally, it is 
 
            well established in Iowa that a shoulder injury is an injury 
 
            to the body as a whole and not to a scheduled arm injury.  
 
            Lauhoff, 395 N.W.2d 834 (Iowa 1986); Alm v. Morris Barick 
 
            Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus 
 
            v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 
 
            281 (Appeal Decision 1982); Godwin v. Hicklin G.M. Power, II 
 
            Iowa Industrial Commissioner Report 170 (Appeal Decision 
 
            1981).  Therefore, the injury at bar will be compensated 
 
            industrially as a whole body injury.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 50 percent loss of earning capacity as a result of 
 
            the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 250 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 50 percent of 500 weeks; the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 With reference to the offer of reemployment by UT 
 
            shortly before hearing, if claimant does subsequently return 
 
            to work or if claimant refuses a valid offer to return to 
 
            suitable work, this agency is available to review the award 
 
            rendered herein upon a proper petition for review-reopening 
 
            in this case.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant may be entitled to weekly bene
 
            fits for healing period under Iowa Code section 85.34 from 
 
            the date of injury until claimant returns to work or is med
 
            ically capable of returning to substantially similar work to 
 
            work he was performing at the time of the injury; or, until 
 
            it is indicated that significant improvement from the injury 
 
            is not anticipated, whichever occurs first.  It was found 
 
            that claimant reached maximum healing or was stabilized on 
 
            December 27, 1989.  The record is consistent with the stipu
 
            lation of the parties as to the times off work prior to his 
 
            reaching maximum healing.  Healing period benefits will be 
 
            awarded accordingly.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement only if claimant has paid those 
 
            expenses.  Otherwise, claimant is entitled to only an order 
 
            directing the responsible defendants to make such payments.  
 
            See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the parties stipulated as to the 
 
            causal connection of the medical expenses to the disputed 
 
            shoulder injury.  As such an injury was found in this case, 
 
            the requested medical benefits will be awarded in full.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at the 
 
            rate of two hundred forty-seven and 26/l00 dollars ($247.26) 
 
            per week from December 28, 1989.
 
            
 
                 2.  Defendant shall pay to claimant healing period ben
 
            efits from August 31, 1988 through June 4, 1989 and again 
 
            from August 16, 1989 through December 27, 1989, at the rate 
 
            of two hundred forty-seven and 26/l00 dollars ($247.26) per 
 
            week.
 
            
 
                 3.  Defendant shall pay the medical expenses listed in 
 
            the prehearing report and the medical mileage expenses for 
 
            seven hundred (700) miles at the rate of twenty-one cents 
 
            ($.21) per mile.  Claimant shall be reimbursed for any of 
 
            these expenses paid by him.  Otherwise, defendant is ordered 
 
            to pay the provider directly along with any lawful late pay
 
            ment penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid as set forth in the prehearing 
 
            report.
 
            
 
                 5.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendant shall pay the cost of this action set 
 
            forth in exhibit 5 as stipulated in the prehearing report 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for the filing fee paid in this matter.
 
            
 
                 7.  Defendant shall file an activity report on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. J. Richard Johnson
 
            Attorney at Law
 
            P O Box 607
 
            1715 First Ave SE
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803.1; 5-1803
 
                                               Filed December 10, 1991
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARION PAYTON,                :
 
                                          :       File No. 895808
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            SHELLER-GLOBE CORPORATION,    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1803.1
 
            
 
                 Applying agency precedent, it was held that the 
 
            anatomical situs of the injury causing disability, not the 
 
            situs of the disability caused by the injury governs whether 
 
            or not the injury is a body as a whole.  A shoulder injury 
 
            is an injury to the body as a whole even if the impairment 
 
            is only to the arm.
 
            
 
            
 
            5-1803
 
            
 
                 Causal connection and extent of disability.