BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            ROBERT GRAGG,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 898727
 
            CROWN READY MIX,              :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND,   :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 28, 1994, at Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a a result of an alleged injury occurring on May 
 
            4, 1988.  The record in the proceedings consist of the 
 
            testimony of the claimant, Leslie Turner and Marlo Gillotti; 
 
            claimant's exhibits 1 through 27; and, defendants exhibits 
 
            A, B and C.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether there is a causal connection between 
 
            claimant's alleged permanent disability and his alleged May 
 
            4, 1988 injury;
 
            
 
                 2.  The extent of claimant's permanent disability, if 
 
            any, and entitlement to disability benefits;
 
            
 
                 3.  When would benefits begin if any permanent 
 
            disability benefits are awarded.  The parties contend that 
 
            they would begin either August 19, 1990 or March 6, 1991;
 
            
 
                 4.  An 85.39 examination issue, the amount involved 
 
            being Dr. Kelley's $975 bill; and,
 
            
 
                 5.  An 85.27 medical expense issue, the issue basically 
 
            being causal connection.  The total amount involved is 
 
            $1,485.
 
            
 
                 The defendants raised the affirmative defense that 
 
            claimant filed a waiver of physical defect.  The undersigned 
 

 
            
 
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            had ruled in a conference call with the attorneys on April 
 
            25, 1994 concerning a motion to amend to add the waiver.  
 
            The undersigned's ruling in writing was issued April 27, 
 
            1994.  The undersigned again made the same ruling at the 
 
            beginning of the hearing when this issue surfaced again and 
 
            said motion to amend the answer to add said waiver was again 
 
            denied.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 59 years old and finished the eleventh 
 
            grade.  He indicated he didn't finish school because he 
 
            couldn't get along in school.  Claimant has had no further 
 
            formal education.
 
            
 
                 Claimant related his work history prior to beginning 
 
            work for defendant employer in 1984.  Claimant's prior work 
 
            history was basically in manual labor type of employment 
 
            involving foundry work, construction, and operating heavy 
 
            equipment.  In 1969, he worked as a truck driver and has 
 
            been a truck driver since that time.
 
            
 
                 Claimant testified as to his prior injuries, one of 
 
            which was in December of 1987, in a deer hunting accident in 
 
            which he hurt his neck.  Claimant indicated he ultimately in 
 
            December of 1987 had surgery and a fusion and was discharged 
 
            in December of 1987.
 
            
 
                 Claimant said he was released to work February 27, 
 
            1988, with no restrictions and returned to the same job he 
 
            had before his hunting accident.  This job involved making 
 
            deliveries and operating a concrete truck.  Claimant 
 
            emphasized he had no trouble performing his job upon his 
 
            return from his 1987 injury.
 
            
 
                 Claimant described how he was injured on May 3 or 4, 
 
            1988.  The undersigned will refer to May 4, 1988 as the 
 
            injury date as there is no dispute that an injury in fact 
 
            did occur.
 
            
 
                 Claimant described the medical treatment he received 
 
            pursuant to his May 4, 1988 injury.  This included therapy 
 
            and work hardening.
 
            
 
                 Claimant indicated that the defendant employer did not 
 
            have light duty work and so he asked the union to try to 
 
            enable him to go back to work.  Claimant then indicated he 
 
            got a job driving the belly dump truck which hauled 
 
            materials from the quarry to the site.  Claimant said that 
 
            he got so stiff doing this job he couldn't move and asked 
 
            for a different job involving short hauling.
 
            
 
                 Claimant tried to talk Thomas A. Carlstrom, M.D., to 
 
            let claimant try to go back to driving a Ready Mix truck.  
 
            The doctor indicated he couldn't handle it.  The doctor 
 
            finally agreed upon claimant's insistence that he wanted to 
 
            go back to work at that job.  Claimant talked with the 
 

 
            
 
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            president of the company, Marlo Gillotti, who indicated he 
 
            didn't think claimant was able to do the job.
 
            
 
                 Claimant testified that on February 5, 1990, he had a 
 
            torn rotator cuff surgery and a carpal tunnel surgery, which 
 
            is reflected in claimant's exhibit 18, page 1.
 
            
 
                 Claimant then referred to claimant's exhibit 21 dated 
 
            September 26, 1990, in which Dr. Carlstrom opined claimant 
 
            had a 10 percent impairment to his body as a whole and had a 
 
            restriction from 25 to 30 pounds and that he was releasing 
 
            claimant to go back to work but indicated he should avoid 
 
            truck driving.  Claimant contended there was no job with 
 
            that restriction.  Claimant indicated that he lost three 
 
            years of credit toward his retirement because of his 1988 
 
            injury.  He acknowledges that his wage has been kept the 
 
            same with the normal adjustments so that he does not have a 
 
            loss of hourly wage.  Claimant described how he hurts and 
 
            aches after a day's work but acknowledges that currently he 
 
            has no restrictions even though he acknowledges there are 
 
            jobs he previously had that he feels he could not do or 
 
            perform today.
 
            
 
                 Claimant then was extensively questioned concerning a 
 
            settlement approved by the industrial commissioner's office 
 
            involving himself and Inland Mills, employer, in which there 
 
            was reference to a July 13, 1982  alleged injury, a June 1, 
 
            1983 alleged injury and a July 6, 1983 alleged injury, all 
 
            of which were settled in that compromise settlement under 
 
            the provisions of 85.35 of the Iowa Code.  Claimant 
 
            acknowledged that in those proceedings the doctor concluded 
 
            that claimant could not longer do over-the-road driving but 
 
            notwithstanding that, he went to work for defendant employer 
 
            in June of 1984, driving a concrete truck.  Claimant 
 
            distinguished over-the-road driver versus regular truck 
 
            driver as one in which on the over-the-road, they are much 
 
            longer rides as one is sitting and driving for longer 
 
            periods of time.
 
            
 
                 Claimant acknowledged that prior to May 1988, he had a 
 
            carpal tunnel diagnosis.
 
            
 
                 Claimant agreed that he signed on December 5, 1987, a 
 
            waiver on account of a physical defect.  The undersigned 
 
            might note in his previous rulings that he has allowed this 
 
            testimony as to any issue of apportionment but not as to the 
 
            effect of the waiver itself.
 
            
 
                 Claimant indicated that a rehabilitation person tried 
 
            to find claimant a job and helped in getting a full release 
 
            to return to work so claimant could return to work for 
 
            defendant employer who then took him back.  Prior to this 
 
            full release, claimant had a weight restriction.  Claimant 
 
            testified that it has been two plus years since he got the 
 
            full release and he has been driving a concrete truck for 
 
            defendant employer all this time.  Claimant said he intends 
 
            to continue driving until his retirement.  He knows nothing 
 
            that will prevent him from leaving defendant employer and 
 
            driving the concrete truck.
 
            
 

 
            
 
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                 Claimant indicated he was hired by defendant employer 
 
            originally as a truck driver but had bid into a warehouse 
 
            job and obtained that job because of seniority and was doing 
 
            this particular job when he was injured on May 3 or 4, 1988.  
 
            Claimant further acknowledged that he did not miss work 
 
            until September 17, 1988 because of his May 4, 1988.
 
            
 
                 It appears to be undisputed that claimant would not 
 
            have been put back to work by defendant employer had those 
 
            restrictions not been removed as defendant employer had no 
 
            light duty jobs.
 
            
 
                 Claimant works a lot of overtime and emphasized he does 
 
            not refuse overtime if offered to him and will do it 
 
            whenever he can.  He further acknowledged that with his 
 
            seniority he has worked through the winter for the last 
 
            several years.  Claimant said he had no impairment rating 
 
            from his many prior injuries and that he had no pain or 
 
            problems from his 1987 injury or the fractured cervical 
 
            spine.  Claimant again emphasized he went to Dr. Carlstrom 
 
            in August 1990 so he could go back to his Ready Mix job. 
 
            (Claimant's Exhibit 1, page 19)
 
            
 
                 Claimant referred to claimant's exhibits 4 and 5, which 
 
            are the letters of S.W. Haag, M.D., and Mayo Clinic, who 
 
            indicates claimant was not to do over-the-road, long hauling 
 
            work or unloading.  Mayo Clinic indicated claimant may be 
 
            able to resume his long distance truck driving in the 
 
            future.
 
            
 
                 Leslie Turner, secretary-treasurer of the Teamsters 
 
            Local 90, testified that he has negotiated contracts for 
 
            approximately 15 years for the union and their relationship 
 
            with the employer.  He said claimant sought his assistance 
 
            to try to get back to work because the company wouldn't take 
 
            him because of his restrictions.  Mr. Turner talked to Mr. 
 
            Gillotti.  He tried to get claimant a different job than he 
 
            was doing at the time of his injury but there is a question 
 
            of bidding and seniority.  Claimant was put on as belly dump 
 
            driver which involved shorter runs to the gravel pits.  
 
            Claimant was having problems with his job.  He said claimant 
 
            always wanted to be a Ready Mix driver but Mr. Gillotti was 
 
            worried about claimant's back.  He said eventually in the 
 
            spring of 1991, when the restrictions were lifted, claimant 
 
            got his job back as a cement driver.  He said that claimant 
 
            could not be an over-the-road driver who he classified as 
 
            one running 300,000 to 400,000 miles a year.  He said that 
 
            if claimant lost his job he would have trouble getting a job 
 
            as in a lot of these types of jobs there is a probationary 
 
            period and they may not hire claimant.  He said in 
 
            claimant's current job there are occasions in which he must 
 
            lift things.
 
            
 
                 Marlo Gillotti, president of the defendant employer, 
 
            testified that he is familiar with claimant.  He said 
 
            claimant returned to work on February 20, 1988 after having 
 
            signed a waiver on account of a physical defect.  He said 
 
            his concern for the claimant was that when he was visiting 
 
            claimant in the hospital it was indicated claimant would not 
 
            be able to return to work for two years and was surprised 
 

 
            
 
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            when claimant came back in two months to try to work.  He 
 
            said he didn't want to be responsible for claimant 
 
            aggravating his back and that he wanted claimant to return 
 
            to work without restrictions.
 
            
 
                 He emphasized that he cannot go in and move people 
 
            around as the bidding process applies.  He said claimant's 
 
            work ethics is one of the best but like himself, claimant is 
 
            hot headed.  He said claimant works overtime whenever he can 
 
            get the hours and defendants can supply them to him.  He 
 
            said claimant has no problems getting the job done.
 
            
 
                 One of the major issues in this case is claimant's 
 
            prior injuries prior to his May 4, 1988 injury.  Claimant's 
 
            exhibit 1, pages 1 through 9, reflect various injuries 
 
            claimant had which affected his body as a whole including 
 
            his cervical area, shoulder area, right knee, arm, chest.  
 
            Claimant was released to return to work on November 23, 
 
            1982.  In July of 1983, the record shows claimant jammed his 
 
            head against the dashboard of the truck.
 
            
 
                 Page 10 of claimant's exhibit 1, on April 10, 1984, 
 
            claimant's cervical spine x-ray showed some degenerative 
 
            changes and the shoulder x-rays were normal but the doctor 
 
            felt claimant had bilateral carpal tunnel syndrome and 
 
            discussed possible decompression in the future if his 
 
            symptoms became more severe.
 
            
 
                 December of 1987 was the other accident at which time 
 
            the records shows a fracture of the antroinferior.  December 
 
            of 1987 that has been previously referred to was the deer 
 
            hunting incident which was a severe injury.  Claimant's 
 
            exhibit 1, page 11, shows Dr. Carlstrom performed a 
 
            posterior cervical fusion at the C4-5 level and in February 
 
            of 1988, there is no abnormal range of motion between 
 
            flexion and extension.  Page 12 of said exhibit shows 
 
            claimant's treatment then for his May 4, 1988 injury that is 
 
            in question herein.  A note by Dr. Carlstrom on March 22, 
 
            1989, on page 16 of said exhibit, is more fully explained by 
 
            exhibit 13 which is his letter dated March 21, 1989, in 
 
            which he indicated he didn't think claimant's cervical spine 
 
            injury of 1987 had anything to do with his current problems 
 
            as he had returned to work full time.  He also thought 
 
            claimant should have an impairment rating of about 3 to 4 
 
            percent to the body as a whole and all of this would be 
 
            related to his 1988 injury.  Page 17 of said exhibit shows a 
 
            February 5, 1990 note of the surgical release of the 
 
            transverse carpal ligament of the right wrist and partial 
 
            acrimonioplasty and release of the coracoacrimonial ligament 
 
            right shoulder.
 
            
 
                 Page 19 of said exhibit is an August 9, 1990 note of 
 
            Dr. Carlstrom which is more fully explained by claimant's 
 
            exhibit 20 in which he indicates claimant wanted to try the 
 
            Ready Mix truck driving job and he gave him the okay but 
 
            wasn't sure claimant could handle it.  The doctor, in his 
 
            letter, indicated claimant should be considered to be at 
 
            maximum benefits and healing.  He thought claimant would 
 
            tolerate his return to work very poorly but thought he 
 
            should give it a try.  He didn't place any restrictions on 
 

 
            
 
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            claimant because the doctor felt the company would not take 
 
            claimant back with any restrictions.  Claimant did not last 
 
            very long in that job, as reflected in Dr. Carlstrom's 
 
            September 11, 1990 note.
 
            
 
                 Claimant's exhibit 21, a September 26, 1990 letter of 
 
            Dr. Carlstrom, again indicates claimant probably has reached 
 
            maximum benefits of healing from this injury but he will 
 
            still have problems and never be pain free.  He indicated 
 
            claimant returning to work should not require heavy lifting 
 
            and he would recommend a 25 to 30 pound maximum with his 
 
            upper extremities and avoid sitting or standing for any 
 
            length of time, probably for an hour at maximum and he needs 
 
            to avoid truck driving.  He related this to claimant's May 
 
            1988 injury and opined claimant had a 10 percent impairment 
 
            to his body as a whole.
 
            
 
                 Defendants' exhibit 4, which has been referred to 
 
            earlier, is a March 9, 1994 letter in which Dr. Haag 
 
            indicated claimant could resume any work except 
 
            over-the-road long hauling work or unloading.
 
            
 
                 In April 1984, a Dr. Rand of Mayo Clinic, indicated 
 
            claimant's x-rays of his cervical spine showed narrowing of 
 
            the C5 interspace with some degenerative changes but no 
 
            other significant abnormalities and that x-rays of the 
 
            shoulder were normal.  He also felt claimant had a bilateral 
 
            carpal tunnel syndrome and discussed possible surgical 
 
            decompression in the future if claimant's symptoms became 
 
            more severe. (Cl. Ex. 5)
 
            
 
                 Claimant's exhibit 6 is the surgery report of Dr. 
 
            Carlstrom in which a cervical fusion of C4-5 was done on 
 
            December 9, 1987.  Claimant's exhibit 8 reflects an office 
 
            note of February 25, 1987 in which claimant was given 
 
            authorization to return to work on February 26, 1988.  There 
 
            is a note indicating he did return to work on February 27, 
 
            1988.  Exhibit 9 refers to the fact that on February 26, 
 
            1988, his return to work was with no restrictions.  The 
 
            undersigned might note that another date of February 25, 
 
            1987 is on set exhibit but obviously that is a clerical 
 
            error, as well as the fact that the doctor wrote the date of 
 
            the last examination as February 25, 1987, but contradicts 
 
            claimant's exhibit 8, which shows the chronological order of 
 
            claimant's visits to the doctor and the 1988 date is in fact 
 
            correct.
 
            
 
                 Claimant's exhibit 13 is a March 21, 1989 letter which 
 
            was written by Dr. Carlstrom.  He opined claimant had a 3 to 
 
            4 percent body as a whole impairment and related that to his 
 
            May 4, 1988 injury.  The doctor emphasized he didn't think 
 
            claimant's cervical spine injury in 1987 had anything to do 
 
            with his current problems.  He supported this conclusion by 
 
            the fact that claimant had gone back to work and was working 
 
            full time after the 1987 injury and was experiencing this 
 
            pain after his May 1988 injury.  As of March 1989, claimant 
 
            had not worked since September of 1988.  As shown earlier 
 
            herein, in 1990 the doctor later opined a 10 percent 
 
            permanent impairment to claimant's body as a whole.
 
            
 

 
            
 
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                 The undersigned might note that the parties are 
 
            disputing an alleged healing period.  Defendants contend 
 
            that claimant reached maximum improvement on March 16, 1989, 
 
            and began paying permanent partial disability benefits on 
 
            March 17, 1989.
 
            
 
                 Claimant's exhibit 18 reflects that claimant obviously 
 
            went back to work but he was having trouble driving a truck 
 
            with long turnaround times which appears to have been 
 
            estimated at two hours and the doctor suggested that it 
 
            would help if he could make shorter runs by driving the 
 
            concrete truck which Dr. Fellows indicated was claimant's 
 
            normal job before his accident.
 
            
 
                 In September of 1989, Dr. Carlstrom then indicated 
 
            claimant could perform the duties outlined in his job 
 
            description of an aggregate tractor-trailer and Ready Mix 
 
            truck. (Cl. Ex. 16)
 
            
 
                 Claimant's exhibit 18, which has previously been 
 
            referred to, is a February 5, 1990 report referring to the 
 
            claimant's surgery involving carpal tunnel and 
 
            acrimomioplasty release of the coracoacrimonial ligament of 
 
            the right shoulder.
 
            
 
                 Claimant' exhibit 20 is an August 9, 1990 letter of Dr. 
 
            Carlstrom in which he said claimant reached maximum benefits 
 
            of healing and gave claimant a release to return to the 
 
            Ready Mix driving job per his request.  The doctor thought 
 
            he would tolerate it poorly but thought he should give it a 
 
            try.  No restrictions were placed on claimant because the 
 
            doctor suspected that he would not be taken back with 
 
            restrictions.  The undersigned might note that the doctor's 
 
            comment concerning that is correct and it is further obvious 
 
            from the testimony that defendant employer would not have 
 
            taken claimant back if there was any restrictions 
 
            whatsoever.  It is obvious this reflects claimant's 
 
            motivation as he wanted to get back to work.
 
            
 
                 A September 26, 1990 letter of Dr. Carlstrom indicates 
 
            that claimant probably reached maximum benefits from his 
 
            injury in May 1988.  The undersigned believes that the 
 
            August 9, 1990 letter actually ended the healing period 
 
            regarding this carpal tunnel and shoulder surgery (Cl. Ex. 
 
            20)  It appears to the undersigned that even though claimant 
 
            was continuing to have problems, this was the effect of his 
 
            permanent impairment and injury and claimant in fact had 
 
            reached maximum healing benefits.  The doctor in September 
 
            then put a 25 to 30 pound restriction on claimant and opined 
 
            claimant had a 10 percent permanent impairment to the body 
 
            as a whole.
 
            
 
                 The medical is confusing to the extent that it had Dr. 
 
            Carlstrom opining claimant reached maximum healing even 
 
            though it is obvious there seems to be some pressure on him 
 
            to have claimant get back to work and then we have the 
 
            August 20, 1990 letter of Joe F. Fellows, M.D., in which he 
 
            indicated claimant had not reached maximum medical 
 
            improvement after his rotator cuff exploration and 
 
            decompression of the shoulder as well as decompression of 
 

 
            
 
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            claimant's hand.  It appears he hadn't seen claimant for 
 
            some time and was writing this letter to the defendants' 
 
            rehabilitation company.
 
            
 
                 Claimant's exhibit 23 is a March 7, 1991 letter from 
 
            David J. Boarini, M.D., in which the doctor indicates that 
 
            claimant has been released to work with no specific 
 
            restrictions.  It is obvious it is this letter that claimant 
 
            is relying upon to support his contention that claimant's 
 
            healing period is August 18, 1990 through March 5, 1991.
 
            
 
                 John H. Kelley, M.D., issued a report on April 16, 
 
            1992, in which he opined claimant had a body as a whole 
 
            cervical injury of 4 percent and right upper extremity 8 
 
            percent.  On the combination chart it comes to a 15 percent 
 
            permanent impairment to claimant's body as a whole. (Cl. 
 
            Exs. 25, 26)  Dr. Kelley then issued a June 9, 1992 report 
 
            pursuant to claimant's attorney's request in which he 
 
            indicated that the May 4, 1988 injury was substantially an 
 
            aggravation to the cervical spine resulting in an additional 
 
            4 percent permanent partial impairment to claimant's body as 
 
            a whole.  He indicated this was in agreement with Dr. 
 
            Carlstrom's opinion.  The doctor went on further to indicate 
 
            that in his opinion the May 4 injury was not the substantial 
 
            cause of claimant's bilateral carpal tunnel syndrome as he 
 
            felt this was the result of a repetitive motion in his 
 
            occupation.
 
            
 
                 It would seem to the undersigned that the doctor is 
 
            indicating claimant had a separate carpal tunnel syndrome 
 
            injury that was work connected but had nothing to do with 
 
            May 1988.  It is undisputed that claimant had surgery for 
 
            his carpal tunnel which it appears when taking the record as 
 
            a whole that this involves the hands and shoulders as far as 
 
            an operative procedure done by Dr. Fellows on February 5, 
 
            1990.  Dr. Fellows does not address this particular point 
 
            but it appears this surgery was done to correct a work 
 
            injury and whether claimant should bring a separate action 
 
            or combine this as a whole in light of the fact that the 
 
            shoulder and the upper extremity problems came together in 
 
            some finality at the time they were trying to solve 
 
            claimant's neck injuries resulting from his May 4, 1988 
 
            injury may be a technical distinction.  The undersigned 
 
            believes there is substantial evidence to show that there 
 
            was materially and substantial aggravation to claimant's 
 
            shoulders and hand (upper extremities) resulting from 
 
            claimant's May 4, 1988 injury and considers everything as a 
 
            whole and not separate injuries.
 
            
 
                 Defendants' first 21 pages of exhibits entitled 
 
            "Summary of Medical Records For Robert Gragg" are identical 
 
            to claimant's exhibit 1, pages 1 through 21.  The 
 
            undersigned is not sure why there is that duplication.
 
            
 
                 Defendants' exhibits 1 and 2 involve the waiver on 
 
            account of physical defect that has been previously 
 
            addressed and ruled upon by the undersigned.  Originally, an 
 
            objection to that was sustained, but after testimony was 
 
            submitted that exhibit was then allowed in the evidence for 
 
            purpose of any reapportionment of disability and not as the 
 

 
            
 
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            effect of a waiver of physical defect.
 
            
 
                 Pages 6 and 7 of defendants' exhibit A are the job 
 
            descriptions that describe the job claimant is now doing.  
 
            Actually, claimant is doing the Ready Mix truck job but the 
 
            undersigned understands that the other job may be involved 
 
            at times, also.  They are somewhat similar in some respect 
 
            but it is obvious the Ready Mix truck job is much more 
 
            intense and physical.
 
            
 
                 Pages 15 through 21 of defendants' exhibit B are the 
 
            records relating to the evaluation of claimant by Peter 
 
            Wirtz, M.D., in which there was one visit and then one 
 
            follow-up visit.  One might note that the doctor indicates 
 
            claimant's Ready Mix truck driver job in which he has to 
 
            lift approximately 50 pounds may be in the extremes of 
 
            claimant's ability with the right shoulder.  The undersigned 
 
            might note that in the job description, which the doctor was 
 
            suppose to have but it appears he didn't have, there was 
 
            lifting up to 100 pounds.  
 
            
 
                 It would seem that claimant's desire to work and 
 
            motivation enables him to perform this job even though there 
 
            may be a question as to whether he should be doing it.  It 
 
            it also apparent from the evidence and testimony in this 
 
            case that this employer is doing its best to work with this 
 
            claimant because of claimant's work ethics and this 
 
            employer's knowledge of the work this claimant does and his 
 
            willingness to put forth additional effort and work all the 
 
            overtime the employer may have.  This, of course, helps the 
 
            employer from hiring additional people who may not be needed 
 
            all the time so it is a benefit to the employer, also.
 
            
 
                 Defendants' exhibit B, page 28, is Dr. Boarini's March 
 
            7, 1991 letter, which is identical to claimant's exhibit 23.  
 
            As indicated before, this is apparently the letter claimant 
 
            is relying upon to indicate claimant reached maximum 
 
            healing.
 
            
 
                 Defendants' exhibit B, page 68, is a letter from Dr. 
 
            Haag, Dated February 17, 1984, in which he wrote that he 
 
            considered claimant to be totally (and most likely 
 
            permanently) disabled from his work as a truck driver.  
 
            Although the undersigned is not sure of the nature of the 
 
            truck driving he is talking about in that there is 
 
            over-the-road, which is more intense than the other, it is 
 
            interesting to note that this claimant has been very 
 
            resilient and very motivated and has come back obviously far 
 
            better than the medical profession thought.  This is also 
 
            evident from the December 1987 injury in which he bounced 
 
            back within two months when he indicated it might be two 
 
            years.  The undersigned attributes this to claimant's work 
 
            ethics and motivation as helping him to get back on his feel 
 
            far earlier than anticipated.  
 
            
 
                 Claimant's exhibit C is an approval of settlement on 
 
            certain injuries claimant had and involves a workers' 
 
            compensation settlement.
 
            
 
                 It appears the big dispute in this case is claimant's 
 

 
            
 
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            problems with his upper extremities which resulted in carpal 
 
            tunnel release and shoulder surgery and also whether 
 
            claimant's neck problems are solely or mostly related to 
 
            claimant's prior injuries or accidents prior to May 4, 1988.  
 
            The undersigned might note that there is testimony and 
 
            evidence as to whether the injury was May 3 or 4 but the 
 
            undersigned will pick May 4 since that was stated in the 
 
            petition and the first report of injury.  Of course, in this 
 
            decision it makes no difference.
 
            
 
                 The undersigned finds that the greater weight of 
 
            evidence shows that claimant did incur additional and 
 
            permanent impairment to his cervical area.  Claimant had a 
 
            severe injury in December of 1987 and the evidence shows he 
 
            bounced back surprisingly and was returning to work in two 
 
            months even though it appeared possibly it would be two 
 
            years before he would recover from that.  The undersigned 
 
            finds claimant is very motivated and wants to work and is 
 
            not desirous of sitting around collecting compensation 
 
            payments.  Claimant was back to work doing his job and it 
 
            appears no prior injury was not affecting him in doing his 
 
            work.  The undersigned finds that any preexisting injury to 
 
            the cervical area was substantially and materially 
 
            aggravated, lighted up and heightened by this May 4, 1988 
 
            injury.  The undersigned finds that any injury prior to 1987 
 
            likewise did not result in any of claimant's current 
 
            problems, disability or impairment.
 
            
 
                 Defendants agree there is some healing period or 
 
            temporary total disability to the claimant herein but 
 
            contend at most  claimant's healing periods were September 
 
            18, 1988 through March 16, 1989, and October 28, 1989 
 
            through August 18, 1990.  Claimant contends that his healing 
 
            period is August 18, 1990 through March 5, 1991.  The 
 
            evidence is clear that claimant worked after his injury on 
 
            May 4, 1988 up to and not including September 17, 1988.  The 
 
            undersigned therefore finds that the two healing periods 
 
            referred to above set forth by defendants are in fact 
 
            healing periods which claimant is entitled to healing period 
 
            benefits.
 
            
 
                 As to the period of August 18, 1990 through March 5, 
 
            1991, this has to do with the disputed injury concerning 
 
            claimant's carpal tunnel and shoulder surgery.
 
            
 
                 There is no question claimant was having prior problems 
 
            with his shoulders and carpal tunnel and had been diagnosed 
 
            as having carpal tunnel syndrome a considerable time prior 
 
            to his May 4, 1988 injury.  The fact is it was not 
 
            preventing him from working and he was working with it.  
 
            When claimant had his May 1988 injury, it would appear that 
 
            claimant's carpal tunnel problems were as bad or possibly 
 
            worse and that he ended up having the carpal tunnel surgery 
 
            when the doctor did an exploratory shoulder surgery to see 
 
            if there was a rotator cuff tear.  The evidence seemed to 
 
            indicate that this was a cumulative type repetitive injury 
 
            and not from any specific incident.  It also seems 
 
            undisputed that the carpal tunnel was the result of 
 
            claimant's repetitive type of work.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 The undersigned has two alternatives.  One alternative 
 
            would be to find that there was a cumulative injury and pick 
 
            a date when claimant had surgery which was in February of 
 
            1990 as a new injury date and order a new file number and 
 
            dispose of that in this particular case.  The other 
 
            alternative would be picking the May 4, 1988 date.  For the 
 
            purpose of this decision and the ultimate result of any 
 
            benefits being awarded, it would make no difference which 
 
            date the undersigned picks.  The undersigned is picking the 
 
            May 4, 1988 date as it seems like this began the ultimate 
 
            events that led to claimant's carpal tunnel surgery and 
 
            shoulder surgery.  The undersigned finds that on the May 
 
            1988 date, the claimant also incurred a cumulative carpal 
 
            tunnel injury and shoulder injuries and impairments and that 
 
            the May 1988 injury materially and substantially aggravated, 
 
            lighted up and heightened claimant's preexisting shoulder 
 
            and carpal tunnel problems.  The undersigned further finds 
 
            that as a result of claimant's surgery to his upper 
 
            extremities and shoulder, claimant incurred a healing period 
 
            beginning February 5, 1990, when he had his surgery, through 
 
            August 9, 1990. (Cl. Ex. 20)  The undersigned realizes there 
 
            could be several different healing periods in connection 
 
            with this particular period that the undersigned could pick.  
 
            He also realizes that Dr. Carlstrom later on was not certain 
 
            that he had picked the correct date.  There are other 
 
            doctors who related to other dates that would give the 
 
            claimant additional healing period.  The undersigned finds 
 
            this is the most logical date under all the circumstances 
 
            and the facts of this case and that Dr. Carlstrom had a 
 
            better handle in this regard due to more contacts with the 
 
            claimant.  Although claimant continued to have problems it 
 
            appears that because of claimant's condition and impairment 
 
            that he would continue to have these problems but that did 
 
            not mean he was necessarily still healing.  The undersigned 
 
            finds that this healing period was causally connected to 
 
            claimant's May 4, 1988 injury.
 
            
 
                 As to the extent of claimant's current disability, the 
 
            undersigned finds that claimant is working and has not lost 
 
            any reduction in wages as to the hourly wage he is now 
 
            receiving versus what he was receiving at the time of his 
 
            injury.  Claimant is working full time and is taking 
 
            advantage of all overtime and so far is able to perform the 
 
            work.  Claimant has no current loss of income and the 
 
            employer is accommodating claimant.  In fact, it is obvious 
 
            from the employer's testimony that this claimant is a very 
 
            good worker, highly motivated and will do all the overtime 
 
            he can.  It is also apparent from the evidence that claimant 
 
            is working in pain and most likely when he is doing the 
 
            concrete driving job, which is the job he hopes to do the 
 
            rest of his career, he is lifting beyond his recommended 
 
            capacity.
 
            
 
                 The undersigned understands that when taking the 
 
            evidence as a whole, the claimant may not actually be under 
 
            any restrictions and yet it is also obvious that the doctors 
 
            realize he should be but that he wouldn't have a job because 
 
            of the employer's position if they set any restrictions.  
 
            The employer made that clear in his testimony and the 
 
            records also reflect that.  In fact, claimant had requested 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            restrictions be removed so he could go back to work.  
 
            Although the doctors felt he may do poorly in his work or 
 
            have difficulty, they felt it was worth a try.  It appears 
 
            claimant has surpassed their expectations but it is obvious 
 
            claimant is under risk doing the work he is currently doing 
 
            with the medical conditions that exist.  Claimant should not 
 
            be faulted for this.  It is also obvious to the undersigned 
 
            that another employer would think twice before he would hire 
 
            this claimant to do the work claimant is doing.  One can 
 
            easily conclude that if claimant went out to search for a 
 
            job that involved the driving, lifting, and the things that 
 
            are currently connected to the job, that once his medical 
 
            condition would be found out or determined, claimant would 
 
            not be hired.  The employer should be congratulated for 
 
            accommodating claimant but, likewise, that is substantially 
 
            reducing the defendants' liability and reducing the extent 
 
            of claimant's industrial disability .
 
            
 
                 Claimant is limited to the type of truck driving he 
 
            does.  It appears that in order to get along he must be in 
 
            the type of driving in which the hauling is short, the 
 
            driving time is short, the miles driven per day are minimum, 
 
            the time one sits and stands should be limited and likewise 
 
            what claimant lifts should be limited.
 
            
 
                 Claimant, from the record and evidence, will be 
 
            foreclosed from over-the-road driving, said over-the-road 
 
            driving being considered driving 300,000 to 400,000 miles a 
 
            year and driving for long periods of time, requiring lengthy 
 
            sitting.  The undersigned finds that claimant's inability to 
 
            do this type of over-the-road is not a result of claimant's 
 
            May 4, 1988 injury, but is the result of claimant's prior 
 
            injuries.  The undersigned therefore is not considering any 
 
            loss of earning capacity because claimant is unable to do 
 
            over-the-road driving as described above.
 
            
 
                 The undersigned does find that claimant is restricted 
 
            to other types of driving that can be more strenuous than 
 
            the driving he is doing now plus the fact the driving 
 
            claimant is doing now would not be tolerated by another 
 
            employer having knowledge of claimant's medical situation.  
 
            Claimant has a loss of earning capacity in that he has lost 
 
            a part of his ability to perform work he was able to do 
 
            prior to his May 4, 1988 injury.  Likewise, he is currently 
 
            at the mercy of his present employer but in today's age of 
 
            layoffs, companies going out of business, companies being 
 
            purchased by others, claimant cannot rely on 
 
            review-reopening for an indefinite period of time in the 
 
            future because of the law.  Claimant is now 59, and that age 
 
            alone limits claimant's future in the work place.
 
            
 
                 Taking into consideration claimant's prior work and 
 
            medical history; his present condition; his preexisting 
 
            injuries; his work experience after his injury; his 
 
            rehabilitation; his age; education; wages prior to and after 
 
            his injury; the location and severity of his injury; the 
 
            extent of his healing periods; his motivation; functional 
 
            impairment; and, employer accommodating claimant, the 
 
            undersigned finds that claimant has a 25 percent industrial 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            disability.
 
            
 
                 In light of the above ruling, the undersigned finds 
 
            that as to the 85.39 issue, defendants shall pay claimant's 
 
            medical evaluation by Dr. Kelley in the amount of $975.  It 
 
            appears that Dr. Kelley did a thorough evaluation and spent 
 
            considerable time.
 
            
 
                 As to the 85.27 medical benefits issue, in light of the 
 
            above ruling and finding that claimant's carpal tunnel and 
 
            surgery is causally connected to claimant's injury, 
 
            defendants shall pay the Iowa Methodist Hospital bill and 
 
            Dr. Fellows' bill which the undersigned understands amounts 
 
            to $1,485.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 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 the employee is fitted.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            N.W.2d 299 (1961).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 
            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 Iowa Code section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) the worker has 
 
            returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement of the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
            be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 
 
            405 (Iowa 1986).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury to his cervical area, 
 
            shoulders, upper extremities resulting in carpal tunnel 
 
            surgery and shoulder surgery, all of which was caused by 
 
            claimant's May 4, 1988 work injury.
 
            
 
                 Claimant incurred a permanent impairment and a 25 
 
            percent industrial disability as a result of his May 4, 1988 
 
            work injury.
 
            
 
                 Claimant had preexisting injuries that were 
 
            substantially and materially aggravated, lighted up and 
 
            heightened by his May 4, 1988 work injury.
 
            
 
                 Claimant incurred healing periods of September 18, 1988 
 
            through March 16, 1989, October 28, 1989 through August 18, 
 
            1990, and February 5, 1990 through August 9, 1990, that are 
 
            causally connected to his May 4, 1988 work injury.
 
            
 
                 Defendants are responsible for payment of Dr. Kelley's 
 
            $975 medical bill that was incurred as  a result of an 85.39 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            medical examination and which exam was the result of 
 
            claimant's May 4, 1988 injury.
 
            
 
                 Defendants are responsible for the payment of the 
 
            $1,485 Iowa Methodist Hospital and Dr. Fellows' bill, which 
 
            bills were incurred as a result of the carpal tunnel and 
 
            shoulder surgeries which was the result of claimant's May 4, 
 
            1988 work injury.
 
            
 
                 Claimant is a highly motivated individual.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant healing period 
 
            benefits at the stipulated rate of two hundred eighy-one and 
 
            72/100 dollars ($281.72) for the period of September 18, 
 
            1988 through March 16, 1989 (25.714 weeks); October 28, 1989 
 
            through August 18, 1990 (42.143 weeks); and, February 5, 
 
            1990 through August 9, 1990 (26.571 weeks), the total 
 
            healing period being ninety-four point four two eight 
 
            (94.428) weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of two hundred eighty-one and 72/100 
 
            dollars ($281.72).  Said benefits shall initially begin 
 
            after claimant's first healing period and then be 
 
            interrupted during the second healing period and then 
 
            continued again until the third healing period and after 
 
            third said interruption period, any additional permanent 
 
            partial disability benefits shall then begin August 10, 
 
            1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that defendants previously paid one hundred eighteen (118) 
 
            weeks of benefits.
 
            
 
                 That defendants shall pay to the doctor or reimburse 
 
            claimant, if he has already paid, the nine hundred seventy 
 
            dollar ($970) bill of Dr. Kelly.
 
            
 
                 That defendants shall pay or reimburse claimant, if 
 
            claimant has already paid, the Iowa Methodist Hospital bill 
 
            and the bill of Dr. Fellows which total one thousand four 
 
            hundred eighty-five dollars ($1,485).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1994.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            
 
            Mr Arthur C Hedberg
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines IA 50309
 
            
 
            Ms Iris J Post
 
            Attorney at Law
 
            222 Grand Ave
 
            P O Box 10434
 
            Des Moines IA 50306
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1802; 5-2206; 5-1803
 
                                             5-1108; 5-2503
 
                                             Filed May 18, 1994
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            ROBERT GRAGG,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 898727
 
            CROWN READY MIX,              :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND,   :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
            5-1802; 5-2206
 
            Found claimant's preexisting injuries were substantially and 
 
            materially aggravated, lighted up and heightened by his May 
 
            4, 1988 work injury.
 
            
 
            5-1803; 5-1108
 
            Claimant's work injury caused claimant to incur three 
 
            healing periods, a shoulder and carpal tunnel surgery and a 
 
            25% industrial disability.
 
            
 
            5-2503
 
            Found defendants were responsible for claimant's medical 
 
            bills of $2,460.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTINA L. SEPICH,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 898729
 
            CASEY'S GENERAL STORES, INC., :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by 
 
            Christina L. Sepich against Casey's General Stores, 
 
            employer, and United States Fidelity and Guaranty Company, 
 
            insurance carrier.  
 
            
 
                 Claimant sustained an compensable injury to her back on 
 
            August 20, 1988 and seeks compensation for an industrial 
 
            disability.
 
            
 
                 The case was heard at Des Moines, Iowa on June 19, 1991 
 
            and was considered fully submitted upon conclusion of the 
 
            hearing.  Leave was granted so that the parties could file 
 
            briefs.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of the claimant; joint exhibits 1-8; and, defendants' 
 
            exhibits A-D.
 
            
 
                                      issue
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, the sole issue to be determined in 
 
            this case is whether claimant's work-related injury caused 
 
            permanent industrial disability.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds the following facts:
 
            
 
                 On August 20, 1988, claimant sustained an injury which 
 
            arose out of and in the course of her employment when she 
 
            lifted a box of cheese which weighed between 45-50 pounds.  
 
            As claimant started to lift the cheese, she dropped to the 
 
            ground due to the pain in her lower back and left leg.
 
            
 
                 Claimant continued to work, as she thought the pain 
 
            would subside.  However, her symptoms became worse, and 
 
            claimant visited John Zittergruen, D.O., on September 1, 
 
            1988.  Her complaints consisted of severe low back pain with 
 
            radiation into the left leg.  Upon examination, she had 
 
            marked tenderness to palpation over the lower lumbar region 
 
            on the left side.  Straight leg raising tests were positive, 
 
            and the range of motion of the lumbar spine was restricted 
 
            secondary to pain and spasms.  X-rays were taken of the 
 
            lumbar spine, and showed some disc space narrowing, 
 
            consistent with a possible herniated disc.  Claimant was 
 
            instructed to rest at home, and was given Ibuprofen.  She 
 
            was referred to Marshall Flapan, M.D., for a September 13, 
 
            1988 appointment to rule out acute herniated intervertebral 
 
            disc.  (Joint Exhibit 1, page 62).
 
            
 
                 Prior to the appointment with Dr. Flapan, claimant 
 
            sought treatment from the emergency room at Iowa Lutheran 
 
            Hospital on September 10, 1988.  The examination was 
 
            consisted with a herniated disc.  (Jt. Ex. 1, p. 73).
 
            
 
                 Claimant was examined by Dr. Flapan on September 13, 
 
            1988, and his assessment was that of an acute herniated 
 
            intervertebral disc with left sciatica.  She remained on 
 
            Motrin and Flexril, and was instructed to rest, and was to 
 
            be re-evaluated in one week.  (Jt. Ex. 1, p. 59).
 
            
 
                 Claimant returned to Dr. Flapan on September 23, 1988, 
 
            and although she displayed some degree of improvement, 
 
            straight leg raising tests still produced positive results 
 
            and she showed signs of weakness of the left ankle and great 
 
            toe.  She was kept off of work for ten days, and returned to 
 
            Dr. Flapan on September 30, 1988.  Her symptoms were the 
 
            same as on prior visits, and an MRI scan was ordered.  (Jt. 
 
            Ex. 1, p. 58).
 
            
 
                 On October 13, 1988, the results of the MRI showed a 
 
            large herniated disc on the left side at the L4-5 level of 
 
            the lumbar spine.  Dr. Flapan recommended surgery, but 
 
            claimant underwent an epidural steroid injection instead.  
 
            Claimant felt some relief from the injection, but continued 
 
            to have good and bad days.  On November 21, 1988, Dr. Flapan 
 
            noted that a second epidural steroid injection afforded her 
 
            no relief, and he recommended an lumbar laminectomy and 
 
            diskectomy at the L4-5 interspace.  Claimant requested a 
 
            second opinion, and received the same from Thomas Carlstrom, 
 
            M.D., on December 8, 1988.  He reviewed the CAT scan 
 
            results, and concurred with the diagnosis of a large 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            herniated disc on the left in the lumbar region.  Upon 
 
            examination, Dr. Carlstrom noted a positive result on the 
 
            straight raising exam, and decided that the claimant was 
 
            experiencing radicular symptoms on the left secondary to a 
 
            herniated disk.  He recommended a return to work on a part 
 
            time basis (four hours per day) and activities that 
 
            restricted lifting of less than 15 pounds.  If claimant did 
 
            not respond favorably to this trial period, surgical 
 
            intervention would be warranted.  (Jt. Ex. 1, pp. 17, 34).
 
            
 
                 Claimant returned to Dr. Carlstrom on January 23, 1989, 
 
            with continued pain.  On examination, she displayed positive 
 
            results on the straight leg raising exam, and Dr. Carlstrom 
 
            diagnosed radicular symptoms.  He recommended a lumbar 
 
            laminectomy, although claimant requested physical therapy.  
 
            (Jt. Ex. 1, p. 15).
 
            
 
                 Claimant was placed on a work hardening program, which 
 
            she attended from January 1, 1989 through February 23, 1989.  
 
            Overall, claimant was a motivated participant in the 
 
            program, and showed improvement with respect to her physical 
 
            condition.  Upon her discharge from the program, she was 
 
            placed in a light work category based on the results of 
 
            lifting, carrying, pushing, pulling and reaching tests.  In 
 
            this category, claimant was to lift no more than 20 pounds 
 
            on an occasional basis, and up to ten pounds on a frequent 
 
            basis.  However, the work hardening consultant, Vicki 
 
            Torvik, felt claimant could lift 40 pounds on an occasional 
 
            basis.  She also noted that light duty work may require 
 
            continuous sitting, standing and consistent use of hand or 
 
            foot controls.  (Jt. Ex. 1, pp. 41-51).
 
            
 
                 It should be noted that the employer provided the 
 
            services of a vocational rehabilitation consultant, Becky 
 
            Parkins, to assist claimant in her employment pursuits.  She 
 
            worked with claimant from November of 1988 through February 
 
            of 1990, when Janine Lochman took control of the case and 
 
            provided services until March of 1991.  (Jt. Ex. 1, pp. 
 
            74-181).  Numerous attempts were made to accommodate 
 
            claimant and her physical condition at various stages during 
 
            the initial injury through the lumbar laminectomy and 
 
            subsequent rehabilitation from the same.
 
            
 
                 Claimant underwent the lumbar laminectomy on March 9, 
 
            1990 at the Iowa Methodist Medical Center.  Dr. Carlstrom 
 
            performed the surgery.  (Jt. Ex. 1, pp. 67-72).  
 
            
 
              
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            analysis and conclusions of law
 
            
 
                 The sole issue to be determined in the case is the 
 
            extent of claimant's industrial disability, if any, as a 
 
            result of her work-related injury sustained on August 20, 
 
            1988.
 
            
 
                 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.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability 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, 125 N.W.2d 251 (1963).  
 
            Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant, at the time of her injury, was 21 years old 
 
            and a high school graduate.  Her work experience is limited, 
 
            and consists of jobs as food preparer; dish washer; cashier; 
 
            typist; and, over-the-counter customer service.  Some of the 
 
            positions required claimant to lift some objects, but the 
 
            job she held with Casey's General Stores required claimant 
 
            to perform the most extensive lifting duties.
 
            
 
                 Claimant was hired by Casey's in May of 1985.  Her 
 
            first position was as a cashier, which required her to run 
 
            the cash register; wait on customers; sack groceries; 
 
            various cleaning details; fill bags with ice; and, restock 
 
            the shelves.  Over the next three years, claimant worked her 
 
            way up the Casey's ladder, with regular promotions and pay 
 
            raises.  At the time of her injury, claimant was the 
 
            assistant manager, and was paid $4.90 per hour.  This is 
 
            compared to her starting pay of $3.75 per hour.
 
            
 
                 As noted earlier, claimant is a high school graduate.  
 
            Since the accident, she has embarked on several college 
 
            courses, including typing and secretarial/management skills.
 
            
 
                 Claimant's potential for employment must be viewed in 
 
            light of both her work history and qualifications, and 
 
            physical status.  Claimant's work experience with Casey's 
 
            has included positions as a donut lady and pizza dough 
 
            maker, but when claimant attempted this work, her physical 
 
            symptoms would become worse.  In fact, it was after several 
 
            returns to work which exacerbated claimant's symptoms that 
 
            she underwent surgery.
 
            
 
                 Claimant appeared to be cooperative with the vocational 
 
            rehabilitation efforts made on her behalf, and although 
 
            there is some evidence in the record which indicates she 
 
            would miss work on occasions after she was released to 
 
            return to work, her illnesses are documented in the medical 
 
            records supplied.
 
            
 
                 Claimant has been restricted to light duty activity, 
 
            with a medical restriction of no lifting of more than 20 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            pounds, and she is to avoid sitting or standing greater than 
 
            one hour at the time.  She is to avoid twisting or forward 
 
            bending.  Dr. Carlstrom has given two functional impairment 
 
            ratings.  The first one, dated December 7, 1989 
 
            (pre-laminectomy) states the following:
 
            
 
                 I think that she should be considered to have 
 
                 suffered a permanent impairment of about 5% of the 
 
                 body as a whole.  Further employment should 
 
                 continue to stress avoidance of heavy lifting, 
 
                 prolonged sitting or standing, and forward 
 
                 bending, as I have suggested in the past.
 
            
 
            (Jt. Ex. 1, p. 8).
 
            
 
                 The second postoperative impairment rating dated 
 
            October 4, 1990 indicates the following:
 
            
 
                 I think future activity should be avoidance of 
 
                 lifting with a maximum of about 20 pounds and 
 
                 should avoid sitting or standing greater than an 
 
                 hour at a time.  She should also avoid twisting or 
 
                 forward bending.  I think she has sustained a 
 
                 permanent partial impairment of about 9% of the 
 
                 body as a whole, due to her postoperative status, 
 
                 because of this last episode, and that should be 
 
                 considered separate and distinct from previous 
 
                 impairments.
 
            
 
            (Jt. Ex. 1, p. 1).
 
            
 
                 Although Casey's has tried to re-employ her throughout 
 
            this ordeal, none of the positions offered to her 
 
            accommodate claimant's work restrictions and have resulted 
 
            in a successful return.  Claimant is currently working as 
 
            cook for a bar and grill in Des Moines, Iowa.  She earns 
 
            $4.00 per hour, and the position has accommodated her 
 
            restrictions.  Claimant's actual loss of earnings is 19 
 
            percent.  Actual earnings are indicative of her earning 
 
            capacity.
 
            
 
                 Intellectually and emotionally, claimant appeared 
 
            average.  She is young, and motivated, and the potential for 
 
            rehabilitation is good.  However, it may be difficult to 
 
            find a position which will accommodate her physical status, 
 
            although her interest in secretarial and support services 
 
            should allow her to pursue employment opportunities which 
 
            will not require the physical stresses incurred at her job 
 
            at Casey's.
 
            
 
                 After consideration of all the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained an industrial disability or loss of earning 
 
            capacity in the amount of 25 percent.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant permanent partial 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disability benefits for one hundred twenty-five (125) weeks 
 
            at the rate of one hundred forty-three and 47/100 dollars 
 
            ($143.47) commencing on October 9, 1990.
 
            
 
                 That defendants pay accrued amounts in a lump sum and 
 
            shall receive credit against the award for weekly benefits 
 
            previously paid.
 
            
 
                 That defendants pay interest on benefits awarded herein 
 
            as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants pay the costs of this proceeding, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Channing L Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Ste 500
 
            West Des Moines Iowa 50265
 
            
 
            Ms Iris J Post
 
            Attorney at Law
 
            2222 Grand Avenue
 
            PO Box 10434
 
            Des Moines Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed August 7, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHRISTINA L. SEPICH,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 898729
 
            CASEY'S GENERAL STORES, INC., :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Twenty-one year old, high school graduate underwent a lumbar 
 
            laminectomy, and was given a 14 percent functional 
 
            impairment rating.
 
            She possessed some secretarial skills, but had severe 
 
            restrictions of no repetitive lifting of more than 10 
 
            pounds, with no forward bending or twisting.
 
            Claimant awarded 25 percent industrial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            RON BAILEY,		      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 898754
 
            L & L BUILDERS,           :
 
		                      :        A P P E A L
 
                 Employer,	      :
 
 		                      :      D E C I S I O N
 
 		            and       :
 
                  		      :
 
            GENERAL CASUALTY,         :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed February 27, 1991, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joe Cosgrove
 
            Attorney at Law
 
            400 Frances Building
 
            Sioux City, Iowa 51101
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            Terrace Center, Ste. 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed October 17, 1991
 
                      BYRON K. ORTON
 
                      PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            RON BAILEY, 	      :
 
 		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 898754
 
            L & L BUILDERS,           :
 
		                      :        A P P E A L
 
                 Employer,  	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                	              :
 
            GENERAL CASUALTY,         :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            27, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RON BAILEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 898754
 
            L & L BUILDERS,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ron 
 
            Bailey, claimant, against L & L Builders, employer, and 
 
            General Casualty Companies, insurance carrier, identified as 
 
            defendants.  The case was brought on for hearing on November 
 
            29, 1990 at Sioux City, Iowa.
 
            
 
                 Although claimant's petition reflected a proceeding in 
 
            review-reopening, the undersigned finds this 
 
            characterization as incorrect.  Review-reopenings are 
 
            appropriate in cases where an award of benefits has been 
 
            made through adjudication, or where an agreement for 
 
            settlement has been entered.  See, Iowa Code section 86.14 
 
            (1989).  No evidence was submitted to show that either of 
 
            the requirements have been met, therefore, the proceeding is 
 
            corrected to establish an arbitration proceeding.
 
            
 
                 The evidence in the case consists of testimony from the 
 
            claimant; and, Jim Weiss; joint exhibit 1; defendants' 
 
            exhibits A and B.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is the extent of 
 
            claimant's industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard all the testimony 
 
            and having reviewed all the evidence, finds the following 
 
            facts:
 
            
 
                 Claimant, at the time of the hearing, was 38 years old.  
 
            He is a Sioux City, Iowa native and graduated from Central 
 
            High School in 1971.  Claimant's work history has been 
 
            varied over the past 20 years, but has been primarily in the 
 
            field of laborer-type positions.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 In 1988, he began to work for L & L Builders, and was 
 
            injured on the job on September 29, 1988.
 
            
 
                 Claimant initially received treatment on October 3, 
 
            1988 from J. L. Wiedemeier, M.D., who referred him to Q. J. 
 
            Durward, M.D.  Claimant did not keep an October 6, 1988 
 
            appointment with Dr. Durward.  (Jt. Ex. 1, p. 2 [D. M. 
 
            Youngblade]).
 
            
 
                 Apparently, claimant sought treatment on October 4, 
 
            1988 from D. M. Youngblade, M.D.  X-rays taken at Dr. 
 
            Youngblade's office were normal.  Conservative treatment was 
 
            recommended, and later a referral to an orthopaedic 
 
            specialist was made.  (Jt. Ex. 1, p. 1 [D. M. Youngblade]).
 
            
 
                 Claimant's x-rays of the lumbar spine taken October 5, 
 
            1988 reveal degenerative disc disease at L5-S1 with partial 
 
            sacralization of L5-S1 vertebrae body (Jt. Ex. 1, p. 1).  A 
 
            myelogram and an MRI were normal.  (Jt. Ex. 1, p. 1, [Marian 
 
            Health Center]).  Claimant came under the care of Q. J. 
 
            Durward, M.D., on October 14, 1988.  
 
            
 
                 On November 4, 1988, claimant underwent a myelogram and 
 
            an MRI at Marian Health Center at the direction of Dr. 
 
            Durward (Jt. Ex. 1, p. 1 [Marian Health Center]).  Both test 
 
            results were normal, and Dr. Durward prescribed epidural 
 
            flood with steroid injections and isokinetic rehabilitation.  
 
            Claimant was released to return to work with a lifting 
 
            restriction of 25 lbs.  (Jt. Ex. 1, p. 1 [Marian Health 
 
            Center]).  Dr. Durward also prescribed physical therapy, 
 
            heat, ultrasound and Dolobid.
 
            
 
                 Claimant began physical therapy on November 29, 1988.  
 
            Brian W. Nelson, M.D., made the following physical 
 
            assessment:
 
            
 
                 Low back pain and bilateral leg pain with 
 
                 numbness.  The exact etiology is uncertain in this 
 
                 patient.  He had a definite loss of his right 
 
                 ankle jerk on exam today, but that could be an old 
 
                 problem from his previous surgery.  There were no 
 
                 signs today of an acute radiculopathy and it 
 
                 certainly is possible that most of his leg 
 
                 symptoms are somatically referred.
 
            
 
                    ....
 
            
 
                 1)  I agree with Dr. Durward that this patient 
 
                 does not appear to have a surgical lesion.  
 
                 Because he is unable to work I recommend that he 
 
                 be isokinetically tested and then isokinetically 
 
                 rehab'd with the goal being to increase the 
 
                 strength and endurance of his trunk musculature.
 
            
 
                 2)  I'd like the patient to be seen 3 X a week.
 
            
 
                 3)  Patient should be considered temporarily 
 
                 totally disabled from work.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 4)  I will follow the patient up again in 3 weeks 
 
                 for a recheck.
 
            
 
                 5)  Prognosis for improvement is good, but 
 
                 prognosis for returning to such a heavy and 
 
                 demanding type job is guarded at this time.  Will 
 
                 have to wait and see how the patient does.
 
            
 
                 6)  There is a possibility this patient may have a 
 
                 permanent impairment.
 
            
 
                 The patient was isokinetically tested and was 
 
                 shown to have significant deficits in the lumbar 
 
                 extensors at the higher speeds which correlates 
 
                 with an endurance problem.  At the lower speeds 
 
                 his values were lower than expected for a male of 
 
                 his size and work history.  He appears to be a 
 
                 good candidate for rehab.
 
            
 
                 Claimant continued therapy at the Back Rehabilitation 
 
            Clinic through April 5, 1989, when he was evaluated by Dr. 
 
            Nelson.  Dr. Nelson's evaluation states, in pertinent part:
 
            
 
                    Ron returns for a recheck.  His most recent 
 
                 objective testing has shown him to have plateaued.  
 
                 His plateau level is less than normal values but 
 
                 it did show good consistent efforts without sign 
 
                 of symptom exaggeration.  Subjectively he is about 
 
                 the same.  He seems to do pretty well but when he 
 
                 tries to increase his activity and do repetitive 
 
                 heavy lifting he does have problems.  Because of 
 
                 this I think it probably makes more sense for him 
 
                 to look at some other occupation other than 
 
                 construction work.  Even the lighter construction 
 
                 work might put him at higher risk given the fact 
 
                 that he has been unable to reach normal values.
 
            
 
                    ....
 
            
 
                    EXAMINATION:  Showed him to have a full range 
 
                 of motion of the lumbar spine with some tenderness 
 
                 over the paraspinous muscles.  Neurologically he 
 
                 was intact.  Straight leg raising was negative 
 
                 bilaterally.
 
            
 
                    ASSESSMENT:  Patient appears to have maximized 
 
                 his gains from rehab and I think he has now 
 
                 reached maximum medical improvement.  Based on the 
 
                 results of his diagnostic testing, his 
 
                 computerized strength testing and his examination, 
 
                 I would rate him as having a 5% permanent partial 
 
                 disability of the body as a whole.
 
            
 
                    RECOMMENDATION:  1.  Discontinue formal 
 
                 physical therapy and transition to a home program.
 
            
 
                    2.  I have advised the patient to continue with 
 
                 his home lifeline program permanently.
 
            
 
                    3.  Patient was cautioned again about the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 importance of using proper lifting mechanics.
 
            
 
                    4.  I believe the patient is certainly 
 
                 employable but he should avoid heavy manual labor.  
 
                 He should not be involved in a job which requires 
 
                 repetitive stooping and bending or repetitive 
 
                 lifting.  On an occasional basis I think he can 
 
                 lift up to 75 pounds without much difficulty.  It 
 
                 would also be important for him to be able to not 
 
                 be required to stand or sit without some relief 
 
                 for periods of longer than 4 hours.  Within these 
 
                 restrictions I think he is certainly capable of 
 
                 working and he seems eager to do so.  I will 
 
                 follow him up prn.
 
            
 
            (Claimant's Exhibit 1, Page 16)
 
            
 
                 Claimant received a second opinion from Quentin J. 
 
            Durward, M.D., on September 7, 1989:
 
            
 
                    Ron Bailey returns to the Outpatient Clinic 
 
                 today, now more than 6 months since I last saw 
 
                 him.  In the interim, he has undergone a long 
 
                 period of isokinetic rehabilitation.  This 
 
                 actually did get rid of his leg pain.  He still, 
 
                 intermittently, has left low back pain.  This is 
 
                 particularly brought on when he has to lift.  He 
 
                 plays in a band on the weekend, and even lifting 
 
                 the band equipment gives him recurrent low back 
 
                 pain.  Dr. Nelson had released him for 75 lbs. of 
 
                 lifting restriction, but the patient feels that 
 
                 this will just leave him with severe back pain, 
 
                 necessitating him stopping work again.
 
            
 
                    Exam today shows a normal appearing back.  He 
 
                 has some mild left lower lumbar tenderness.  He 
 
                 forward flexed to 90 degrees with excellent curve 
 
                 reversal.  He extended well, although had some 
 
                 left low back pain.  Lateral flexion to the right 
 
                 exacerbated left low back pain, but not to the 
 
                 left.  Straight leg raising was unrestricted.  His 
 
                 power exam was normal.  His sensory exam was 
 
                 normal.  His reflex exam shows trace symmetric 
 
                 knee reflexes, 1 + left ankle reflect, absent 
 
                 right ankle reflex.
 
            
 
                    I did review the patient's myelogram.  It is 
 
                 absolutely normal.  I don't believe he has a 
 
                 surgical lesion here.  I think he has a chronic 
 
                 lumbar sprain syndrome, probably related to facet 
 
                 joint injury.
 
            
 
                    My recommendation would be to restrict him from 
 
                 lifting more than 30 lbs., and I advised him to 
 
                 avoid bending and lifting.  I think he could 
 
                 undertake a job with these restrictions.  I think 
 
                 his back would not be damaged by lifting up to 75 
 
                 lbs., but it is clear from his history that his 
 
                 pain will be such that he would have to stop work.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            (Cl. Ex. 1, p. 2)
 
            
 
                                conclusions of law
 
            
 
                 The sole issue presented for resolution is whether 
 
            claimant is entitled to benefits for an industrial 
 
            disability.
 
            
 
                 The Iowa Supreme Court in Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886 (Iowa 1983) explained the two 
 
            methods for evaluating a disability--functional and 
 
            industrial:
 
            
 
                 Functional disability is assessed solely by 
 
                 determining the impairment of the body function of 
 
                 the employee; industrial disability is gauged by 
 
                 determining the loss     to the employee's earning 
 
                 capacity.  Functional disability is limited to the 
 
                 loss of physiological capacity of the body or body 
 
                 part.  Industrial disability is not bound to the 
 
                 organ or body incapacity, but measures the extent 
 
                 to which the injury impairs the employee in the 
 
                 ability to earn wages....
 
            
 
                    ...A specific scheduled disability is evaluated 
 
                 by the functional method; the industrial method is 
 
                 used to evaluate an unscheduled disability.
 
            
 
                 Claimant has sustained an injury to his lower back, and 
 
            his disability will be evaluated industrially.  Accordingly, 
 
            claimant's physical limitations, in addition to his overall 
 
            background, will be evaluated in order to determine his 
 
            industrial disability.
 
            
 
                 This is so as impairment and disability are not 
 
                 synonymous.  Degree of industrial disability can 
 
                 in fact be much different than the degree of 
 
                 impairment because in the first instance reference 
 
                 is to loss of earning capacity and in the later to 
 
                 anatomical or functional abnormality or loss.  
 
                 Although loss of function is to be considered and 
 
                 disability can rarely be found without it, it is 
 
                 not so that a degree of industrial disability is 
 
                 proportionally related to a degree of impairment 
 
                 of bodily function.
 
            
 
                    Factors to be considered in determining 
 
                 industrial disability include the employee's 
 
                 medical condition prior to the injury, immediately 
 
                 after the injury and presently; the situs of the 
 
                 injury, its severity and the length of healing 
 
                 period; the work experience of the employee prior 
 
                 to the injury, after the injury and potential for 
 
                 rehabilitation; the employee's qualifications 
 
                 intellectually, emotionally and physically; 
 
                 earnings prior and subsequent to the injury; age; 
 
                 education; motivation; functional impairment as a 
 
                 result of the injury; and inability because of the 
 
                 injury to engage in employment for which the 
 
                 employee is fitted.  Loss of earnings caused by a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 job transfer for reasons related to the injury is 
 
                 also relevant.  These are matters which the finder 
 
                 of fact considers collectively in arriving at the 
 
                 determination of the degree of industrial 
 
                 disability.
 
            
 
                    There are no weighting guidelines that indicate 
 
                 how each of the factors are to be considered.  
 
                 There are no guidelines which give, for example, 
 
                 age a weighted value of ten percent of the total 
 
                 value, education a value of fifteen percent of 
 
                 total, motivation - five percent; work experience 
 
                 - thirty percent, etc.  Neither does a rating of 
 
                 functional impairment directly correlate to a 
 
                 degree of industrial disability to the body as a 
 
                 whole.  In other words, there are no formulae 
 
                 which can be applied and then added up to 
 
                 determine the degree of industrial disability.  It 
 
                 therefore becomes necessary for the deputy to draw 
 
                 upon prior experience, general and specialized 
 
                 knowledge to make the finding with regard to 
 
                 degree of industrial disability.  See Peterson v. 
 
                 Truck Haven Cafe, Inc., (Appeal Decision, February 
 
                 28, 1985); Christensen v. Hagen, Inc., (Appeal 
 
                 Decision, March 26, 1985).
 
            
 
                 Claimant's medical condition prior to the injury is 
 
            unremarkable, although he underwent an L4-L5 fusion in 1984.  
 
            From 1984 to September 29, 1988, claimant did not encounter 
 
            any physical problems that prevented him from performing an 
 
            array of job duties, including light duty and heavy manual 
 
            employment.  After the September 1988 accident, claimant has 
 
            had persistent back pain and, as a result, can no longer 
 
            lift in excess of 75 pounds.  Claimant received a functional 
 
            impairment rating of five percent.  And, one physician 
 
            restricted claimant from lifting 30 pounds and to avoid 
 
            bending and lifting, although these medical restrictions do 
 
            not appear to be supported by the objective medical 
 
            findings.
 
            
 
                 Claimant's injury was to the low back, an injury which 
 
            has affected his ability to find work in the types of jobs 
 
            he has held prior to the injury.  He was in a healing period 
 
            stage for approximately 7 months.
 
            
 
                 Prior work history includes carpenter/construction 
 
            worker; sales; delivery person; musician; maintenance; and, 
 
            automobile painter's helper.  Most, if not all of these 
 
            positions require lifting and bending.  Claimant's attempts 
 
            at finding suitable employment have been marginal, and his 
 
            potential for rehabilitation is good.
 
            
 
                 On an intellectual, emotional and physical level, 
 
            claimant appeared to possess the necessary attributes to 
 
            become employed at a job which adheres to his restrictions.  
 
            His main interest is in music, and he has continually 
 
            pursued this avenue throughout his adulthood.  Claimant 
 
            expressed his desire to gain employment in the record 
 
            industry, but the Sioux City area is certainly limited in 
 
            this type of occupational opportunity.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 At the time of claimant's injury, he was earning $6.50 
 
            an hour.  In the past, his earnings have ranged from minimum 
 
            wage to $10 an hour.  He is currently working in light 
 
            construction, and earns $300 per month.
 
            
 
                 At the time of the injury, claimant was 35 years old; 
 
            at the time of hearing, he was 38 years of age.  He is a 
 
            high school graduate.
 
            
 
                 Claimant's motivation to return to work is 
 
            questionable, an assessment which is borne out by his 
 
            attitude toward the vocational rehabilitationist assigned by 
 
            the insurance carrier to work with him.  The record reflects 
 
            claimant displayed an uncooperative attitude toward efforts 
 
            to find employment with the vocational rehabilitationist's 
 
            help.
 
            
 
                 A low functional impairment rating has been given, and 
 
            lifting and activity restrictions were imposed by both Dr. 
 
            Nelson and Dr. Durward.  Objective test results show 
 
            claimant has sustained some physical limitations.  Claimant 
 
            is limited to a certain degree in the type of employment he 
 
            can undertake.
 
            
 
                 In evaluating all of the factors listed above, the 
 
            undersigned finds claimant has sustained an industrial 
 
            disability of ten percent.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant fifty (50) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred seventy-three and 81/100 
 
            dollars ($173.81) per week commencing April 5, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Joe Cosgrove
 
            Attorney at Law
 
            400 Frances Building
 
            Sioux City Iowa 51101
 
            
 
            Mr Frank T. Harrison
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1800
 
                      Filed February 27, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RON BAILEY,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 898754
 
            L & L BUILDERS,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            GENERAL CASUALTY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1800
 
            The sole issue to be determined was the extent of claimant's 
 
            industrial disability.
 
            Claimant was 35 years old at the time of the injury.  He 
 
            sustained a five percent functional impairment to his low 
 
            back.  Medical restrictions included no standing or sitting 
 
            for more than 4 hours; no lifting of more than 75 pounds.  
 
            Treating physician indicated claimant should not return to 
 
            heavy construction work, which was the work claimant was 
 
            performing at the time of the injury.
 
            Claimant awarded 10 percent industrial disability.