before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JACK H. EVERSOLL,     :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 903157
 
            PROCESS MECHANICAL, INC.,       :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            THE HARTFORD,    :
 
                        :
 
                 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 21, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael H. Irvine
 
            Attorney at Law
 
            P.O. Box 2819
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. Chris J. Scheldrup
 
            Attorney at Law
 
            P.O. Box 1943
 
            Cedar Rapids, Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JACK H. EVERSOLL,     :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 903157
 
            PROCESS MECHANICAL, INC.,       :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            THE HARTFORD,    :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JACK H. EVERSOLL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 903157
 
            PROCESS MECHANICAL, INC.,     :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Jack H. Eversoll, against Process Mechanical, Inc. 
 
            (hereinafter referred to as Process), and The Hartford, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on January 3, 
 
            1989.  On January 30, 1992, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On January 3, 1989, claimant received an injury 
 
            arising out of and in the course of employment with Process.
 
            
 
                 2. Claimant has been paid his entitlement to healing 
 
            period benefits.
 
            
 
                 3. The injury was a cause of permanent industrial dis
 
            ability to the body as a whole.
 
            
 
                 4.  Permanent partial disability benefits shall begin 
 
            on 7/10/89.
 
            
 
                 5.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $400, he was single and he was enti
 
            tled to only one exemption.  This establishes a weekly rate 
 
            of compensation of $241.10, according to the industrial com
 
            missioner's published rate booklet for FY 89.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                      ISSUE
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is credible.
 
            
 
                 Claimant worked for Process from November 1988 until 
 
            the work injury herein.  Process is a subcontractor engaged 
 
            in new construction.  Claimant has worked for several con
 
            tractors since 1982 in welding and fitting structural steel 
 
            above ground level.  Claimant at times would work over 100 
 
            feet above the ground walking on narrow I-beams.  Most of 
 
            claimant's past employment has been in welding jobs since 
 
            learning to weld at a juvenile training facility when he was 
 
            in his teens.  Claimant's earnings varied from job to job 
 
            but ranged from $10-12 per hour at the time of his injury.  
 
            When he worked away from home, he would receive in addition 
 
            to his regular pay a $15-25 per diem.
 
            
 
                 The work injury on January 3, 1989 occurred as a result 
 
            of a fall.  Claimant, who has no independent recollection of 
 
            this fall, stated that fellow workers observed him fall 15 
 
            feet when a safety cable, against which he was leaning, gave 
 
            away.  Claimant's injury primarily involved the head.  He 
 
            was hospitalized immediately.  Claimant was unconscious for 
 
            5-6 days.  His primary treating physician, James LaMorgese 
 
            M.D., a neurosurgeon, diagnosed closed head injury with 
 
            cerebral concussion and bilateral contusions to the temporal 
 
            lobes of the brain with parenchymal hemorrhage in the left 
 
            temporal lobe.
 
            
 
                 After his release from the hospital, claimant's recov
 
            ery took several months.  An initial symptom of memory con
 
            fusion improved but claimant today still suffers from recur
 
            rent severe headaches which Dr. LaMorgese believes is 
 
            related to the work injury.  Claimant also has had problems 
 
            with hearing and his sense of smell since the injury but no 
 
            physician causally relates these problems to the injury.  
 
            Claimant admits to ear difficulties prior to the work 
 
            injury.  Claimant was released to return to work in July 
 
            1989 but did not actually return to work until September, 
 
            1989.
 
            
 
                 The work injury of January 3, 1989, was a cause of a 
 
            five percent permanent impairment to the body as a whole.  
 
            Also, as a result the injury, claimant is permanently 
 
            restricted by Dr. LaMorgese to working at ground level.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Even climbing ladders is prohibited.  Dr. LaMorgese's views 
 
            are uncontroverted in the record.  Claimant had no prior 
 
            serious work injuries or permanent impairment according to 
 
            the medical records submitted into evidence.  Dr. 
 
            LaMorgese's permanency views are based upon continuing 
 
            headaches after the injury and the future risk of seizure.  
 
            He states that the risk of seizure now is very small but it 
 
            is still greater than the average population and suffi
 
            ciently large to impose a permanent restriction against 
 
            above ground work.
 
            
 
                 Due to resulting permanent impairment and primarily the 
 
            physician imposed work restriction, the work injury of 
 
            January 3, 1989, is a cause of a 35 percent loss of earning 
 
            capacity.  Claimant's medical condition before the work 
 
            injury was excellent and he had no functional impairments or 
 
            ascertainable disabilities.  Although claimant is physically 
 
            able to perform his duties and the risk of seizure is 
 
            slight, the restriction against working off the ground has 
 
            had a significant adverse impact upon claimant's earning 
 
            capacity.  His higher wages in the two year period prior to 
 
            the injury were largely due to his ability to work high 
 
            above ground.  Although he was only making $10 per hour in 
 
            his job at the time of injury, claimant and a vocational 
 
            rehabilitation counselor, Thomas Wagner, established that 
 
            such work today pays up to $15 per hour.  Although claimant 
 
            has returned to work and currently is receiving $10 per 
 
            hour, this is due to a special accommodation for claimant 
 
            that would not be available industry wide.  Claimant is 
 
            probably lucky to being receiving such a wage according to 
 
            Wagner.  Since the injury, claimant has worked in jobs 
 
            requiring him to work above ground but only because he 
 
            failed to tell his employer of the restriction and assumed 
 
            the risk of falling from a seizure in order to remain 
 
            employed.  However, as explained by claimant, there is a 
 
            networking of information about jobs and employees in his 
 
            industry and his ability to return to high work by conceal
 
            ing his disability has been greatly diminished. Wagner also 
 
            verified that claimant at age 33 was nearing the peak of his 
 
            employment career earnings.  He stated that employees gener
 
            ally maximize their incomes between the ages of 45 to 55 and 
 
            thereafter earnings begin to gradually fall until retire
 
            ment.  The injury has flattened claimant's earnings curve.
 
            
 
                 Wagner's views concerning claimant's loss of wages were 
 
            not controverted by the vocational consultant retained by 
 
            defendants, Barbara Laughlin.  She had identified several 
 
            openings available to claimant within his restrictions but 
 
            did not discuss what these positions would pay.  She stated 
 
            that claimant's past drug and alcohol abuse problem has now 
 
            adversely affected his employability due to the loss of his 
 
            driver's license from three drug driving convictions after 
 
            the injury.
 
            
 
                 There is little question that claimant in the past has 
 
            experienced and is probably continuing to experience prob
 
            lems with drug and alcohol abuse.  He admitted to past 
 
            addiction to cocaine in the mid-1980s and to continuing use 
 
            of alcohol and marijuana.  He even used marijuana in the 
 
            hospital after the injury claiming it was "medicine to him."  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            He admits to abusing alcohol even though it aggravates his 
 
            headaches.  This abuse had now lead to the loss of his 
 
            driver's license.  Clearly he has a problem which affects 
 
            his employability.
 
            
 
                 However, claimant has a strong work ethic and remained 
 
            employed even during his incarcerations for drunk driving.  
 
            He is able to continue working without a driver's license as 
 
            driving has never been a requirement of his work.  Friends 
 
            and relatives are willing to provide transportation for him.  
 
            Obviously, if he continues to disregard criminal statutes 
 
            relating to alcohol use, he may suffer a further loss of 
 
            employability from long term incarceration.  This however 
 
            has not yet happened.
 
            
 
                 Claimant remains employable and is continuing to work 
 
            in his chosen vocation of welding.  There is no need for 
 
            vocational rehabilitation.  However, apart from his drug and 
 
            alcohol problems, claimant is earning approximately $5 less 
 
            per hour and has significantly fewer potential employers as 
 
            a direct result of his injury at work on January 3, 1989.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence the extent of weekly benefits for permanent disability 
 
            to which claimant is entitled.  As the claimant has shown 
 
            that the work injury was a cause a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  Examination of several factors deter
 
            mines the extent to which a work injury and a resulting 
 
            medical condition caused an industrial disability.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc. (Appeal Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 35 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 175 
 
            weeks of permanent partial disability benefits as a matter 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of law under Iowa Code section 85.34(2)(u) which is 35 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at a rate of two hundred forty-one and 10/l00 dol
 
            lars ($241.10) per week from July 10, 1989.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33 as set forth in the prehearing 
 
            report.
 
            
 
                 5.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Michael H. Irvine
 
            Attorney at Law
 
            P O Box 2819
 
            417 lst Ave SE
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. Chris J. Scheldrup
 
            Attorney at Law
 
            2720 lst Ave NE
 
            P O Box 1943
 
            Cedar Rapids  IA  52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed January 21, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JACK H. EVERSOLL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 903157
 
            PROCESS MECHANICAL, INC.,     :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
 
 
 
 
 
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
RUSSELL T. WEAVILL,    
 
         
 
     Claimant,       
 
         
 
vs.             
 
                                        File No. 903186
 
JOHN MORRELL & CO.,    
 
                                     A R B I T R A T I O N
 
     Employer,       
 
                                        D E C I S I O N
 
and             
 
         
 
NATIONAL UNION FIRE INS,       
 
         
 
     Insurance Carrier,      
 
     Defendants.     
 
___________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Russell Weavill against 
 
his employer, John Morrell and Company, based upon an injury that occurred 
 
on December 22, 1988.  The only issue in the case is the amount of 
 
permanent partial disability that Weavill is entitled to recover as a 
 
result of that injury.  The underlying, controlling issue is whether 
 
the permanent disability is a scheduled disability under the provisions 
 
of Code section 85.34(2)(m) or a disability compensable under section 
 
85.34(2)(u).
 
 
 
The evidence consists of testimony from Russell T. Weavill, Charlotte 
 
Weavill and Leo Heilman.  The record also contains joint exhibit 1 which 
 
contains 77 pages.
 
 
 
                         FINDINGS OF FACT
 
 
 
Having observed the appearance and demeanor of all the witnesses who 
 
appeared at the hearing and considered their testimony in light of the 
 
other evidence in the record it is found that their is no irreconcilable 
 
conflict in any of the evidence and all the witnesses are fully credible.  
 
Russell T. Weavill is a 45-year-old married man who did not do well 
 
in school.  He finished the tenth grade and ceased formal education 
 
permanently at age 16 or 17.  He obtained a job in a plant which bottled 
 
soda pop.  Russell is a large man whose height is six feet zero inches 
 
and whose weight is 287 pounds.  His weight made him ineligible for the 
 
military service.  He participated in the Job Corps for approximately 
 
two years and was trained as a short-order cook.  He has never worked 
 
as a cook in any capacity.  Russell also completed an eight week course 
 
in driving straight trucks while in the Job Corps.  Years later he 
 
completed an eight week course in semi driving at Western Iowa Technical 
 
Institute.  Since leaving the Job Corps Russell's primary occupation has 
 
been packing house work.  He has also worked intermittently as a truck 
 
driver.  For approximately two or three years he worked building 
 
semi-trailers.  
 
 
 
Russell was injured on December 22, 1988, when a door opened unexpectedly 
 
while he was carrying bags of ice.  He fell backwards landing with his 
 
right arm underneath him.  He felt a sharp burning sensation in his 
 
right shoulder, neck and arm.  He reported the injury and was provided 
 
with appropriate medical treatment.  Diagnostic tests showed Russell's 
 
right rotator cuff to be torn.  On February 6, 1989, Orthopedic Surgeon 
 
Kevin J. Liudahl, M.D., performed rotator cuff repair surgery.
 

 
 
 
 
 
 
 
The surgery performed by Dr. Liudahl was not successful at resolving 
 
Russell's complaints.  Eventually he came under the treatment of 
 
Orthopedic Surgeon R.H. Cofield at the Mayo Clinic in Rochester, 
 
Minnesota.  After further diagnostic testing, a second surgery was 
 
performed on Russell's right shoulder.  The surgical procedures consisted 
 
of right rotator cuff repair, right anterior acromioplasty and excision 
 
of the right distal clavicle (exhibit 1, pages 43, 50).  The second 
 
surgery was successful at resolving the bulk of Russell's symptoms.  
 
In a report dated April 18, 1991, Dr. Cofield stated:
 
 
 
He does have continuing work limitations.  He can, with both 
 
hands, lift 15 to 20 pounds at waist level on a repetitive 
 
basis and lift 50 pounds occasionally.  Using the right upper 
 
extremity, he cannot do any lifting at all above chest level 
 
and, of course, cannot do repetitive arm movements above 
 
this level either.  
 
 
 
I think it would be possible to assign a permanent physical 
 
impairment utilizing the American Medical Association Guides 
 
to the Evaluation of Permanent Physical Impairment.  
 
Mr. Weavill's disability relative to the right upper 
 
extremity would be 15 percent, a small amount of which is 
 
related to reduction in movement, and most of which is 
 
related to diminution in strength.
 
 
 
(exhibit 1, pages 64-65)
 
 
 
On May 28, 1991, Dr. Cofield reported that under the AMA Guides the 
 
impairment of the upper extremity is equivalent to 9 percent of the 
 
whole person (ex. 1, p. 63).
 
 
 
Russell returned to work on or about April 19, 1991.  He has remained 
 
employed by John Morrell since that date.  He bid into the same job 
 
as he held at the time of the injury and has received normal pay 
 
increases since that date.  Russell's shoulder becomes more symptomatic 
 
and troublesome as his use of the shoulder increases.  He frequently 
 
takes Advil or ibuprofen.  His wife rubs analgesics on his shoulder 
 
when he is home from work.  Russell's work requires some activity 
 
which exceeds the restrictions recommended by Dr. Cofield.  He appears 
 
capable of continuing to perform his current job indefinitely.
 
 
 
Russell demonstrated the capabilities of his right arm at the hearing.  
 
Without assistance from his left arm, he was able to raise the right 
 
arm with his hand extended upward to the point that the humerus 
 
was horizontal and the forearm and hand vertical.  With assistance 
 
from the left hand he could raise the right to the point that the 
 
humerus was approximately 30 degrees above horizontal.  He displayed 
 
a scar which ran diagonally across the top of his shoulder commencing 
 
at the front outer portion of the shoulder and ending on the backside 
 
close to the base of his neck.  
 
 
 
It is found that the impairment rating and activity restrictions 
 
recommended by Dr. Cofield are correct.  They are not controverted.  
 
It is found that Russell's stated capabilities, limitations and symptoms 
 
regarding his right shoulder and arm are correct.  
 
 
 
There are approximately 90 jobs on the site of the John Morrell kill 
 
floor where Russell works.  The superintendent of the kill floor 
 
stated that of those 90, approximately 20 would exceed Russell's 
 
restrictions.  Russell is also eligible to bid approximately 50 other 
 
jobs which are in the cutting room.  Most of those involve using a 
 
knife at waist level.  Russell has not bid on any other jobs.  There 
 
is no evidence in the record indicating which jobs his seniority would 
 
enable him to successfully bid into.
 
 
 
Russell also has complaints involving his neck and other parts of 
 
his body.  They are relatively minor in nature, have not been aggressively 
 
treated and no physician has imposed any activity restrictions or 
 

 
 
 
 
 
 
 
impairment rating with regard to any of his other symptoms.  There 
 
is no showing of any physiological or anatomical abnormality which 
 
coincides with Russell's other complaints.  Russell's principal problem 
 
involves his right shoulder.
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
A great deal of the dispute in this case surrounds the issue of 
 
whether this is a scheduled injury to Russell's arm compensable 
 
under section 85.34(2)(m) or an injury compensable under section 
 
85.34(2)(u).  Iowa Code section 85.34(2)(m) states, "The loss of 
 
two-thirds of that part of an arm between the shoulder joint and the 
 
elbow joint shall equal the loss of an arm...."  Section 85.34(2)(u) 
 
states, "In all cases of permanent partial disability other than 
 
those hereinabove described or referred to in paragraphs "a" through 
 
"t" hereof, the compensation shall be paid during the number of 
 
weeks in relation to five hundred weeks as the disability bears to 
 
the body of the injured employee as a whole." 
 
 
 
A recent case dealing with this issue decided by the Iowa Supreme 
 
Court is Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  
 
In that decision the supreme court stated "We conclude that Iowa 
 
Code section 85.34(2)(o) in defining a leg, does not include a hip 
 
joint."  That statement from the supreme court is a conclusion of 
 
law which creates a binding legal precedent that applies to every 
 
pertinent case.  It is not a mere affirmance of a finding of fact 
 
made in reliance upon the substantial evidence rule.  Logic requires 
 
that the same result would follow if the code section were changed 
 
to 85.34(2)(m), the word "leg" were changed to "arm" and the word 
 
"hip" were changed to "shoulder."
 
 
 
An elementary understanding of terminology and anatomy is critical.  
 
The rotator cuff is an anatomical structure which is part of the 
 
structures which connect the arm to the shoulder girdle.  It is 
 
the socket portion of the shoulder joint which is a ball and 
 
socket type of joint.  The head of the humerus is the ball portion 
 
of the joint.  The acromion is a part of the bone known as the 
 
scapula or sometimes commonly referred to as the shoulder blade.  
 
The clavicle is a bone that links the sternum to the scapula.  
 
It is sometimes referred to as the collarbone.  
 
 
 
The American Heritage Dictionary, 2d College Ed., defines "arm" as 
 
"an upper limb of the human body connecting the hand and wrist to 
 
the shoulder."  In common usage, the term "arm" means the portion of 
 
the human body which is composed of the upper arm (humerus) and 
 
forearm (radius and ulna).  In common usage it sometimes includes 
 
the hand and wrist.  No authority has been found in any dictionary, 
 
treatise or from common usage which includes the clavicle or scapula 
 
as part of the arm.  For purposes of section 85.34(2)(m) "arm" has 
 
its common meaning, namely, the upper limb which connects the wrist 
 
to the shoulder.  The word "arm" does not include the shoulder.
 
 
 
In medical terminology, as used by the medical profession, the term 
 
"arm" means "the segment of the superior limb between the shoulder 
 
and the elbow."  Stedman's Medical Dictionary, 24th ed., p. 109.  
 
That reference goes on to recognize that the term "arm" is inaptly 
 
used by the general population to mean the whole superior limb.
 
 
 
A great deal of the confusion dealing with shoulder and hip injuries 
 
arises from use of the medical terminology "upper extremity" and 
 
"lower extremity."  Some individuals tend to use those terms 
 
interchangeably with the terms "arm" and "leg" which appear in the 
 
statute.  Those terms are not synonymous and using them interchangeably 
 
creates confusion, errors and incorrect results.  The term "upper 
 
extremity" has a precise meaning.  In Gray's Anatomy, copyright 1974, 
 
32d printing, at page 134, upper extremity is defined, "The bones of 
 
the upper extremity consist of those of the shoulder girdle, the arm, 
 
the forearm, and the hand.  The term "shoulder girdle" is also 
 
defined.  "The shoulder girdle consists of two bones, the clavicle 
 
and the scapula."  On that page and the following pages, the 
 
extremities, their function and other basic anatomical facts are 
 
described.  (Some older, obsolete versions of Gray's use the terms 
 
"arm" and "upper extremity" interchangeably but current versions 
 

 
 
 
 
 
 
 
make a distinction.) 
 
The term "upper extremity" is used in the Guides to Evaluation of 
 
Permanent Impairment, 3d ed. (revised), published by the American 
 
Medical Association.  The Guides are commonly used to obtain 
 
predictable impairment ratings for specified medical conditions.  
 
The Guides provide impairment ratings of "extremities."  The 
 
Guides do not provide impairment ratings for arms and legs.  It 
 
is for this reason that in Lauhoff the supreme court stated "The 
 
AMA guide relied on is of doubtful authority in this case, in any 
 
event, because it includes the hip as part of the `lower extremity' 
 
a term which is not found in our statutory schedule." (pp. 839 & 840)  
 
Abnormal motion of the shoulder is rated at pages 34-38 of the Guides 
 
as impairment of the "upper extremity."  The term "shoulder" is 
 
defined in Stedman's Medical Dictionary, 24th Edition at page 1282 
 
as "the lateral portion of the scapular region, where the scapula 
 
joins with the clavicle and humerus and is covered by the rounded mass 
 
of the deltoid muscle."  It is therefore clear that the term "upper 
 
extremity" includes not only the hand and the arm (in its common 
 
usage) but it also includes the shoulder.  
 
 
 
When a physician uses the terms "body as a whole" or "whole person," 
 
it means the trunk of the body, exclusive of the extremities.  It 
 
does not include the hips or shoulders since they are parts of the 
 
lower and upper extremities.
 
 
 
The term "impairment" is a medical terms that is not found in the 
 
statute.  Its frequent, incorrect use is also responsible for 
 
confusion surrounding this issue.  Stedman's at page 696 defines 
 
it as "weakening, damage or deterioration; e.g, as a result of injury 
 
or disease."  The key portion of the definition is the word "damage."  
 
If a part of the body has not been damaged it is not possible for 
 
it to be impaired.  The ability to make full use of an undamaged part 
 
of the body can be lost if its function is dependent upon some other 
 
part of the body which has been damaged.  When such a situation occurs, 
 
it is the damaged part that is impaired, not the undamaged part.
 
 
 
The term "impairment of the upper extremity" may properly be used 
 
by the medical profession to define an injury which, for workers' 
 
compensation purposes, is limited to the hand, is limited to the arm 
 
or which exists only in the shoulder.  Impairment of many parts of 
 
the body can be converted under the Guides to an equivalent impairment 
 
of other parts or of the whole person.  A doctor's choice of 
 
terminology or choice of converting or not converting has no bearing 
 
upon the ultimate determination of where the disability and 
 
impairment is actually located.  The fact that a physician rates 
 
impairment as being of the "upper extremity" does not indicate whether 
 
or not it is limited to the arm or hand.
 
 
 
In this case, the evidence in the record does not show any damage, 
 
impairment, disability, or loss of function whatsoever that is 
 
located within Russell's right arm.  His right arm has not been 
 
damaged and appears to be perfectly healthy.  His arm has not been 
 
the subject of a medical diagnosis, medical care or surgery.  All the 
 
medical treatment and surgery has been performed on Russell's right 
 
shoulder.  The treatment has been for damage and abnormalities 
 
which were in his rotator cuff, acromion and clavicle.  Russell's 
 
loss of ability to move his right arm has not resulted from any 
 
damage or impairment to the arm itself.  It results from damage and 
 
impairment of the shoulder girdle, namely, the structures of, in 
 
and about the acromion, clavicle and rotator cuff.  The arm itself 
 
was not injured or damaged and is not impaired.  The structures 
 
which provide the arm with movement at the shoulder are physiologically 
 
and anatomically damaged, deranged and disrupted.  It is those 
 
shoulder structures which were the anatomical site of the original 
 
injury and damage.  It is those damaged and impaired shoulder 
 
structures and their loss of function which resulted from the injury 
 

 
 
 
 
 
 
 
that makes Russell unable to make full use of his right arm.  
 
It is true that Russell does not have full use of his right arm, 
 
but the loss of use of his right arm is caused by the impairment 
 
of function of structures in his shoulder, not by any injury, 
 
impairment or damage in the arm itself. 
 
 
 
More than 40 years ago the Iowa Supreme Court dealt with a case 
 
in which the employee had suffered a fracture of the distal end 
 
of the collarbone (clavicle) where it joins the shoulder blade.  
 
In medical terminology, those structures are the distal end of the 
 
clavicle and the acromion.  In that case, the employer asserted 
 
that the disability should be compensated as a scheduled disability 
 
of the arm.  In rejecting that argument the Iowa Supreme Court 
 
stated, "Moreover it assumes an injury to the shoulder is an injury 
 
to an arm.  This assumption is unwarranted.  Subsection 13 [the 
 
current equivalent of section 85.34(2)(m)] does not apply to a shoulder 
 
injury, nor is such an injury scheduled in any other 
 
subsection...." emphasis added.   Alm v. Morris Barick Cattle Co., 
 
240 Iowa 1174, 1177 38 N.W.2d 161 (1949).
 
 
 
That case cites Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 
 
569 (1943).  Dailey was a case in which the employee had suffered 
 
a fracture of the femur.  It did not heal properly (an apparently 
 
common occurrence), and the result was absorption or atrophy changes 
 
in the acetabulum (hip socket) although not marked.  There also 
 
resulted tilting of the pelvis and a compensatory curvature of the 
 
spine.  The employer in that case had unsucessfully argued, "Even 
 
though the injury be to a scheduled member we readily concede that 
 
if as a result of such injury some other part of the body is 
 
affected so as to create a disability separate and distinct from 
 
the usual, ordinary and natural results of the injury to the scheduled 
 
member, compensation may be awarded in addition to that provided 
 
in the schedule.  Conversely we contend that even should the situs 
 
of the injury be without the schedule, the workman nevertheless is 
 
limited by the provisions of the schedule when the disability and 
 
incapacity flowing from the injury are manifested in and confined 
 
to the schedule member." 
 
 
 
The Iowa Supreme Court rejected that argument stating,  "Support 
 
for their argument is found in some of the cases they cite from 
 
other jurisdictions, but we find ourselves unable to agree with 
 
the doctrine of these decisions..." Dailey, 233 Iowa page 764.  
 
The court went on to explain how the schedule operates, in particular, 
 
that an injury to a scheduled member may in fact cause the person to 
 
be permanently totally disabled and then states, "Such injury, 
 
though causing permanent total disability, is arbitrarily compensable 
 
according to the schedule.  But where there is injury to some 
 
scheduled member, and also to parts of the body not included in the 
 
schedule, the resultant `permanent total disability' if established, 
 
is compensable under Code section 1395" (The counterpart of current 
 
section 85.33). emphasis added.  The court goes on to state, "It is 
 
our conclusion appellee's injury is not within the schedules of Code 
 
section 1396 because the actual physical injury extended beyond and 
 
outside the scheduled area."  233 Iowa page 765. emphasis added.
 
 
 
The Iowa Supreme Court recently again addressed the issue of 
 
scheduled versus nonscheduled injuries in the cases Mortimer v. 
 
Fruehauf Corporation, No. 200/92 - 1143 ___ N.W.2d ___ (Iowa 1993); 
 
Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  Mortimer 
 
clearly states that the schedule is arbitrary and is to be used only 
 
when no other option is available.  In Lauhauff the supreme court 
 
relied heavily upon the medical reference H. Gray, Anatomy of the Human 
 
Body.  The court also recognized the distinction between the 
 
terminology of "lower extremity" which is used in the AMA Guides and 
 
the "leg" which is found in the statute.  The illustrative portion 
 
of the decision states: 
 

 
     
 
 
 
 
 
Lauhoff argues that, even if a hip is considered to be a 
 
part of the body as a whole, there can be no recovery of 
 
benefits for industrial disability unless it is shown that 
 
a part of the body other than the leg is impaired.  This, 
 
of course, is true.  It argues, however, that, since the 
 
function of a hip is to provide articulation for the leg, 
 
impairment of the hip translates only in impairment of 
 
the leg, and is therefore governed by the leg schedule.
 
We reject this argument; the impairment of body functions 
 
in this case were in the hip, not the leg, and we will 
 
not consider these functions to be coextensive merely because 
 
the hip function impacts on that of the leg.  To do 
 
so would extend the application of Iowa Code section 85.34(2)(o) 
 
beyond its express terms by applying it to a body member 
 
not expressly included.  The result would be a rupturing of 
 
the conceptual tidiness which is said to be the very 
 
essense of the scheduled-injury approach.  (Lauhoff Grain v. 
 
McIntosh, 395 N.W.2d 834, 840 (Iowa 1986)
 
 
 
The most recent case addressing whether an injury should be 
 
compensated by the schedule is Mortimer, ___ N.W.2d ___.  In that 
 
case the court confirmed the well established principle that the 
 
workers' compensation statutes are to be construed liberally to benefit 
 
the injured worker and again acknowledged the arbitrariness (unfairness) 
 
of the scheduled injury system.  It would seem to be elementary that 
 
injured workers should be treated as fairly as the statute permits 
 
and that any doubt in construction or application should be resolved 
 
in favor of fairness.  Compensating permanent disability industrially 
 
based on loss of earning capacity is inherently more fair than 
 
compensation based on the schedule.  In Mortimer this court stated:
 
 
 
A.  Compensability under Iowa's workers' compensation act.  Before 
 
proceeding to the question at hand, we think it would be helpful 
 
to review the compensation scheme under Iowa Code chapter 85, Iowa's 
 
workers' compensation act.  As a creature of statute, our workers' 
 
compensation law--subject to constitutional limitations--may provide 
 
such provisions and limitations as the legislature deems necessary.  
 
But, as we noted earlier, this law is for the benefit of the working 
 
person and should be, within reason, liberally construed.
 
     
 
Functional disability is arrived at by determining 
 
the impairment of the employee's body function.  
 
This disability is limited to the loss of the 
 
physiological capacity of the body or body part.  
 
Simbro v. Delong's Sportswear, 332 N.W.2d 886, 887 
 
(Iowa 1983).
 
     
 
In contrast, industrial disability is arrived at by 
 
determining the loss to the employee's earning 
 
capacity of the body or body part.  In this determination 
 
impairment of the body function--that is, functional 
 
disability--is just one factor.  Other factors include 
 
the employee's age, education, qualifications, experience, 
 
and the inability of the employee to engage in employment 
 
for which the employee is fitted.  All of these factors 
 
are used to measure the extent to which the injury impairs 
 
the employee's ability to earn wages.  Id. 
 
     
 
Chapter 85 divides permanent partial disability into 
 
either a scheduled or unscheduled loss.  See Iowa 
 
Code  85.34(2).  Paragraphs (a) through (t) of 
 
section 85.34(2) are reserved for scheduled injuries, 
 
like a loss of a foot.  Specific weekly benefits 
 
are listed.  For example, paragraph (n) provides for 
 
weekly compensation during one hundred fifty weeks 
 

 
 
 
 
 
 
 
for loss of a foot.  Unscheduled injuries are covered 
 
in paragraph (u).  Benefits for these are based on the 
 
injury to the body as a whole.  See Iowa Code 
 
 85.34(2)(u) ("compensation shall be paid during 
 
the number of weeks in relation to five hundred weeks 
 
as the disability bears to the body of the injured 
 
employee as a whole").
 
     
 
We have approved the use of functional industrial 
 
methods of determination within appropriate 
 
classifications of section 85.34(2).  For example, 
 
a specific scheduled disability is determined by 
 
the functional method; an unscheduled disability is 
 
determined by the industrial method.  Simbro, 
 
332 N.W.2d at 887; see also Graves v. Eagle Iron Works, 
 
331 N.W.2d 116, 117-19 (Iowa 1983) (held that an 
 
employee with a permanent partial disability to a 
 
leg had a scheduled disability that required the 
 
determination of functional impairment of his leg 
 
without regard to the industrial disability factors).  
 
So a person may suffer a permanent total disability 
 
as a result of some scheduled injury.  This may 
 
happen because of age, lack of training, or other 
 
condition peculiar to the person.  Yet such an 
 
injury is arbitrarily compensable according to the 
 
schedule.
 
     
 
An unscheduled injury can result in permanent 
 
total disability.  In these circumstances, the 
 
"weekly compensation is payable during the period 
 
of the employee's disability."  See Iowa Code 
 
 85.34(3).
 
....    
 
...Unscheduled injuries are covered in paragraph 
 
(u) of section 85.34(2).... This provision 
 
sets no limitation as to the physical location 
 
of the injury causing the disability.
 
     
 
The only limitation regarding location of the injury concerns 
 
permanent partial disabilities arising from scheduled 
 
injuries.  And although such injuries may cause permanent 
 
total disability because of the claimant's lack of 
 
education or experience or physical strength or ability, 
 
the injuries are arbitrarily compensable according to 
 
the schedule.  This is so because the legislature in 
 
its wisdom has seen fit to give the commission no 
 
discretion with regard to scheduled injuries.  The legislature did 
 
this in order to make certain the amount of compensation in 
 
cases of specific injuries and to avoid controversies.  But 
 
where there is injury to a scheduled member and also to parts of 
 
the body not included in this schedule, there is no logical 
 
reason for such arbitrariness.
 
 
 
It is clearly illustrated in Mortimer that there is no legal 
 
requirement to prove that an injury extends into "the body as a 
 
whole" in order to compensate the injury under section 85.34(2)(u).  
 
All that is necessary is to prove that the permanent physical 
 
injury impairs a part of the body which is not included in the 
 
schedule.  In this case there is ample evidence of permanent injury 
 
to the shoulder, in particular, the clavicle.  There is a 
 
scarcity of evidence of any injury to the arm.  There is no logical, 
 
good faith way to find that the disability is confined to the arm.
 
 
 
In order to make a correct legal evaluation it is necessary to 
 
look to the anatomical site of the physical injury, impairment 
 
and damage which produces the loss of function.  As clearly 
 
mandated by Mortimer and Lauhoff, where the physical damage or 
 
derangement which causes the loss of use or impairment of an 
 
arm is found in the shoulder joint, or elsewhere in the shoulder, 
 
rather than in the arm itself, the disability is not a scheduled 
 
disability of the arm.
 
 
 
In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner 
 
Report 281 (App. Dec. 1982), a torn rotator cuff was found to 
 
cause disability to the body as a whole.  Anatomically the clavicle 
 
is at least as far into the body as the rotator cuff.
 

 
 
 
 
 
Two recent appeal decisions issued by this agency deal with 
 
injuries in the acromioclavicular area of the shoulder.  
 
Those decisions are Hike v. IBP, inc., file number 764571 
 
(App. Dec. Oct. 23, 1990); Prewitt v. Firestone Tire and 
 
Rubber Co., file numbers 931128 and 876686 (App. Dec. Aug. 12, 
 
1992).  Lauhoff is a case where the initial trauma and injury 
 
was to a scheduled member, the leg, as evidenced by the 
 
fracture of the femur.  The injury was taken into the body by 
 
after effects which ran into the hip joint.  Hike, Prewitt 
 
and the instant case, all involve situations where the initial 
 
trauma and anatomical injury was not located in a scheduled member.  
 
In all three of these cases, the initial, primary trauma and 
 
injury was to the shoulder girdle, a situation much like the situation 
 
in Alm.  In Hike and Prewitt, as in the instant case, there 
 
is no evidence of any significant injury, anatomical damage, 
 
derangement or other problem within the arm itself.  The only 
 
problem in any of these three cases is the impact that the 
 
deranged shoulder has upon the ability to use the arm.  In each 
 
of these three cases dealing with the shoulder, namely, this 
 
case, Hike and Prewitt, the only possible explanation in the 
 
evidence which could cause loss of full use of the arm is the 
 
internal derangement in the shoulder.  Unlike Lauhoff, none of 
 
these agency cases had evidence of injury to the scheduled 
 
member itself.  What is clear from Lauhoff, however, is that 
 
if the loss of function of a scheduled member results from 
 
impairment of the function of the joint where the member attaches 
 
to the body and upon which it is dependent for its function, 
 
then the disability is to be evaluated and compensated industrially.  
 
It is difficult to reconcile Hike and Prewitt with Alm, Dailey, 
 
Lauhoff and Mortimer.  It is likewise difficult to reconcile 
 
Hike and Prewitt with prior agency precedents such as 
 
Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner 
 
Report 281 (App. Dec. 1982) and the recent decision Auten 
 
v. Celotex Corp., file number 873898 (App. Dec. May 22, 1993).  
 
 
 
It is noted that Hike and Prewitt were taken to judicial 
 
review in the district court, reversed and remanded for being 
 
inconsistent with Lauhoff.  The recent agency precedents 
 
demonstrated by Auten and Prewitt seem to state that if the 
 
injury impairs the rotator cuff it is not limited to the 
 
arm, but if it runs further into the body into the clavicle, the 
 
disability is limited to the arm, even if the arm itself is 
 
uninjured, unimpaired and affected only by loss of motion at the 
 
shoulder joint.
 
 
 
It is concluded that the precedents set by the Iowa Supreme 
 
Court are controlling over contrary precedents within the 
 
agency.  It is therefore concluded that since the use of Russell 
 
Weavill's arm is limited only as a result of the impairment of 
 
the function of his shoulder, and not from any damage or impairment 
 
of the arm itself, that the compensation should be determined in 
 
accordance with section 85.34(2)(u).  It is an injury to the body 
 
as a whole, not a scheduled injury.
 
 
 
Since claimant has an impairment to the body as a whole, an 
 
industrial disability has been sustained.  Industrial disability 
 
was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 
 
N.W.2d 899 (1935) as follows: "It is therefore plain that the 
 
legislature intended the term `disability' to mean `industrial 
 
disability' or loss of earning capacity and not a mere 
 
`functional disability' to be computed in the terms of percentages 
 
of the total physical and mental ability of a normal man."
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, 
 
but consideration must also be given to the injured employee's age, 
 

 
 
 
 
 
 
 
education, qualifications, experience, motivation, loss of earnings, 
 
severity and situs of the injury, work restrictions, inability to 
 
engage in employment for which the employee is fitted and the 
 
employer's offer of work or failure to so offer.  Olson v. 
 
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
Industrial disability or loss of earning capacity is a concept that 
 
is quite similar to impairment of earning capacity, an element of 
 
damage in a tort case.  Impairment of physical capacity creates an 
 
inference of lessened earning capacity.  The basic element to be 
 
determined, however, is the reduction in value of the general 
 
earning capacity of the person, rather than the loss of wages 
 
or earnings in a specific occupation.  Post-injury earnings create 
 
a presumption of earning capacity.  The earnings are not synonymous 
 
with earning capacity and the presumption may be rebutted by 
 
evidence showing the earnings to be an unreliable indicator.  
 
 
 
Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 
 
224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 
 
565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 
 
261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
County, Thirty-fourth Biennial Report of the Industrial 
 
Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, 
 
sections 57.21 and 57.31.
 
 
 
Russell Weavill's work history includes a number of occupations 
 
and a number of different employers.  His career pattern is 
 
replete with changes.  It is probable that there will be 
 
further changes in his employment situation in the future.  The 
 
loss of his ability to make full use of his right arm is a very 
 
significant problem for him in view of his lack of formal 
 
education and his prior work history.  Thus far, he has not been 
 
subjected to re-entering the job market with a new employer in 
 
an impaired condition.  He has experienced no actual loss of earnings 
 
thus far because he has been able to remain employed by John 
 
Morrell and Co.  His actual earnings are a strong indication of 
 
earning capacity but his loss of physical capacity is also 
 
evidence of a loss of earning capacity.  The determination of 
 
industrial disability involves a balancing of actual wages, 
 
loss of physical capacity, formal education, work history, experience, 
 
and other factors.  When all the pertinent factors are considered 
 
in this case, it is determined that Russell Weavill has 
 
experienced a 20 percent loss of earning capacity and a 20 percent 
 
permanent partial disability within the provisions of Iowa Code 
 
section 85.34(2)(u).  This entitles him to receive 100 weeks of 
 
compensation for permanent partial disability.  
 
 
 
                             ORDER
 
 
 
IT IS THEREFORE ORDERED that defendants pay Russell T. Weavill one 
 
hundred (100) weeks of compensation for permanent partial 
 
disability at the stipulated rate of two hundred fifty and 03/100 
 
dollars ($250.03) per week payable commencing April 19, 1991, as 
 
stipulated.
 
 
 
It is further ordered that the entire amount of the award is past 
 
due and owing and shall be paid to the claimant in a lump sum 
 
with interest computed pursuant to section 85.30 from the date 
 
each payment came due until the date of actual payment.  
 
 
 
It is further ordered that the costs of this action are assessed 
 
against defendants.  Sixty-five ($65) shall be paid to claimant 
 
as reimbursement for his filing fee.  
 
 
 

 
 
 
 
 
 
 
It is further ordered that defendants file claim activity reports 
 
as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of July, 1993.
 
                     
 
                     
 
                                      ______________________________
 
                                          MICHAEL G. TRIER
 
                                      DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Gary L. Johansen
 
Attorney at Law
 
508 Davidson Bldg.
 
505-6th Street
 
Sioux City, Iowa  51101-1242
 
 
 
Mr. Thomas M. Plaza
 
Attorney at Law
 
PO Box 3086
 
Sioux City, Iowa  51101
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                                                1803.1
 
                                                Filed July 22, 1993
 
                                                Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RUSSELL T. WEAVILL, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 903186
 
            JOHN MORRELL & CO., 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE INS, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Shoulder injury which was surgically treated by repair of 
 
            torn rotator cuff, excision of distal clavicle and right 
 
            anterior acromioplasty was found to be an injury that was 
 
            not limited to the scheduled arm.  Compensation awarded 
 
            industrially.  Detailed analysis made of differences between 
 
            "arm" and "upper extremity" and of compensability of 
 
            injuries and disabilities associated with the shoulder 
 
            joint.  
 
            
 
 
            
 
          
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RUSSELL T. WEAVILL, 
 
                                               File No. 903186
 
                 Claimant, 
 
                      
 
            vs.                                   N U N C
 
                      
 
            JOHN MORRELL & CO.,                    P R O
 
                      
 
                 Employer,                        T U N C
 
                      
 
            and                                  O R D E R
 
                      
 
            NATIONAL UNION FIRE INS.,     
 
                      :
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            Upon reviewing the decision entered in this case it is 
 
            determined that a scrivener's error exists in the 13th line 
 
            of the first full paragraph found on page 7 of the decision.  
 
            As originally issued, that 13th line contains the following 
 
            statement:
 
            (The counterpart of current section 85.33).
 
            The reference to the statute is incorrect and the portion of 
 
            the decision should be and is hereby amended, nunc pro tunc, 
 
            to read as follows:
 
            (The counterpart of current section 85.34(3)).
 
            In all other respects, the decision as originally issued is 
 
            ratified and confirmed.
 
            Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
                                       ________________________________
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Gary L Johansen
 
            Attorney at Law
 
            508 Davidson Bldg
 
            505-6th St
 
            Sioux City IA 51101-1242
 
            
 
            Mr Thomas M Plaza
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Sioux City IA 51102-3086
 
            
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         CHERYL R. HOOTMAN,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 903234
 
         MERCY HOSPITAL,       
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         IOWA SMALL BUSINESS EMPLOYERS,  
 
                     
 
              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 
 
         November 29, 1994 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 March, 1994.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                    BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave. SW, Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. Gene R. LaSuer
 
         Ms. Becky Knutson
 
         Attorneys at Law
 
         666 Walnut, Ste 2500
 
         Des Moines, Iowa 50309-3993
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1402.30; 5-1402.40; 3002
 
                                         Filed March 9, 1994
 
                                         Byron K. Orton
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            CHERYL R. HOOTMAN,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 903234
 
            MERCY HOSPITAL,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            IOWA SMALL BUSINESS EMPLOYERS,  
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1402.30; 5-1402.40
 
            Claimant failed to carry the burden of proving that it was 
 
            probable that her pain complaints and disability resulted 
 
            from her employment.  
 
            
 
            3002
 
            There is a presumption that the natural children of an 
 
            injured person are dependents and that presumption prevails 
 
            until evidence to the contrary shows otherwise.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHERYL R HOOTMAN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 903234
 
            MERCY HOSPITAL,               :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA SMALL BUSINESS EMPLOYERS :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Cheryl 
 
            Hootman against her former employer, Mercy Medical Center, 
 
            based upon a stipulated injury of November 14, 1988.  The 
 
            principal dispute in the case turns upon determination of 
 
            the extent, nature and duration of disability which that 
 
            injury produced.  Claimant contends that she is permanently 
 
            and totally disabled and relies upon the odd-lot doctrine.  
 
            She also seeks payment of expenses of medical treatment 
 
            pursuant to section 85.27.  There is a dispute regarding the 
 
            rate of compensation revolving upon the claimant's marital 
 
            status and number of exemptions when applied to the 
 
            stipulated earnings of $228.01 per week.  She has been paid 
 
            27 6/7 weeks of benefits at the rate of $156.71 per week.  
 
            
 
                 The evidence in this case consists of testimony from 
 
            Cheryl Hootman and John Suter and jointly offered exhibits 1 
 
            through 30.  The case was heard at Cedar Rapids, Iowa, on 
 
            August 11, 1993.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Cheryl Hootman is a 46-year-old female who was injured 
 
            on November 11, 1988, while carrying a desk in the course of 
 
            her employment with Mercy Medical Center.  She had also been 
 
            injured on two other occasions while employed by Mercy but 
 
            returned to work following those incidents with no apparent 
 
            change in her overall physical condition.  Cheryl did not 
 
            resume employment following the November 14, 1988 injury, 
 
            and she has not resumed employment of any type since that 
 
            injury occurred.  She is now receiving social security 
 
            disability benefits based upon the condition of her back and 
 
            her psychological condition.
 
            
 
                 When injured on November 14, 1988, Cheryl was married 
 
            but separated from her husband.  She had one minor child at 
 

 
            
 
            Page   2
 
            
 
            
 
            that time.  From the record it is unclear but it appears 
 
            likely that the child was actually dependent upon her.
 
            
 
                 Cheryl has a history of back problems dating as far 
 
            back as 1973.  Those problems involve hospitalizations.  
 
            Cheryl also has a history of psychological disturbances, 
 
            including hospitalization which predates the injury in this 
 
            case.  
 
            
 
                 Following the injury in this case Cheryl received 
 
            conservative treatment under the direction of Orthopedic 
 
            Surgeon John S. Koch, M.D.  When deposed Dr. Koch expressed 
 
            the opinion that Cheryl had reached maximum medical 
 
            improvement by May 4, 1989, and that while she has permanent 
 
            impairment in her back, that it is not a result of her 
 
            employment at Mercy (exhibit 25, pages 24-28).  Dr. Koch 
 
            attributes her lack of a recovery to things other than 
 
            physical difficulties, in particular he indicates that 
 
            psychological problems or depression are the likely cause.  
 
            He stated that pain complaints commonly are a result of 
 
            depression and that depression is not necessarily the result 
 
            of pain (ex. 25, pp. 30-31).  
 
            
 
                 After Cheryl was released from treatment by Dr. Koch, 
 
            she entered into a course of treatment with Richard F. 
 
            Neiman, M.D., a neurologist.  Under his care and diagnostic 
 
            tests it was determined that she had a problem at the L4-5 
 
            level of her spine in the nature of a herniated disc.  
 
            Orthopedic Surgeon William Roberts, M.D., became involved in 
 
            claimant's care and eventually performed fusion surgery.  
 
            The fusion surgery has not had any appreciable effect as far 
 
            as relieving Cheryl's pain complaints.  It is well 
 
            documented in the record that she is afflicted with 
 
            degenerative disc disease which had its origin and was 
 
            symptomatic long prior to the time she was employed at 
 
            Mercy.  Dr. Neiman attributes Cheryl's back problems and 
 
            pain to the November 14, 1988 injury based only upon the 
 
            history which she has provided to him (ex. 9, p. 73).  Dr. 
 
            Roberts likewise attributes Cheryl's back problems to that 
 
            injury based upon the history provided to him.  When Dr. 
 
            Roberts was presented with claimant's prior history of back 
 
            problems and psychological difficulties he became unwilling 
 
            to attribute any portion of claimant's disability to her 
 
            employment at Mercy (ex. 10, pp. 36-44).
 
            
 
                 It is apparent that the outcome of this case is 
 
            dependent upon the weight given to the history which Cheryl 
 
            has provided to the physicians who have treated her.  The 
 
            fact that the surgery had no appreciable effect at improving 
 
            Cheryl's condition is an indication that the condition which 
 
            was treated by the surgery is not the condition responsible 
 
            for causing her pain complaints.  None of the diagnostic 
 
            tests which have been conducted have identified any 
 
            physiological cause or source for her pain complaints other 
 
            than degenerative disc disease and the disc problem treated 
 
            by the fusion surgery.  The only other cause suggested by 
 
            the evidence in this case is a psychological component.  The 
 
            undersigned is well convinced that Cheryl is not 
 

 
            
 
            Page   3
 
            
 
            
 
            intentionally malingering.  He is likewise fully convinced 
 
            that there is a psychological component to her pain 
 
            complaints regardless of what diagnosis is actually placed 
 
            upon that psychological component.  The record shows ample 
 
            sources of stress in Cheryl's life other than stress in her 
 
            workplace or stress resulting from the November 14, 1988 
 
            injury.  It is not possible to attribute her psychological 
 
            problems and symptoms to her employment at Mercy.  Cheryl's 
 
            statements regarding the nature, onset, severity and 
 
            duration of pain are not reliable indicators of the severity 
 
            of any injury she has sustained.  Cheryl's prior 
 
            hospitalizations for back problems do not appear to have 
 
            resulted from any significant trauma.
 
            
 
                 When the record in this case is viewed as a whole, 
 
            there is certainly a possibility that Cheryl's back 
 
            complaints currently afflicting her, were somehow caused by 
 
            her employment at Mercy Medical Center.  The evidence is not 
 
            sufficiently strong, however, to show that possibility to be 
 
            a probability.  When her history of previous back problems 
 
            and psychological difficulties is considered in light of the 
 
            nature of her trauma, the lack of any objective medical 
 
            diagnosis which identifies a physiological change 
 
            attributable to the injury which is the source of her pain, 
 
            the lack of any significant recovery from conservative care 
 
            or from surgical treatment there is strong reason to believe 
 
            that something other than what happened at Mercy Medical 
 
            Center is responsible for her complaints of disabling pain.  
 
            The greater likelihood in this case is that her pain 
 
            complaints result from a combination of her degenerative 
 
            joint disease and her psychological condition, neither of 
 
            which were caused or significantly aggravated by her 
 
            employment at Mercy Medical Center.  A temporary aggravation 
 
            of the degenerative joint disease is well established in the 
 
            record but a permanent aggravation is not.  
 
            
 
                 The assessment of this case made by Dr. Koch is 
 
            therefore accepted as being correct where it differs from 
 
            that made by Doctors Neiman or Roberts.  Dr. Koch personally 
 
            treated Cheryl immediately following her injury.  He 
 
            observed her initial efforts at recovery.  He observed the 
 
            lack of neurological deficit and the existence of complaints 
 
            which far outweighed any objective medical findings.  
 
            
 
                 It is therefore found that Cheryl Hootman's injury of 
 
            November 11, 1988, did not cause any permanent disability 
 
            and that her recovery from that injury was sufficiently 
 
            complete by May 4, 1989, that she was medically capable of 
 
            returning to employment substantially similar to that in 
 
            which she was engaged at the time of injury but for the 
 
            interaction of the psychological component of her condition. 
 
            
 
                 Any disability of any type which afflicted Cheryl 
 
            Hootman subsequent to May 4, 1989 was not proximately caused 
 
            by her employment at Mercy Medical Center.
 
            
 
                 Any medical care which Cheryl Hootman received 
 
            subsequent to May 5, 1989 has not been shown by a 
 
            preponderance of the evidence to have been proximately 
 

 
            
 
            Page   4
 
            
 
            
 
            caused by her employment at Mercy Medical Center.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Cheryl Hootman is entitled to recover weekly 
 
            compensation for temporary total disability from November 
 
            14, 1988 through May 4, 1989, a span of 24 4/7 weeks.
 
            
 
                 Cheryl Hootman's rate of compensation should be based 
 
            on her being married with three exemptions.  She was married 
 
            despite the fact that she was separated.  The marital 
 
            relationship exists until it is terminated.  The record in 
 
            this case does not clearly show that Cheryl was not entitled 
 
            to claim her minor child as a dependent.  The presumption of 
 
            dependency prevails.  The rate of compensation in this case 
 
            is therefore $156.71 per week, the rate at which voluntary 
 
            payments were paid.
 
            
 
                 In view of the findings of fact previously made, Cheryl 
 
            is not entitled to recover any of the medical expenses for 
 
            which she seeks payment.
 
            
 
                 In view of the fact that Cheryl has received 27 6/7 
 
            weeks of compensation at the correct weekly benefit rate, 
 
            she has already been paid all to which she is entitled under 
 
            the record made in this case.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that Cheryl Hootman take 
 
            nothing further from this proceeding.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Thomas Wertz
 
            Attorney at Law
 
            4089 21st Ave SW STE 114
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. Gene R. La Suer
 
            Ms. Becky Knutson
 
            Attorneys at Law
 
            666 Walnut STE 2500
 
            Des Moines, Iowa  50309-3993
 
            
 
                  
 
            
 
 
            
 
            
 
            
 
            
 
                                             51402.30 51402.40 3002
 
                                             Filed November 29, 1993
 
                                             Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHERYL R HOOTMAN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 903234
 
            MERCY HOSPITAL,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            IOWA SMALL BUSINESS EMPLOYERS 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51402.30 51402.40
 
            Claimant failed to carry the burden of proving that it was 
 
            probable that her pain complaints and disability resulted 
 
            from her employment.  
 
            
 
            3002
 
            There is a presumption that the natural children of an 
 
            injured person are dependents and that presumption prevails 
 
            until evidence to the contrary shows otherwise.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         CHERYL R. HOOTMAN,    
 
                     
 
              Claimant,   
 
                                                File No. 903234
 
         vs.         
 
                                                  O R D E R 
 
         MERCY HOSPITAL,       
 
                                                   N U N C
 
              Employer,  
 
                                                    P R O
 
         and         
 
                                                   T U N C
 
         IOWA SMALL BUSINESS EMPLOYERS,  
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The first paragraph of the appeal decision filed March 9, 1994 is 
 
         hereby amended to read:
 
         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 
 
         November 29, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Signed and filed this ____ day of April, 1994.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave. SW, Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. Gene R. LaSuer
 
         Ms. Becky Knutson
 
         Attorneys at Law
 
         666 Walnut, Ste 2500
 
         Des Moines, Iowa 50309-3993
 
         
 
 
 
 
 
 
 
 
 
 
 
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
               
 
         GERALD R. SKILLETT, 
 
                                           File No. 903387
 
          Claimant, 
 
                                        A R B I T R A T I O N
 
         vs.        
 
                                           D E C I S I O N
 
         ALUMINUM COMPANY OF AMERICA,  
 
               
 
          Employer, 
 
          Self-Insured,  
 
          Defendant.     
 
         ___________________________________________________________
 
                           STATEMENT OF THE CASE
 
           
 
           This is a proceeding in arbitration upon the petition 
 
         of claimant, Gerald Skillett, against his self-insured 
 
         employer, Aluminum Company of America, defendant.  The case 
 
         was heard on February 15, 1994 in Davenport, Iowa.  The 
 
         record consists of the testimony of claimant.  The record 
 
         also consists of the testimony of Harvey Dittmer, supervisor 
 
         of the maintenance unit; Sharon Hanson, supervisor of the 
 
         storeroom unit; and, Margaret Kundel, R.N., plant nurse.  
 
         The record also consists of claimant's exhibits A, B, C and 
 
         D; defendant's exhibits A-H; and joint exhibits 1-14.
 
         
 
                                  ISSUE
 
           
 
           The sole issue to be determined is the nature and 
 
         extent of permanent partial disability benefits.
 
         
 
                            FINDINGS OF FACT 
 
           
 
           The deputy, having heard the testimony and considered 
 
         all of the evidence, finds:
 
           
 
           Claimant is 48 years old.  He is married with two adult 
 
         children.  However, on the date of his work injury, claimant 
 
         had two dependents.  He graduated from United Township High 
 
         School in 1963.
 
           
 
           For nearly the duration of claimant's work experience, 
 
         he has been employed at ALCOA (Aluminum Company of America).  
 
         He commenced his employment on November 17, 1964.  During 
 
         the course of his employment, claimant has held a variety of 
 
         jobs.  In 1981 he bid into the job of brick mason.  
 
         Primarily, claimant rebuilt 
 
         the linings of furnaces.  After a two year training program, 
 
         claimant obtained the status of a journeyman.  Claimant's 
 
         job description included performing the following tasks:
 
           
 
           Duties and Working Procedure:
 
           
 

 
 
 
 
 
 
 
             1. Mixes mortar; mixes and places castable mixes 
 
                and aggregates.
 
           
 
             2. Chips, drills and saw, materials.
 
           
 
             3. Cleans tools and equipment.
 
           
 
             4. Secures supplies.
 
           
 
             5. Removes old work and disposes of waste 
 
           materials.
 
           
 
             6. Operates various saws to make simple and 
 
                repetitive cuts.
 
           
 
             7. Operates electric drill to mix mortar.
 
           
 
             8. Records amount of time used.
 
           
 
             9. Operates industrial vehicles to move 
 
           material, employees, and supplies.
 
           
 
            10. Move and dump filter units, clean filter 
 
                units, and coat spinners.
 
         
 
         (Joint Exhibit 13)
 
           
 
           The parties stipulated that claimant sustained a work-
 
         related injury.  At the time, claimant was replacing 
 
         deteriorated floor brick in the skim house.  He used a 
 
         chipping hammer and an air operated gun to break up the 
 
         floor bricks.  After the bricks were broken, claimant 
 
         shoveled the pieces and threw them into a tub.  While he was 
 
         shoveling in a bent position, claimant experienced a sharp 
 
         pain in his lower back and the pain traveled down into his 
 
         groin area.  Despite his level of pain, claimant completed 
 
         his shift.  He reported the work injury to the proper 
 
         personnel on the following day.
 
           
 
           Claimant sought medical attention at the emergency room 
 
         at St. Luke's Hospital (Jt. Ex. 4, page 16 & 17).  Jesse 
 
         Deck, D.O., examined claimant and ordered x-rays of 
 
         claimant's spine (Jt. Ex. 4, p. 16).  The CT scan evidenced 
 
         a degenerative narrowing of the interspace between L4 and L5 
 
         (Jt. Ex. 4, p. 30).  Dr. Deck referred claimant to a 
 
         specialist in orthopedics.
 
           
 
           On December 2, 1988, Robert Milas, M.D., examined and 
 
         evaluated claimant for low back pain.  The orthopedic 
 
         physician opined in his report of December 5, 1988:
 
           
 
              Neurological examination reveals cranial nerves 
 
           II to XII to be intact.  Examination of the 
 
           patient's strength reveals his strength to be 
 
           symmetrical.  Deep tendon reflexes are 1+ and 
 
           symmetrical.  There are no pathological reflexes 
 
           evident.  Straight leg raising is limited to 80 
 
           degrees on the left and 40 degrees on the right.  
 
           There is marked lumbar paravertebral muscle spasm 
 
           with marked limitation of lumbar motion in all 
 
           planes.  The patient ambulates with an obvious 
 
           pelvic tilt.
 
           
 
              I reviewed his x-rays of the lumbar spine which 
 
           show significant narrowing of the disc space at 
 
           the L4-L5 level.  A CT scan of the lumbar canal 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
           appears to show a central calcified disc at the 
 
           L4-L5 level which extends toward the right.
 
           
 
              My impression at this time is that of a 
 
           herniated lumbar disc at the L4-L5 level with 
 
           resultant radiculopathy.
 
           
 
              The patient was instructed to remain on bed 
 
           rest for a one week period of time.  He is to use 
 
           Empirin #4 on a p.r.n. basis for discomfort.  The 
 
           patient is also to use a bulk laxative on a daily 
 
           basis.
 
         
 
         (Jt. Ex. 4, p. 16 & 17)
 
           
 
           Dr. Milas continued to treat claimant conservatively. 
 
         Physical therapy was prescribed (Jt. Ex. 4, p. 38).  After 
 
         conservative treatment, claimant's condition improved (Jt. 
 
         Ex. 4, p. 21).  The treating orthopedist released claimant 
 
         to return to work effective February 6, 1989 (Jt. Ex. 4, p. 
 
         22).
 
           
 
           One year following the work injury, Dr. Milas examined 
 
         and evaluated claimant for purposes of providing a permanent 
 
         impairment rating.  The physician indicated:
 
           
 
              On examination the patient is an alert and 
 
           oriented 43 year old white male who does appear to 
 
           be in mild discomfort.  The patient's strength and 
 
           deep tendon reflexes are quite symmetrical.  
 
           Lumbar motion is moderately restricted in all 
 
           planes.  The patient ambulates with a mild pelvic 
 
           tilt.
 
           
 
              The impression at this time is that of a 
 
           calcified herniated disc at the L4, L5 level.
 
           
 
              Utilizing the AMA Guides to the Evaluation of 
 
           Permanent Impairment, Third Edition, I would 
 
           calculate a permanent partial impairment of the 
 
           whole man as follows:
 
           
 
           Permanent Impairment Evaluation Continued:
 
           
 
              There would be a 7% permanent partial 
 
           impairment of the whole person for an unoperated 
 
           herniated lumbar disc, associated with chronic 
 
           recurrent symptoms greater than six months in 
 
           duration.  There would be a 4% impairment of the 
 
           whole person for limitation of lumbar flexion, a 
 
           3% impairment of the whole person for limitation 
 
           of lumbar extension, a 2% impairment of the whole 
 
           person for limitation of right lateral flexion, 
 
           and a 2% impairment of the whole person for 
 
           limitation of left lateral flexion.
 
           
 
              This would amount to an 18% permanent partial 
 
           impairment of the whole person.
 
           
 
              I hope that this answers the questions you have 
 
           regarding this patient.  I do not feel that there 
 
           is a significant likelihood of improvement in the 
 
           future, nor do I feel that further therapy would 
 
           continue to improve the patient's status.
 
         
 
         (Jt. Ex. 4, pp. 23 & 24)
 

 
 
 
 
 
 
 
 
 
 
 
 
 
           
 
           Dr. Milas later refined his expert opinion in a report 
 
         he sent to claimant's attorney on June 22, 1993.  Dr. Milas 
 
         opined:
 
           
 
              As you know Mr. Skillet has a known herniated 
 
           lumbar disc with residual symptoms for which I 
 
           provided a disability rating in 1989.  Mr. 
 
           Skillett's disc derangement will remain permanent 
 
           in nature.  While he may have periods of relief of 
 
           symptoms he also will have periods of exacerbation 
 
           of his symptoms.  I do not feel the patient will 
 
           ever reach the state where he is pain free.  With 
 
           that in mind I do feel the patient needs to 
 
           observe appropriate precautions at his place of 
 
           employment for his entire life.  These would 
 
           include a 25# weight lifting restriction as well 
 
           as restrictions prohibiting repetitive bending, 
 
           stooping and twisting.
 
         
 
         (Jt. Ex. 4, p. 26)
 

 
 
 
 
 
 
 
           
 
           In November of 1993, claimant's MRI revealed:
 
           
 
           IMPRESSION:  Degenerative disc disease is seen at 
 
           the L4-5 level with central and rightward 
 
           posterior spur formation from the inferior end 
 
           plate of L4 with associated disc bulging and focal 
 
           eccentric disc bulging into the inferior aspect of 
 
           the right neural foramen at L4-5.  While I cannot 
 
           identify direct encroachment on the exiting [sic] 
 
           nerve roots here, this spur or the disc bulging 
 
           may be the etiology of the patient's right-sided 
 
           leg pain.  Correlation with clinical findings is 
 
           required.  Mild degenerative change is seen in the 
 
           L3-4 and L5-S1 discs with no other significant 
 
           abnormality otherwise identified.
 
         
 
         (Jt. Ex. 4, p. 34)
 
           
 
           Claimant sought and obtained an examination and an 
 
         evaluation from Dennis Miller, M.D., an orthopedic surgeon.  
 
         The physician opined:
 
           
 
           He walks with an entirely normal gait.  There are 
 
           no scars on his back.  He has no list.  He can 
 
           walk on his tiptoes and on his heels without any 
 
           difficulty.  I didn't think there was any 
 
           paravertebral muscle spasm.  There was no obvious 
 
           deformity of his lower back.  He was able to reach 
 
           within 12 inches of the floor.  His back stretch-
 
           out measured 4 1/2 inches which is within normal 
 
           range.  He had lateral bending to 20o bilaterally.  
 
           His straight leg raising tests were entirely 
 
           normal.  He had normal deep tendon reflexes at 
 
           both knees and both ankles.  There was no 
 
           detectable muscle weakness, specifically 
 
           dorsiflexors of the foot and great toe.  There was 
 
           no sensory loss.
 
           
 
              RADIOGRAPHS of the lumbosacral spine dated 12-
 
           1-88 made at St. Luke's Hospital in multiple 
 
           projections were available for review.  These 
 
           films demonstrate significant narrowing of the L4-
 
           5 intervertebral disc space with sclerosis of the 
 
           adjacent vertebral bodies, a vacuum sign in the 
 
           disc space, and calcification adjacent to the 
 
           posterior margin of the lower portion of L4.  A CT 
 
           scan of the lumbar spine done at St. Luke's 
 
           Hospital dated 12-1-88 was also available for 
 
           review.  This study also confirms the degeneration 
 
           at the L4-5 disc space with some hypertrophy of 
 
           the facets at that level.  Again, there is 
 
           calcification or actually ossification at the 
 
           posterior margin of L4.  I think this is above the 
 
           disc space and do not think this represents 
 
           calcified disc material.  The study was otherwise 
 
           within normal limits.
 
           
 
              I believe that Mr. Skillett sustained an acute 
 
           lumbosacral strain, superimposed on pre-existing 
 
           degenerative disc disease at L4-5.  The 
 
           degenerative changes and calcification obviously 
 
           pre-existed the injury of 11-30-90.
 
           
 
              At the present time, Mr. Skillett does have 
 
           permanent impairment of this lumbar spine.  Using 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
           the AMA Guides to Permanent Impairment, Third 
 
           Edition, it is appropriate to assign 7% impairment 
 
           to the degenerative changes noted 
 
           radiographically.  I think he has an additional 
 
           total of 6% impairment based on limited range of 
 
           motion for a total of 13% impairment of the body 
 
           as a whole.
 
         
 
         (Jt. Ex. 2, pp. 7 & 8)
 
           
 
           Dr. Miller revised his opinion in his medical report of 
 
         November 12, 1990.  He opined:
 
           
 
              You are correct that there is an error in the 
 
           last paragraph on the second page.  It should be 
 
           corrected to "pre-existed the injury of 11-30-88".
 
           
 
              The radiograph findings of the degenerative 
 
           disc disease at L4-5 with hypertrophy of the 
 
           facet, calcification and/or ossification of the 
 
           posterior margin of L4 were present on the films 
 
           dated 12-1-88.  These changes, without question, 
 
           predated the injury of 11-30-88.  The changes were 
 
           not apparent on films made in 1981 following a 
 
           back injury and a fall of six feet.  I believe 
 
           that the 7% impairment contributed by the 
 
           degenerative changes did pre-exist the 1988 injury 
 
           and, thus, it is appropriate to assign 6% 
 
           impairment of the body as a whole as causally 
 
           related to the injury of 11-30-88.
 
           
 
              I hope these additional comments clarify my 
 
           previous report.
 
         
 
         (Defendant's Ex. G)
 
           
 
           Claimant worked under certain work restrictions (Jt. 
 
         Ex. 9).  The restrictions were periodically reviewed by 
 
         Forrest W. Smith, M.D., company physician (Def. Ex. H and 
 
         Jt. Ex. 12).  From 1989 through 1993, claimant's 
 
         restrictions were:
 
           
 
           -Lifting should be limited to 75 pounds.
 
           
 
           -Pulling or pushing should be limited to objects 
 
           within the weight lift limit.
 
           
 
           -Limited stooping, bending, squatting or twisting 
 
           is permissible providing the weight being handled 
 
           is within the weight lift limit.
 
           
 
           -Not to work in semi-stooped position for long 
 
           periods.
 
           
 
           -NOT TO OPERATE THE HEAVY REFRACTORY SPRAYER
 
         
 
         (Jt. Ex. 9 and Def. Ex. H)
 
           
 
           As of the date of the hearing, claimant's restrictions 
 
         were continuing.  Dr. Smith diagnosed claimant as being 
 
         "episodically symptomatic" (Deposition, p. 15).  Dr. Smith 
 
         testified that claimant should not be placed in "a hostile 
 
         environment with excessive lifting" (Dep., p. 17).  The 
 
         physician did not believe changes in claimant's restrictions 
 
         could be made (Dep., p. 49).
 
           
 

 
 
 
 
 
 
 
 
 
 
 
           Claimant returned to work as a brick mason.  As 
 
         aforementioned, his activities were restricted.  On August 
 
         30, 1990, claimant completed an application for an inter-
 
         departmental transfer (Jt. Ex. 12, p. 73).  He desired a 
 
         transfer to the storeroom department.  The ramifications of 
 
         the transfer were listed on the face of the application form 
 
         (Jt. Ex. 12, p. 73).  The actual transfer occurred in 
 
         January of 1991.
 
           
 
           In addition to suffering certain consequences of his 
 
         transfer, claimant's pay grade level slipped from a paygrade 
 
         23 to a paygrade 11.  This resulted in a loss of actual 
 
         hourly wages.  Claimant testified there was a $1.30 per hour 
 
         loss.  Claimant also testified that the loss would reduce 
 
         the amount of his monthly pension.
 
           
 
           Claimant testified regarding the amount of overtime 
 
         hours he worked both before and after the work injury.  He 
 
         testified that he worked less overtime following his work 
 
         injury than he had worked before the injury.  It is not 
 
         known how many less overtime hours were worked because of 
 
         claimant's physical condition or how many less were due to 
 
         other reasons such as out of town athletic events.
 
           
 
           Claimant's exhibit D is a compilation of the average 
 
         number of overtime hours worked per week by claimant and by 
 
         co-worker John Musal.  When claimant's average is compared 
 
         to Mr. Musal's average, for the years provided, it appears 
 
         claimant worked 1.52 hours per week less than did Mr. Musal.
 
           
 
           Claimant indicated during the hearing that since his 
 
         transfer, he had been primarily driving a small fork lift 
 
         truck.  According to his testimony, claimant had been 
 
         engaged in the delivery of materials to the various 
 
         departments.  Claimant testified that the job of fork lift 
 
         truck driver was physically 
 
         less demanding than was the job of brick mason.  Since his 
 
         transfer, claimant had not visited the company medical 
 
         department with back complaints.  He testified during cross-
 
         examination that since his transfer, he had always been able 
 
         to perform his assigned tasks.
 
         
 
                          CONCLUSIONS OF LAW
 
           
 
           The party who would suffer a loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa RR. App. P. (14)(f).
 
           
 
           Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to 
 
         the injured employee's age, education, qualifications, expe
 
         rience and inability to engage in employment for which 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 
 
         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.
 
           
 
           In the case at hand, claimant is still working under 
 
         physician imposed physical restrictions.  He has transferred 
 
         to a light duty job which pays less than what he had been 
 
         earning before the work injury.  Claimant has been able to 
 
         satisfactorily complete the assigned duties of the light 
 
         duty position.  His job is secure.  He is motivated to work 
 
         and to work overtime hours.  However, if he seeks other 
 
         employment, it is doubtful he will be able to secure the 
 
         same position at the same rate of pay.
 
           
 
           Claimant has experienced an actual loss of earnings as 
 
         a result of his work injury.  He now makes at least $1.30 
 
         less per hour than he did prior to work injury.  The 
 
         transfer resulted in a loss of hourly earnings.
 
           
 
           Claimant has the option of retiring effective January 
 
         1, 1995, although he has no immediate plans to retire.  
 
         Claimant's pension is not as lucrative as it would have been 
 
         had claimant remained as a brick mason.  His pension is 
 
         calculated according to his last ten years of employment.  
 
         It is easy to see that if he earns less money, his pension 
 
         will be less than the pension of a brick mason.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
           
 
           Therefore, in light of all of the above, it is the 
 
         determination of the undersigned that claimant has sustained 
 
         a permanent partial disability in the amount of 15 percent.  
 
         He is entitled to 75 weeks of permanent partial disability 
 
         benefits at the stipulated rate of $415.21 per week and 
 
         commencing on February 6, 1989.
 
         
 
                                 ORDER
 
           
 
           Defendant shall pay unto claimant seventy-five (75) 
 
         weeks of permanent partial disability benefits at the 
 
         stipulated rate of four hundred fifteen and 21/l00 dollars 
 
         ($415.21) per week and commencing on February 6, 1989.
 
           
 
           Defendant shall take credit for all permanent partial 
 
         disability benefits previously paid to claimant.
 
           
 
           Accrued benefits are to be paid in a lump sum together 
 
         with statutory interest at the rate of ten percent (10%) per 
 
         year.
 
           
 
           Costs are taxed to defendant pursuant to rule 343 IAC 
 
         4.33.
 
           
 
           Defendant shall file a claim activity report as 
 
         requested by this division and pursuant to rule 343 IAC 3.1.
 
         
 
           Signed and filed this ____ day of November, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                  ______________________________     
 
                                  MICHELLE A. McGOVERN
 
                                  DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E 6th St
 
         PO Box 339
 
         Davenport  IA  52805-0339
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         PO Box 339
 
         Davenport  IA  52805-0339
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                      5-1803
 
                                      Filed November 29, 1994
 
                                      MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
               
 
         GERALD R. SKILLETT, 
 
                                           File No. 903387
 
          Claimant, 
 
                                        A R B I T R A T I O N
 
         vs.        
 
                                           D E C I S I O N
 
         ALUMINUM COMPANY OF AMERICA,  
 
               
 
          Employer, 
 
          Self-Insured,  
 
          Defendant.     
 
         ___________________________________________________________
 
         5-1803
 
         
 
         Claimant was awarded a 15 percent permanent partial 
 
         disability as a result of a work injury to his back.  
 
         Claimant had returned to work but he had transferred to a 
 
         job which was not as physically demanding as the job he had 
 
         held prior to his work injury.  Claimant's actual hourly 
 
         wage had decreased.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
CONNIE KOPF,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                            File Nos. 903450 & 1026712
 
HON INDUSTRIES,    
 
                             A R B I T R A T I O N
 
     Employer, 
 
                               D E C I S I O N
 
and       
 
          
 
THE TRAVELERS INSURANCE CO., 
 
          
 
     Insurance Carrier,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA    
 
          
 
     Defendants.    
 
___________________________________________________________
 
                  STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by the claimant, Connie 
 
Kopf, as the result of alleged injuries occurring on November 22, 1988 
 
in file number 903450 which involve both upper extremities.  A second 
 
injury is alleged to have occurred on August 30, 1989 involving the 
 
left upper extremity in file number 1026712.  Claimant is requesting 
 
permanent disability benefits from both the employer and the Second 
 
Injury Fund with respect to the August 30, 1989 injury.  The employer 
 
admitted liability for the 1988 injury and denied liability for the 
 
1989 injury.  Numerous issues are presented in both file numbers.   
 
 
 
This case was heard and fully submitted at Davenport, Iowa on December 
 
13, 1994.  The record in the proceeding consists of claimant exhibits 1 
 
through 4, employer exhibits A through D, Second Injury Fund of Iowa 
 
exhibits A1 and joint exhibits 1 through 3; and testimony from Connie 
 
Kopf, Ronald Kopf and Austin Cole.  
 
 
 
Claimant was represented by James Shipman and Chad Von Kampen, 
 
Attorneys at Law.  The employer and insurance carrier were represented 
 
by Vicki L. Seeck, Attorney at Law.  The Second Injury Fund of Iowa was 
 
represented by Joanne Moeller, Attorney at Law and Assistant Attorney 
 
General.  
 
 
 
                             ISSUES
 
 
 
The issues presented for determination in file number 903450 are as 
 
follows:
 
 
 
1.  Whether the injury of November 22, 1988 is a cause of permanent 
 
disability and the nature and extent thereof;
 
 
 
2.  The period of temporary disability applicable to the November 22, 
 
1988 injury;
 
 
 
3.  The commencement date for permanent disability; and
 
 
 
4.  Whether claimant is entitled to three exemptions for the rate of 
 
compensation calculation.
 
 
 
The issues presented for determination in file number 1026712 are as 
 
follows:
 

 
 
 
 
 
 
 
1.  Whether claimant sustained an injury on August 30, 1989, arising 
 
out of and in the course of employment with the employer;
 
 
 
2.  Whether the injury is a cause of permanent disability and the 
 
nature and extent thereof;
 
 
 
3.  Whether the injury is a cause of temporary disability and the 
 
extent thereof;
 
 
 
4.  The commencement date for permanent disability;
 
 
 
5.  Whether claimant is entitled to three exemptions for the rate of 
 
compensation calculation;
 
 
 
6.  Whether the claim is barred by the time limitation provisions of 
 
Iowa Code sections 85.23 and 85.26; and
 
 
 
7.  Whether claimant is entitled to Second Injury Fund of Iowa 
 
permanent disability benefits.
 
 
 
                       FINDINGS OF FACT
 
 
 
Having heard the testimony of the witnesses and having considered all 
 
of the evidence in the record, the deputy industrial commissioner 
 
finds:
 
 
 
Claimant, Connie Kopf, began work for the employer Hon Industries in 
 
November of 1977.  Claimant was primarily a production worker 
 
performing services which are best described as assembly line work in 
 
the manufacture of office furniture.  Claimant primarily worked as an 
 
upholsterer.  This work was extremely hand intensive.  Claimant was a 
 
right hand dominate individual who suffered bilateral hand and upper 
 
extremity pain in the months proceeding November of 1988.  Claimant 
 
sought treatment for the upper extremity pain on or about November 28, 
 
1988.  She was diagnosed as having bilateral carpal tunnel syndrome 
 
cause by the repetitive motion work for the employer Hon Industries.  
 
Claimant was treated by a significant number of medical and 
 
chiropractor specialists.  Conservative treatment did not provide 
 
significant relief and surgery was eventually performed on the right 
 
wrist on February 1, 1990.  Claimant had carpal tunnel surgery on the 
 
left wrist on April 10, 1990.  
 
 
 
Claimant alleged a second injury to the left hand on August 30, 1989.  
 
Mitchell Mally, D.C., opined on December 9, 1992 that the left hand did 
 
not become disabling until 1989.  
 
 
 
William Whitmore, M.D., an orthopedic surgeon, opined on March 22, 1993 
 
that the left carpal tunnel syndrome did not become progressively worse 
 
based upon EMG testings from 1988 to 1989 and that there was no new 
 
injury in the year 1989 with respect to that hand (Second Injury Fund 
 
Exhibit A1).
 
 
 
Richard F. Neiman, M.D., a neurologist, opined on April 19, 1993 that 
 
the left upper extremity suffered an increase in permanent disability 
 
as a result of work in 1989 (Claimant Exhibit 1, page 43).  
 
 
 
The question becomes whether claimant sustained a new injury on or 
 
about August 30, 1989 with respect to the left upper extremity or 
 
whether the left upper extremity impairment is actually a direct result 
 
of a cumulative trauma injury beginning November 28, 1988.  It is held 
 
that the November 28, 1988 left upper extremity injury is essentially 
 
identical to the injury alleged to have occurred on August 30, 1989.  
 
 
 
Claimant had identical symptoms in 1988 as she expressed in 1989 as 
 
demonstrated by Dr. Whitmore's exam of December 20, 1988, where 
 
numbness and tingling in the tips of the left long and index fingers 
 
was noted (Joint Exhibit 2, page 1).  Claimant's symptoms remained 
 
almost static which demonstrates that it was the same area of the hand 
 
being affected by the repetitive trauma.  While claimant's symptoms may 
 
have grown progressively worse in the left hand due to additional work 
 
for the employer it does not equate to a separate new and distinct 
 
injury.  Therefore, the left hand complaints should not be divided into 
 
two injury dates.  Claimant has failed to establish by a preponderance 
 
of the evidence that a new injury to the left hand was incurred on 
 
August 30, 1989.  
 
 
 
Claimant was issued impairment ratings by T. L. Von Gillern, M.D., the 
 
treating surgeon.  Dr. Von Gillern opined on July 10, 1991 that the 
 
right upper extremity was 8 percent impaired and the left upper 
 
extremity was 6 percent impaired equating to 8 percent impairment of 
 
the whole person as a result of the bilateral carpal tunnel syndrome 
 

 
 
 
 
 
 
 
incurred at Hon Industries (Employer Exhibit C, page 1).  
 
 
 
On April 19, 1993, Dr. Neiman opined that claimant sustained 15 percent 
 
impairment to the right upper extremity and 15 percent impairment to 
 
the left upper extremity as a result of the bilateral carpal tunnel 
 
syndrome which equates to 17 percent impairment of the body as a whole 
 
when using the AMA Guides.  
 
 
 
Claimant has significant work restrictions which inhibit her ability to 
 
perform the upholstering work that she was performing in 1988.  
 
 
 
Claimant has lost significant function in her hands as demonstrated by 
 
the difficulty in performing recreational activities and the 
 
restriction in her work activities with Hon Industries.  It is found 
 
that the opinion of Dr. Neiman is entitled to greater weight both 
 
because it is more recent than the opinion of Dr. Von Gillern and 
 
because of the significant work restrictions placed on claimant as a 
 
result of the bilateral carpal tunnel syndrome.  
 
 
 
Claimant first lost time from work as a result of the November 22, 1988 
 
injury on December 5, 1988.  The healing period was intermittent in 
 
nature.  All healing period benefits were attributable to the November 
 
1988 injury as demonstrated by the medical records.  Claimant also 
 
incurred temporary partial disability in late 1990 and through the 
 
first half of 1991.  Since no injury in 1989 was established the 
 
healing period benefits and temporary partial disability benefits must 
 
be found to be causally connected to the November 1988 injury in file 
 
number 903450.  
 
 
 
Claimant alleged entitlement to three exemptions with respect to the 
 
rate of compensation calculation.  In November of 1988 claimant's 
 
daughter, age 18, was living with her and her husband.  The daughter 
 
was employed but was used as a tax deduction for the claimant's 1988 
 
tax returns.  The daughter was not in school at the time of the injury 
 
but was partially dependent upon claimant.  
 
 
 
Claimant has incurred some psychological difficulties surrounding the 
 
hand injuries and persistent pain.  There was an indication in the 
 
medical records that certain psychological deficits and stress related 
 
problems needed to be addressed as part of the treatment program (Empl. 
 
Ex. A1).  However, the medical records failed to clearly establish that 
 
the psychological difficulties were permanent in nature and a cause of 
 
permanent disability.  Therefore, it is found that claimant failed to 
 
establish by a preponderance of the evidence that permanent disability 
 
resulted from psychological and stress related difficulties.  
 
reasoning and conclusions of law
 
 
 
The first issue to be addressed in file number 1026712 is whether 
 
claimant sustained an injury on August 30, 1989, arising out of and in 
 
the course of employment with the employer.  
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
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).
 
 
 
A personal injury contemplated by the workers' compensation law means 
 
an injury, the impairment of health or a disease resulting from an 
 
injury which comes about, not through the natural building up and 
 
tearing down of the human body, but because of trauma.  The injury must 
 
be something which acts extraneously to the natural processes of nature 
 
and thereby impairs the health, interrupts or otherwise destroys or 
 

 
 
 
 
 
 
 
damages a part or all of the body.  Although many injuries have a 
 
traumatic onset, there is no requirement for a special incident or an 
 
unusual occurrence.  Injuries which result from cumulative trauma are 
 
compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
(1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. 
 
Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An 
 
occupational disease covered by chapter 85A is specifically excluded 
 
from the definition of personal injury.  Iowa Code section 85.61(5); 
 
Iowa Code section 85A.8.
 
 
 
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).
 
 
 
It is held that claimant has failed to establish an injury to the left 
 
hand or upper extremity occurring on August 30, 1989 in file number 
 
1026712.  The symptoms alleged in 1988 were clearly the same symptoms 
 
alleged in August of 1989 with respect to the left upper extremity.  
 
The injury was an ongoing and progressive problem with respect to the 
 
left upper extremity.  No new disease process or body part injury 
 
occurred in August of 1989.  To the contrary, it was an identical 
 
problem which progressively become worse.  Therefore, it is held that 
 
only one injury occurred to the left upper extremity and it began in 
 
November of 1988.  Claimant shall take nothing from file number 
 
1026712.  Since this issue is dispositive of all issues in that 
 
particular file number further discussion is unnecessary.
 
 
 
The first issue to be discussed in file number 903450 is whether the 
 
injury of November 22, 1988 is a cause of permanent disability and the 
 
nature and extent thereof.  
 
 
 
Benefits for permanent partial disability of two members caused by a 
 
single accident is a scheduled benefit under section 85.34(2)(s); the 
 
degree of disability must be computed on a functional basis with a 
 
maximum benefit entitlement of 500 weeks.  Simbro v. Delong's 
 
Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
 
 
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).
 
It is held that claimant sustained 17 percent permanent partial 
 
disability to the body as a whole pursuant to Iowa Code section 
 
85.34(2)(s).  Having previously found that the November 1988 injury is 
 
bilateral and simultaneous it follows that the rating must be to the 
 
body as a whole based upon the combined disability of the two hands.  
 
As previously stated, the opinion of Dr. Neiman is given greater weight 
 
due to its date of preparation and correlation to the significant work 
 
restrictions.
 
 
 
Claimant requested industrial disability based upon psychological 
 
involvement.  While claimant did establish that there was a degree of 
 
psychological and stress related problems she failed to establish that 
 
those problems resulted in permanent disability.  Therefore, industrial 
 
disability need not be addressed.
 
 
 
The next issue is the causal connection of the stipulated healing 
 
periods.
 
 
 
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).
 
 
 
The parties presented the issue as to which injury the healing period 
 
benefits should be attributed to.  The parties were not in dispute as 
 
to the time for which claimant was entitled to healing period benefits 
 
or temporary partial disability but instead disputed whether they 
 
should be attributable to a 1988 or a 1989 injury.  Having found that 
 
no injury occurred in 1989 which was new and different it follows that 
 
all healing period benefits and temporary partial disability benefits 
 
are attributable to the injury of November 22, 1988.
 
 
 
The commencement date for payment of permanent disability benefits was 
 
also disputed.  Claimant received intermittent payments of healing 
 
period benefits and temporary partial disability.  It has previously 
 
been held that when no healing period benefits are paid the 
 
commencement date is the date of injury.  Brincks v. Case Power & 
 
Equipment, Appeal Decision April 18, 1990, file number 843233.  
 
Applying the Brincks case it follows that the commencement date for 
 
permanent disability benefits should be the date of injury November 22, 
 
1988.  Permanent disability benefits would then be paid intermittently 
 
between healing period benefits and temporary partial disability 
 
benefits until exhausted.  
 
 
 
The next issue is whether claimant is entitled to three exemptions when 
 
calculating the rate of compensation.  Iowa Code section 85.42(1)(b)(2) 
 
specifically provides that a child over the age of 18 must be 
 
physically or mentally incapacitated from earning to be considered a 
 
dependent.  Section 85.44 provides that one must be actually dependent 
 
or physically incapacitated from earing in order to be an eligible 
 
dependent under Chapter 85.  Claimant requested dependency status for a 
 
daughter, age 18, at the time of injury.  The daughter was not a 
 
full-time student but was living at home.  The daughter was considered 
 
a dependent for the 1988 tax returns.  It is held that claimant is 
 
entitled to two exemptions for the injury of November 22, 1988.  The 
 
third exemption cannot be granted because the daughter was employed and 
 
over the age of 18 without being a full-time student.  Therefore, 
 
claimant is considered married and entitled to two exemptions with a 
 
gross earnings of $429.16 per week equating to a weekly benefit rate of 
 
$268.46.  
 
 
 
The final issue is whether claimant is entitled to Second Injury Fund 
 
of Iowa benefits under Iowa Code section 85.64.
 
 
 
Section 85.64 governs Second Injury Fund liability.  Before liability 
 
of the Fund is triggered, three requirements must be met.  First, the 
 
employee must have lost or lost the use of a hand, arm, foot, leg or 
 
eye.  Second, the employee must sustain a loss or loss of use of 
 
another specified member or organ through a compensable injury.  Third, 
 
permanent disability must exist as to both the initial injury and the 
 
second injury.  
 
 
 
The Second Injury Fund Act exists to encourage the hiring of 
 
handicapped persons by making a current employer responsible only for 
 
the amount of disability related to an injury occurring while that 
 
employer employed the handicapped individual as if the individual had 
 
had no preexisting disability.  See Anderson v. Second Injury Fund, 262 
 
N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
Compensation-Law and Practice, section 17-1.
 
 
 
The Fund is responsible for the industrial disability present after the 
 
second injury that exceeds the disability attributable to the first and 
 
second injuries.  Section 85.64.  Second Injury Fund of Iowa v. Braden, 
 
459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 
 
335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
(Iowa 1970).
 
 
 
It is held that claimant has failed to establish entitlement to Second 
 
Injury Fund benefits as no injury has been adjudicated for August 30, 
 
1989.
 
                                 ORDER
 
 
 
IT IS, THEREFORE, ORDERED:
 

 
 
 
 
 
 
 
Defendants Hon Industries and The Travelers Insurance Company shall pay 
 
claimant eighty-five (85) weeks of permanent partial disability 
 
benefits at the rate of two hundred sixty-eight and 46/100 dollars 
 
($268.46) per week commencing November 22, 1988 and paid intermittently 
 
until exhausted in file number 903450.  
 
 
 
It is further ordered that defendants in file number 903450 shall pay 
 
claimant the stipulated periods of healing period benefits and 
 
temporary partial disability benefits at the rate of two hundred 
 
sixty-eight and 46/100 dollars ($268.46) per week.
 
 
 
It is further ordered that claimant shall take nothing in file number 
 
1026712 and said matter be dismissed.  
 
 
 
It is further ordered that claimant is taxed with the cost of the 
 
filing fee in file number 1026712.
 
 
 
It is further ordered that in file number 903450 the gross earnings is 
 
four hundred twenty-nine and 16/100 dollars ($429.16) and claimant is 
 
entitled to a married status with two exemptions for a weekly rate of 
 
two hundred sixty-eight and 46/100 dollars ($268.46).  
 
 
 
It is further ordered that defendants shall receive credit for benefits 
 
previously paid.
 
 
 
It is further ordered that all accrued benefits are to be paid in a 
 
lump sum.
 
 
 
It is further ordered that interest will accrue pursuant to Iowa Code 
 
section 85.30.
 
 
 
It is further ordered that costs of this action are assessed against 
 
defendants Hon Industries and The Travelers Insurance Company pursuant 
 
to rule 343 IAC 4.33.
 
 
 
It is further ordered that defendants Hon Industries and The Travelers 
 
Insurance Company file claim activity reports as requested by this 
 
agency pursuant to rule 343 IAC 3.1.  
 
 
 
Signed and filed this ____ day of December, 1994.
 
                              
 
                              ______________________________
 
                              MARLON D. MORMANN
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Mr. James E. Shipman
 
Attorney at Law
 
115 3rd Street SE, Ste 1200
 
Cedar Rapids, IA  52401
 
 
 
Ms. Vicki L. Seeck
 
Attorney at Law
 
Suite 600
 
111 E. 3rd Street
 
Davenport, IA  52801-1596
 
 
 
Ms. Joanne Moeller
 
Assistant Attorney General
 
Hoover Bldg.
 
Des Moines, IA  50319
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                5-1808, 5-1902, 5-3200
 
                                Filed December 21, 1994
 
                                Marlon D. Mormann
 
 
 
        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
CONNIE KOPF,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                            File Nos. 903450 & 1026712
 
HON INDUSTRIES,    
 
                             A R B I T R A T I O N
 
     Employer, 
 
                               D E C I S I O N
 
and       
 
          
 
THE TRAVELERS INSURANCE CO., 
 
          
 
     Insurance Carrier,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA    
 
          
 
     Defendants.    
 
___________________________________________________________
 
5-1808, 5-1902, 5-3200
 
Claimant alleged a bilateral simultaneous injury to the right and left 
 
hands known as carpal tunnel syndrome occurring on November 22, 1988.  
 
Claimant alleged a second injury occurring in 1989 to the left upper 
 
extremity due to the same carpal tunnel syndrome.  Since the symptoms 
 
were identical between 1988 and 1989 it was held that no new injury had 
 
occurred.  It was the identical condition that claimant suffered from 
 
in 1988 as compared to the 1989 injury.  Claimant only suffered an 
 
increase in symptomatology rather than a separate and distinct injury.  
 
 
 
No second injury was established.  The entire claim was adjudicated 
 
under the November 1988 date.  Claimant was allowed 17 percent to the 
 
body as a whole under Iowa Code section 85.34(2)(s).  The most recent 
 
impairment rating was given greater weight.  Claimant requested 
 
dependent status for a daughter who was age 18 at the time of the 
 
injury and living at home but not a full-time student.  Dependency 
 
status was denied due to the age and the fact that she was employed.  
 
 
 
Claimant was denied permanent disability to the body as a whole for a 
 
psychological problem as it was not determined to be a cause of 
 
permanent disability notwithstanding the fact that it was causally 
 
connected to the injury.  No assessment was made against the Second 
 
Injury Fund of Iowa as the second injury was not established.