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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD D. BOYER,              :
 
                                          :
 
                 Claimant,                :   File Nos. 903811, 931391
 
                                          :             931392, 931393
 
            vs.                           :
 
                                          :     A R B I T R A T I O N
 
            OSCAR MAYER FOODS             :
 
            CORPORATION,                  :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Ronald D. Boyer filed petitions in arbitration 
 
            seeking benefits under the Iowa Workers' Compensation Act as 
 
            the result of alleged work injuries of March 8, 1988 
 
            (931391), March 22, 1988 (931392), April 4, 1988 (903811), 
 
            and December 15, 1988 (931393).  Defendant Oscar Mayer Foods 
 
            Corporation is his self-insured employer.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            August 7, 1991.  Claimant testified personally, as did his 
 
            wife, Barbara Boyer.  Joint exhibits 1 through 9 were 
 
            received into evidence.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            April 4, 1988, that the injury caused temporary disability 
 
            (for which claimant has been compensated) and permanent 
 
            disability, to a compensation rate of $305.01 per week, that 
 
            affirmative defenses are not at issue, that entitlement to 
 
            medical benefits is no longer in dispute, and that certain 
 
            benefits were paid prior to hearing.  The other three 
 
            alleged injury dates are presented essentially as 
 
            alternative dates should the agency find that the record 
 
            supports a date other than April 4, 1988.
 
            
 
                 The only issues presented for resolution include the 
 
            nature (scheduled member v. body as a whole) and extent of 
 
            claimant's permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Claimant Ronald Boyer, just short of his 57th birthday 
 
            on the stipulated injury date, is a 1951 high school 
 
            graduate.  Since leaving high school, he has taken courses 
 

 
            
 
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            in welding, electricity and electric motors.  Appropriate 
 
            certification was earned.
 
            
 
                 After leaving high school, claimant farmed for one 
 
            summer, worked in maintenance for a meat packing concern for 
 
            some 16 years, and began employment with Oscar Mayer Foods 
 
            Corporation in 1967.  He remained employed in maintenance 
 
            and repair work and as an electrician until sustaining the 
 
            subject work injury.
 
            
 
                 Mr. Boyer is right-hand dominant.  Before beginning 
 
            work with Oscar Mayer, he had no history of shoulder 
 
            problems.  Prior to 1988, he may have had some left shoulder 
 
            complaints, but operated under no medical restrictions.  
 
            During the spring of 1988 (in an accident report, claimant 
 
            wrote "1984," but this was merely a clerical error) a heavy 
 
            chain guard fell on his head and shoulder, causing immediate 
 
            left shoulder pain.  Claimant continued to work until 
 
            undergoing surgery on December 15 of that year, experiencing 
 
            several additional strains or exacerbations to the shoulder.  
 
            These minor events are the reason why alternate injury dates 
 
            are presented, although this writer sees no reason not to 
 
            accept the stipulation of the parties.
 
            
 
                 After conservative treatment failed to relieve 
 
            symptoms, claimant was referred to Peter D. Wirtz, M.D.  On 
 
            December 15, 1988, Dr. Wirtz performed surgery described as 
 
            tendon repair, supraspinatus, rotator cuff, left shoulder; 
 
            partial acromionectomy, left shoulder inferior; partial 
 
            bursectomy, left subacromial bursa.  Post-operative 
 
            diagnosis was of rotator cuff tendon rupture supraspinatus 
 
            tendon, inferior acromial spur.  Surgical notes reflect that 
 
            incision was carried both proximal and distal to the tip of 
 
            the acromion and carried down through the deltoid muscle.  
 
            Accordingly, it is found that the surgical procedure invaded 
 
            the body as a whole.
 
            
 
                 The Oscar Mayer plant closed in February 1989, while 
 
            claimant was recuperating from surgery.  Claimant never 
 
            returned to work with defendant.  The physical plant was 
 
            purchased by another meat packing concern, but claimant has 
 
            elected not to seek work there (although this is doubtless 
 
            among the largest employers in the Perry, Iowa, area where 
 
            he lives), apparently for reasons pertaining to labor 
 
            relations.
 
            
 
                 On June 7, 1989, Dr. Wirtz wrote that claimant had 
 
            reached maximum medical benefit and had sustained a loss of 
 
            motion equivalent to a 15 percent impairment of the upper 
 
            extremity.  However, Dr. Wirtz later wrote on June 26, 1991, 
 
            that claimant had sustained a 19 percent impairment of that 
 
            extremity due to loss of motion, and an additional 5 percent 
 
            impairment due to weakness, totalling 24 percent.  Symptoms 
 
            were described as continuing with difficulty in lifting, 
 
            loss of motion and strength in away from side elbow 
 
            activities.  Claimant's work capacity at that time was 20 
 

 
            
 
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            pounds elbow lifting and 10 pounds abduction activities, 
 
            with symptoms noted in activities over shoulder height.
 
            
 
                 Claimant was also seen for evaluation by Jerome G. 
 
            Bashara, M.D., on May 17, 1991.  Dr. Bashara assessed 
 
            claimant as having sustained an eight percent impairment to 
 
            the body as a whole and recommended restrictions against 
 
            lifting in excess of 20 pounds above shoulder level or 
 
            repetitive use of the left shoulder or upper extremity above 
 
            shoulder level.  Dr. Bashara also found weakness in 
 
            abduction, loss of range of motion and noted marked 
 
            crepitation on abduction.
 
            
 
                 After claimant was released to return to work by Dr. 
 
            Wirtz, he applied for and received job insurance benefits 
 
            for 39 weeks.  Twenty-six weeks were standard job insurance 
 
            benefits, and thirteen weeks were federal supplemental 
 
            benefits.  Job Service requires two work search contacts per 
 
            week for regular benefits and three per week for federal 
 
            supplemental benefits.  In each week, claimant was required 
 
            to certify that he was able to work and available for work.  
 
            However, he did not find another job and last actively 
 
            sought work in approximately autumn, 1990.
 
            
 
                 Nonetheless, claimant has not been entirely idle.  He 
 
            has farmed on what he describes as a "part-time" basis since 
 
            1960, when he moved to the acreage where he presently 
 
            resides.  He has continued farming in conjunction with his 
 
            son Stanley since then.  The farming operation, although 
 
            perhaps not a huge corporate farming enterprise, is 
 
            nonetheless substantial, both as a grain and a livestock 
 
            operation.  Claimant and his son farm some 200 acres (180 of 
 
            which are rented) and claimant now has approximately 150 
 
            hogs in confinement.  His son also raises hogs, but the 
 
            record does not disclose the size of that operation.
 
            
 
                 Claimant currently complains of pain on overhead 
 
            lifting or repetitive use of the left shoulder.  He is not 
 
            currently seeing any physician or taking medication other 
 
            than aspirin.  He indicates that his son assists with heavy 
 
            or overhead lifting in their joint farming operation.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether claimant's 
 
            disability is to the arm, a scheduled member, or to the body 
 
            as a whole.  A scheduled member loss is compensated pursuant 
 
            to the schedule set forth in Iowa Code section 85.34, which 
 
            is presumed to include compensation for the reduced capacity 
 
            to labor and earn.  Schell v. Cent. Eng'g Co., 232 Iowa 421, 
 
            4 N.W.2d 399 (1942).  An injury to the body as a whole is 
 
            compensated industrially; that is, to the extent to which 
 
            the injury reduces claimant's earning capacity.  Second 
 
            Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990).
 
            
 
                 A shoulder injury is an injury to the body as a whole 
 
            if the injury affects the "body side" of the shoulder joint.  
 

 
            
 
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            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  The 
 
            agency has typically compensated shoulder injuries 
 
            industrially on the basis that such injuries involve 
 
            disability to the body as a whole.  Streeter v. Iowa Meat 
 
            Processing Co., file numbers 730461 and 809945 (App. Decn., 
 
            March 31, 1989); Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (1982); Houser v. A M 
 
            Cohron & Sons, file number 851752 (Arb. Decn., July 18, 
 
            1990).  Noting in particular that the surgical procedure 
 
            undertaken by Dr. Wirtz invaded the body side of the joint 
 
            (the acromion and deltoid were affected), it is held that 
 
            claimant's injury must be compensated industrially.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 

 
            
 
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            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant was nearly 57 years of age at the time of his 
 
            injury.  This affects his earning capacity in at least two 
 
            ways.  On one hand, any reduction in wages would affect him 
 
            for less time than a younger worker, since he was only 
 
            approximately eight years from what is commonly considered 
 
            retirement age.  On the other hand, he may well be less 
 
            attractive to potential employers due to his age, especially 
 
            given his history of injury and medical restrictions 
 
            suggested by Drs. Wirtz and Bashara.  There are also mixed 
 
            considerations with respect to claimant's motivation.  While 
 
            he sought work with two or three employers per week for some 
 
            39 weeks after being released by Dr. Wirtz (at least 91 
 
            contacts, although some may be duplicative), he 
 
            substantially reduced his search for work after exhausting 
 
            unemployment benefits and eventually gave up seeking work 
 
            altogether.  It is not an unreasonable inference that 
 
            claimant's ongoing work search during those 39 weeks was in 
 
            part inspired by necessity; without a work search, job 
 
            insurance benefits terminate.  Claimant now appears 
 
            satisfied to devote his energies to his family farming 
 
            operation.  He is receiving a retirement pension of $266.00 
 
            per month from Oscar Mayer and expects to claim Social 
 
            Security benefits at age 62, two years from now.
 
            
 
                 Although claimant's farming operation has not been 
 
            particularly profitable in the last two years, that is not a 
 
            direct measure of earning capacity.  Farming is an 
 
            entrepreneurial enterprise which does not directly measure 
 
            the value of one's labor.  Farm management skills, general 
 
            market conditions and various accounting techniques for tax 
 
            purposes may all be equally important factors in determining 
 
            the profitability of a farming enterprise.
 
            
 
                 An important consideration in determining industrial 
 
            disability is the way in which medical restrictions 
 
            resulting from a work injury limit an individual's ability 
 
            to perform the work that individual has performed in the 
 
            past or work suitable by reason of transferrable skills.  
 
            Claimant has worked essentially in farming and maintenance 
 
            during his career.  Although in some respects limited, it is 
 

 
            
 
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            clear that he is able to continue farming to at least some 
 
            substantial degree.  His work in maintenance, and 
 
            particularly as an electrician or in the repair of 
 
            electrical motors, is no doubt affected.  Restrictions 
 
            against heavy or repetitive lifting over the shoulder no 
 
            doubt foreclose claimant from some mechanical maintenance 
 
            jobs, but not others.  For example, claimant may well be 
 
            able to perform bench work in the repair of electrical 
 
            motors.
 
            
 
                 Claimant cannot return to his old job, since the plant 
 
            has closed.  It is unclear whether he could do the same work 
 
            for the business presently operating that plant, since he 
 
            has elected not to seek employment with that concern.  The 
 
            refusal of an employer to provide work following a work 
 
            injury may justify the award of industrial disability or 
 
            increase industrial disability.  McSpadden v. Big Ben Coal 
 
            Co., 288 N.W.2d 181 (Iowa 1980); Pigneri v. 
 
            Ringland-Johnson-Crowley, file number 838742 (App. Decn., 
 
            July 31, 1991).  However, it was the plant closing that 
 
            directly resulted in claimant's loss of job, not his injury.
 
            
 
                 Claimant also asserts that he is an odd-lot employee 
 
            under the theory adopted in Guyton v. Irving Jensen Co., 373 
 
            N.W.2d 101 (Iowa 1985).  An odd-lot employee is one who is 
 
            so limited in the work that individual may perform in 
 
            quality, quantity and dependability, that a reasonably 
 
            stable market for that work does not exist.  A combination 
 
            of factors should be considered, including age, 
 
            intelligence, education, qualifications and experience.  If 
 
            the employee makes a prima facie showing of coming within 
 
            the odd-lot category, the burden of proof shifts to the 
 
            employer to produce evidence that suitable employment 
 
            exists.  The test is whether claimant is employable in a 
 
            competitive labor market.  Brown v. Nissen Corp., file 
 
            number 837608 (App. Decn., November 30, 1989).
 
            
 
                 The undersigned concludes that claimant has failed to 
 
            meet his burden of proof in establishing that he is an 
 
            odd-lot employee.  Although there are doubtless jobs for 
 
            which he was previously suited by experience and training 
 
            which he can now not perform, it is probable that there are 
 
            others claimant remains capable of performing.  These 
 
            include bench work in electrical motor repair and farming.
 
            
 
                 Considering then all these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent partial disability equivalent to 25 
 
            percent of the body as a whole, or 125 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file numbers 931391, 931392, and 931393, claimant 
 
            shall take nothing.
 
            
 

 
            
 
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                 In file number 903811:
 
            
 
                 Defendant shall pay unto claimant permanent partial 
 
            disability benefits for one hundred twenty-five (125) weeks 
 
            commencing June 15, 1989 at the stipulated rate of three 
 
            hundred five and 01/100 dollars ($305.01) per week.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendant shall have credit for benefits voluntarily 
 
            paid prior to the filing of this decision.
 
            
 
                 The costs of each action are assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert E. McKinney
 
            Attorney at Law
 
            480 6th Street
 
            P.O. Box 209
 
            Waukee, Iowa  50263
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 1803.1
 
                           Filed September 10, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RONALD D. BOYER,    :
 
                      :
 
                 Claimant, :   File Nos. 903811, 931391
 
                      :             931392, 931393
 
            vs.       :
 
                      :     A R B I T R A T I O N
 
            OSCAR MAYER FOODS   :
 
            CORPORATION,   :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1803.1
 
            Shoulder injury (rotator cuff repair) was found to cause 
 
            disability to body as a whole.  Surgery affected acromion 
 
            and deltoid muscle.
 
            
 
            5-1803
 
            Industrial disability determined.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            DOUGLAS STOREY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 903982
 
            REED'S PLUMBING & HEATING,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Douglas 
 
            Storey against his former employer Reed's Plumbing and 
 
            Heating and its insurance carrier Aetna Casualty and Surety 
 
            Insurance Company, based upon an injury that occurred on 
 
            June 2, 1988.  Claimant seeks compensation for permanent 
 
            partial disability of his right shoulder as a result of that 
 
            injury.  An issue exists with regard to whether the injury 
 
            is a scheduled injury of the arm or an injury to the body as 
 
            a whole which should be compensated industrially.  Claimant 
 
            also seeks compensation for a left shoulder injury based 
 
            upon a theory of cumulative trauma.  Defendants dispute all 
 
            liability for any left shoulder injury or condition.
 
            
 
                 The case was heard at Des Moines, Iowa, on April 8, 
 
            1992.  The evidence consists of testimony from Douglas 
 
            Storey and jointly offered exhibits 1 through 27.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 Douglas Storey is a 38-year-old man who graduated from 
 
            high school in 1971 and then briefly attended Grand View 
 
            College.  He worked for a time at John Deere and then 
 
            entered the plumbing trade in 1976.  At times he also drove 
 
            semi-trucks or performed general construction labor, 
 
            including concrete work.  
 
            
 
                 Storey commenced employment with Reed's Plumbing and 
 
            Heating in February 1987 working as a plumber.  He sometimes 
 
            functioned as a working supervisor.  On June 2, 1988, he 
 
            tripped and fell while carrying fittings, landing on his 
 
            right shoulder.  He experienced the immediate onset of 
 
            symptoms.
 

 
            
 
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                 After several weeks of unsuccessful treatment, his 
 
            medical care was transferred to Des Moines orthopedic 
 
            surgeon Scott B. Neff, D.O.  With the assistance of 
 
            diagnostic tests, Dr. Neff diagnosed a torn rotator cuff 
 
            (exhibit 9, page 5).  A surgical repair was performed.  As 
 
            part of the surgical procedure the distal end of claimant's 
 
            right clavicle was removed and acromioplasty was performed 
 
            (ex. 10, pp. 4-5).  Dr. Neff released claimant to return to 
 
            work effective February 1, 1989, with restrictions, but the 
 
            employer had no work available within those restrictions 
 
            (ex. 9, pp. 11-15).  On April 14, 1989, Dr. Neff lessened 
 
            the restrictions and again released claimant to return to 
 
            work (ex. 9, p. 16; ex. 17, p. 17).  Claimant did return to 
 
            work as a plumber for Reed's Plumbing and Heating.  On May 
 
            5, 1989, a follow-up examination with Dr. Neff was 
 
            conducted.  Dr. Neff characterized claimant's work of using 
 
            a jackhammer and wheelbarrows of cement as risky.  He 
 
            recommended that it would be good if claimant were to change 
 
            jobs (ex. 9, pp, 16-18; ex. 17, p. 19).  
 
            
 
                 When Dr. Neff examined claimant in April and May of 
 
            1989, there was no indication that claimant was having any 
 
            problems with his left shoulder (ex. 17, pp. 17, 36, 38).  
 
            Dr. Neff felt that the right shoulder result from the 
 
            surgical treatment was very favorable.  He noted the 
 
            shoulder had been doing beautifully, but that it did have 
 
            the expected weakness typical for the condition (ex. 9, pp. 
 
            21-24; ex. 17, p. 38).
 
            
 
                 On May 5, 1989, Dr. Neff provided an impairment rating 
 
            of 2 percent of the body as a whole (ex. 11, p. 6).  Later, 
 
            in December 1991, the right shoulder impairment was rated at 
 
            5 percent of the body as a whole based upon state of the art 
 
            testing procedures (ex. 11, pp. 6, 9-13).  Dr. Neff 
 
            considered the 1991 testing procedures to be superior to the 
 
            procedures used in 1989.  The tests showed substantial 
 
            limitations in claimant's ability to make use of his right 
 
            arm and shoulder as well as his left arm and shoulder.  
 
            Between the two, the right was more severely restricted.  
 
            
 
                 Claimant's work with Reed's Plumbing and Heating was 
 
            largely commercial, a type of work described as being more 
 
            heavy and strenuous than residential plumbing work.  At 
 
            hearing claimant related that part of the reason he left 
 
            Reed's Plumbing and Heating and went to his next employer, 
 
            Cook Plumbing and Heating, was to avoid the heavy type of 
 
            work such as using jackhammers and wheelbarrows of cement in 
 
            accordance with recommendations from Dr. Neff.  
 
            
 
                 While working for his next employer, Cook Plumbing, 
 
            claimant apparently sustained an injury to his left shoulder 
 
            in August 1989.  That injury was subsequently evaluated and 
 
            determined to be a torn rotator cuff.  After working for 
 
            Cook, claimant then obtained employment as a plumber with 
 
            Lenhart Plumbing.  Finally, on October 4, 1989, claimant 
 
            ceased working as a plumber.  At that time that he entered 
 
            into the course of treatment for the left shoulder which 
 
            resulted in the diagnosis and rotator cuff repair surgery.  
 

 
            
 
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                 Claimant has since enrolled in college at Iowa State 
 
            University and is studying fish and wildlife biology.  At 
 
            the end of the first year, his grade point average was 2.74.  
 
            Currently, his grade point average is in the range of 3.0.  
 
            
 
                 During the months that claimant worked at Reed's 
 
            Plumbing and Heating, following his right shoulder repair 
 
            surgery, he performed all of his assigned duties and did not 
 
            experience any loss in his rate of pay or any loss of time 
 
            from work due to the shoulder injury.  He stated at hearing 
 
            that he had no problems with his left shoulder or with his 
 
            elbow or wrist while he was working at Reed's.  He testified 
 
            at hearing that he had no problem with his left shoulder 
 
            prior to the traumatic injury that occurred while he was 
 
            employed by Cook Plumbing.  When cross-examined, claimant 
 
            stated that he left Reed's for approximately 10 percent 
 
            higher pay at Cook Plumbing and that leaving Reed's had 
 
            nothing to do with his right shoulder.  He characterized the 
 
            work at Cook Plumbing as being substantially the same as at 
 
            Reed's.  Claimant stated that prior to his August 1989 
 
            injury with Cook Plumbing he had been able to do all of his 
 
            duties and did not have problems with his left shoulder.  He 
 
            attributes his left shoulder problems to the Cook Plumbing 
 
            injury.  
 
            
 
                 Claimant eventually left Cook Plumbing to work for 
 
            Lenhart Plumbing.  He attributed the change to a desire to 
 
            relocate to a place closer to his home and stated that the 
 
            change had nothing to do with either of his shoulders.  
 
            Lenhart was strictly residential plumbing work.  
 
            
 
                 Claimant testified that his arms gave out while he was 
 
            working for Lenhart Plumbing and that he left Lenhart for 
 
            medical reasons.  He stated that his left shoulder had 
 
            continued to worsen following the injury with Cook Plumbing, 
 
            but he stated that his right arm did not seem to deteriorate 
 
            while he was employed by Lenhart Plumbing.  
 
            
 
                 Claimant stated that presently his right shoulder has a 
 
            constant burning sensation that is not as bad as it had been 
 
            previously.  He stated that if he tries to lift with his 
 
            right arm, higher than mid-chest, even something as light as 
 
            a gallon of milk, he experiences pain down the front of his 
 
            upper right arm.  He complained of limited motion and 
 
            reduced strength.  
 
            
 
                 Claimant stated that he is unable to perform plumbing 
 
            work because it requires overhead lifting.  He felt unable 
 
            to perform truck driving due to the need to shift and turn a 
 
            large steering wheel.  He fells unable to perform 
 
            construction labor.  He stated that he is unable to do any 
 
            job that he has done in the past due to his lack of use of 
 
            his right arm.  Claimant was unable to state if he could 
 
            have continued to perform plumbing work if he had never 
 
            injured his left shoulder.  He stated that he probably could 
 
            not have done so, despite the fact that he was actually 
 
            doing plumbing work following recovering from the right 
 
            shoulder injury.  
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant has applied for and received social security 
 
            disability benefits retroactive to the time he left work at 
 
            Lenhart Plumbing.
 
            
 
                 It is found to be unlikely that anything claimant did 
 
            while employed by Reed's Plumbing and Heating produced the 
 
            torn rotator cuff in his left shoulder.  While he might have 
 
            been exposed to some type of cumulative trauma, there is no 
 
            showing that the trauma had produced any injury while at 
 
            Reed's Plumbing and Heating.  Claimant is, therefore, not 
 
            entitled to any recovery from Reed's Plumbing and Heating 
 
            based upon the condition of his left shoulder, a condition 
 
            which arose subsequent to the right shoulder injury which is 
 
            the subject of the remaining portions of this case.  
 
            
 
                 The evidence in this case shows that the injury was not 
 
            so much to the claimant's right arm as it was to the 
 
            shoulder girdle itself.  He had a torn rotator cuff.  His 
 
            distal clavicle was excised.  The anatomical point of 
 
            injury, and the reason for the weakness and lost use of his 
 
            right arm, has its basis in the impairment of the function 
 
            of the shoulder girdle itself.  Accordingly, the injury is 
 
            one which should be evaluated industrially.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 It is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.  It is concluded that 
 
            claimant's disability should be evaluated industrially under 
 
            Code section 85.34(2)(u).
 
            
 
                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 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.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Orthopedic surgeon James V. Nepola, M.D., stated that 
 
            when a person who has experienced a torn rotator cuff has 
 
            customarily been employed in a labor intensive occupation 
 
            that it is generally advisable for the person to seek 
 
            vocational rehabilitation in order to enter a type of work 
 
            which is not labor oriented (ex. 18, p. 21).  
 
            
 
                 As indicated by Dr. Neff, even successful rotator cuff 
 
            repair surgery often leaves the affected person with a lack 
 
            of ability to perform overhead work.  The fact that claimant 
 
            remained employed by Reed's Plumbing and Heating and was 
 
            able to perform his job does not mean that he was able to 
 
            perform all aspects of the plumbing occupation or everything 
 
            which he had been able to do prior to the injury.  He 
 
            clearly had reduced strength.  It is common for plumbing to 
 
            require overhead work.  It is also common for plumbing to 
 
            require quite heavy work.  It would not have been imprudent 
 
            for claimant to have changed occupations following his right 
 
            shoulder injury.  It became imperative that he do so after 
 
            his left shoulder injury imposed itself upon the right 
 
            shoulder injury.  He could no longer use his left arm to 
 
            compensate for the right.  
 
            
 
                 The decision in this case is to be based upon the 
 
            situation that existed following recovery from the right 
 
            shoulder injury, but as though the left shoulder had not 
 
            occurred.  That situation is one in which the claimant had 
 
            reduced ability to use his right arm, reduced ability to 
 
            perform overhead work with the right arm and reduced 
 
            strength in his right arm.  Those are all substantial 
 
            limitations for a person who makes a living with his hands.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The fact that he was able to perform without loss of actual 
 
            earnings, is evidence that the degree of disability is 
 
            relatively small, yet it appears as though he were able to 
 
            do so only by being highly motivated as to work in excess of 
 
            what was really prudent for him in view of the weakened 
 
            state of his right shoulder.  Under circumstances such as 
 
            these, the postinjury level of earnings is not a 
 
            particularly strong indicator of actual earning capacity if 
 
            the level of earnings is achieved through performing work 
 
            activities which are injurious or likely to produce further 
 
            medical problems.  With only an impaired right shoulder, the 
 
            claimant could probably have remained in the plumbing 
 
            occupation, but he would have been limited in the jobs he 
 
            could perform or accept.  He was not capable of performing 
 
            the full range of plumbing activities.  
 
            
 
                 When all the foregoing factors of industrial disability 
 
            are considered, it is determined that Douglas Storey 
 
            sustained a 20 percent reduction in his earning capacity and 
 
            a 20 percent permanent partial disability under the 
 
            provisions of Iowa Code section 85.34(2)(u).  This entitles 
 
            him to recover 100 weeks of compensation for permanent 
 
            partial disability.
 
            
 
                                      ORDER
 
            
 
                 It is therefore ordered that defendants pay Douglas A. 
 
            Storey one hundred (100) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of two hundred 
 
            twenty-four and 70/100 dollars ($224.70) per week payable 
 
            commencing April 18, 1989.  Defendants are entitled to 
 
            credit for the seven and four-sevenths (7 4/7) weeks of 
 
            permanent partial disability compensation previously paid 
 
            and shall pay the remaining amount in a lump sum together 
 
            with interest pursuant to Code section 85.30 computed from 
 
            the date each weekly payment came due until the date it is 
 
            actually paid.  
 
            
 
                 It is further ordered that defendants pay the costs of 
 
            this action pursuant to 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Tom Drew
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St. STE 500
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            West Des Moines, Iowa  50265
 
            
 
            Mr. Timothy C. Hogan
 
            Attorney at Law
 
            4th Floor, Equitable Bldg
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                                 1803.1 1803
 
                                                 Filed October 2, 1992
 
                                                 Michael G. Trier
 
 
 
                      BEFORE THE IOWA INDUSRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DOUGLAS STOREY,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 903982
 
            REED'S PLUMBING & HEATING,    
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY AND SURETY,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Torn rotator cuff with excision of distal clavicle found to 
 
            be injury to the body as a whole.  
 
            
 
            1803
 
            Thirty-eight-year-old plumber with right torn rotator cuff 
 
            awarded 20 percent permanent partial disability even though 
 
            he had returned to work without loss of actual earnings.  
 
            The work was shown to be in excess of his capabilities and 
 
            likely to have produced further injury.  He was not able to 
 
            perform the full range of duties of his trade.  Medical 
 
            recommendations were that he change to a less labor 
 
            intensive occupation.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT MUHM,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 904085
 
            RHINERS PLUMBING,             :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Robert Muhm, against his employer, Rhiners 
 
            Plumbing, and its insurance carrier, Aetna Casualty and 
 
            Surety Company, defendants.  The case was heard on April 16, 
 
            1992, in Des Moines, Iowa, at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant.  The record also consists of the testimonies of 
 
            David Reynolds, David Lycke, Shelly Muhm, and Donald Muhm.  
 
            Additionally, the record consists of joint exhibits 1-5.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is whether claimant's 
 
            work injury is the cause of any permanent disability and, if 
 
            so, the nature and extent of the permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 33 years old and married.  He has a high 
 
            school diploma.  Subsequent to his high school graduation, 
 
            claimant had engaged in strenuous labor, primarily in the 
 
            construction industry.  He held various laboring positions.
 
            
 
                 Claimant commenced employment with defendant in June of 
 
            1988.  His work was physically demanding and he engaged in 
 
            heavy lifting.  He testified he had no difficulties 
 
            performing the lifting involved.  On most jobs, claimant 
 
            received $7.00 per hour, however, on projects under the 
 
            Davis-Bacon Act, claimant earned $10 per hour.
 
            
 
                 On the date in question, claimant fell through a flat 
 
            bed trailer while carrying equipment.  As he was falling 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            through the hole, he twisted his back.  Claimant testified 
 
            he felt excruciating pain in his lower back.  Claimant 
 
            continued to work that day, as well as the subsequent day.  
 
            He indicated at the hearing that he was unable to engage in 
 
            all of his job functions.
 
            
 
                 On October 5, 1988, claimant sought chiropractic care 
 
            from Glen D. Madsen, D.C., P.C.  Dr. Madsen diagnosed 
 
            claimant's condition as:
 
            
 
                 CONCLUSION: Faulty vertebral posture places great                     
 
                 stress on the lumbar disc that were injured                 
 
                 with the force of the fall.
 
            
 
                 PROGNOSIS:Patient has an injury to the ligaments 
 
                 and                 disc.  There is slow 
 
                 improvement in the                 overall 
 
                 condition.  The degree of permanent                    
 
                 disability is difficult to predict at this                  
 
                 time.
 
            
 
            (Ex. E, p. 14)
 
            
 
                 Claimant continued conservative care for a period of 
 
            time.
 
            
 
                 Approximately one month later defendants referred 
 
            claimant to William R. Boulden, M.D., P.C.  Dr. Boulden 
 
            diagnosed claimant's condition as "Significant myofascial 
 
            pain and tightness." (Ex. A, p. 1)  Dr. Boulden treated 
 
            claimant in a conservative fashion.  The physician 
 
            recommended mobilization and a work hardening project (Ex. 
 
            A).  According to the testimony of Thomas Bower, L.P.T., 
 
            claimant provided submaximal effort and performance (Ex. 4, 
 
            p. 6).  Mr. Bowers testified that claimant had no change in 
 
            his functional capacity after the program but that claimant 
 
            did have increased mobility.
 
            
 
                 After the work hardening program, Dr. Boulden opined 
 
            claimant had reached maximum medical improvement on February 
 
            2, 1989.  Dr. Boulden also opined that:  "At this time, I 
 
            feel the patient has a 5% impairment of the spine based on 
 
            the fact of myofascial pain, tightness and aggravation of 
 
            degenerative disc disease."
 
            
 
                 Dr. Boulden did not release claimant to return to work 
 
            at his former job.  Dr. Boulden wrote in his report of 
 
            February 2, 1989: "[W]e do not feel that he can return to 
 
            previous work, since it is too abusive to his back, and with 
 
            the symptoms that he is stating."
 
            
 
                 For purposes of evaluation, claimant went to see Jerome 
 
            G. Bashara.  He diagnosed claimant with:
 
            
 
                 1)  Musculoligamentous strain, cervical spine
 
            
 
                 2)  Musculoligamentous strain, lumbar spine
 
            
 
                 3)  Rule out lumbar disc injury.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Dr. Bashara calculated an impairment rating for 
 
            claimant.  Dr. Bashara opined:  "I would give the patient a 
 
            3% permanent partial physical impairment of his body as a 
 
            whole related to his neck injuries."
 
            
 
                 Dr. Bashara additionally opined:  "I would give the 
 
            patient a 5% permanent/partial physical impairment of his 
 
            body as a whole related to his lower back injury or lumbar 
 
            disc injury."
 
            
 
                 On December 2, 1991, claimant saw Martin S. Rosenfeld, 
 
            D.O., for purposes of an evaluation.  Dr. Rosenfeld 
 
            concurred with Dr. Boulden that claimant had a 5 percent 
 
            functional impairment.  In his report, Dr. Rosenfeld wrote:
 
            
 
                 Films are reviewed.
 
            
 
                 Impression:  1) Chronic lumbo-sacral strain.
 
            
 
                              2) Probable right sciatica.
 
            
 
                 Recommendations at this time would include a trial 
 
                 course of epidural steroid injections, a course of 
 
                 Elavil or other anti-depressant medication for 
 
                 chronic pain, and weight reduction.  I would agree 
 
                 with the other two consultants that there is no 
 
                 surgical lesion present at this time.
 
            
 
                 Due to a negative history of problems prior to the 
 
                 injury of October, 1988 I would feel that this 
 
                 injury is the cause of his chronic and current 
 
                 back condition.  I would think that he did, 
 
                 indeed, reach maximum medical healing sometime in 
 
                 1989 as described in the other consultant's 
 
                 letters, although the above recommended treatment 
 
                 should help relieve some of his symptoms, but not 
 
                 change his overall problem.  I feel that he does, 
 
                 indeed, have a five (5%) percent physical 
 
                 impairment to the body as a whole as a result of 
 
                 the October, 1988 injury.  I would feel that he 
 
                 needs to maintain his restrictions of no manual 
 
                 labor and continued duty work.
 
            
 
            (Ex. G, p. 2)
 
            
 
                 After claimant's release from Dr. Boulden on February 
 
            2, 1991, claimant did not start working until July of 1990.  
 
            At that time, claimant was hired as a waiter at a then open 
 
            restaurant.  Claimant worked 25-30 hours per week.  However, 
 
            business slowed and claimant obtained work through a 
 
            temporary agency.  Later, claimant obtained his present 
 
            position as a cook at Glenn's Restaurant.
 
            
 
                 Since the date of his hire, claimant has been working 
 
            as a cook.  He is the person who is responsible for setting 
 
            up the kitchen, working the cook line, and for closing the 
 
            kitchen.  The supervisors have made special accommodations 
 
            for claimant.  Claimant is not required to perform heavy 
 
            lifting, sweeping or mopping.  He is not required to lift 
 
            filled kettles.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
      3); 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 The treating orthopedic surgeon has opined that 
 
            claimant has a 5 percent permanent impairment.  An 
 
            evaluating physician, Dr. Bashara, has rated claimant as 
 
            having 3 percent functional impairment to the neck, and a 5 
 
            percent functional impairment rating because of the October 
 
            work injury.  Another evaluating physician has opined that 
 
            claimant has a 5 percent functional impairment rating 
 
            because of the October work injury.  The three physicians 
 
            concur that claimant is permanently impaired.  The 
 
            undersigned is in agreement.
 
            
 
                 Claimant argues that he has an industrial disability.  
 
            Again, the undersigned is in agreement.  Claimant is 
 
            industrially disabled.  He can no longer engage in heavy 
 
            labor, including construction work.  For most of his career, 
 
            claimant has worked in the construction field at $7 to $10 
 
            per hour.  Claimant is now precluded from these types of 
 
            jobs.  Claimant is restricted to positions where the heavy 
 
            lifting is greatly curtailed.  His skills in the building 
 
            trades, for the most part, are non-transferable.  Claimant 
 
            has few skills outside of the construction industry.  
 
            Claimant's former jobs have mostly been unskilled.  He has 
 
            no training beyond the high school level.
 
            
 
                 Claimant is currently employed as an assistant cook.  
 
            He is receiving on-the-job training.  The food service 
 
            industry is notoriously low in wages for its employees.  
 
            After one year of employment,  claimant is only earning 
 
            $6.50 per hour.  He works between 35-40 hours per week.  
 
            Claimant is working for an employer who is willing to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            accommodate claimant.  The present employer is to be 
 
            commended.  Claimant's continued employment is likely; he is 
 
            well respected by his employer.  Claimant is an exemplary 
 
            employee.  Occasionally, he is required to take a sick day 
 
            because of his back.
 
            
 
                 Therefore, in light of the foregoing, as well as in 
 
            light of the testimony and this deputy's observations of 
 
            claimant, it is the determination of the undersigned that 
 
            claimant has a 20 percent permanent partial disability.  He 
 
            is entitled to 100 weeks of benefits at the stipulated rate 
 
            of $190.40 per week.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant is entitled to one hundred (100) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of one hundred ninety and 40/100 dollars ($190.40) per week 
 
            and commencing on February 3, 1989.
 
            
 
                 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 defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants 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 May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Mark S Pennington
 
            Attorney at Law
 
            620 Fleming Bldg
 
            Des Moines IA 50309
 
            
 
            Mr Timothy C Hogan
 
            Attorney at Law
 
            4th Flr Equitable Bldg
 
            Des Moines IA 50309
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803
 
                                               Filed May 21, 1992
 
                                               Michelle A. McGovern
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT MUHM,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 904085
 
            RHINERS PLUMBING,             :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
             Claimant was awarded a 20% permanent partial disability for 
 
            an injury he sustained to his lower back.  For most of his 
 
            career, claimant was a construction worker.  Claimant cannot 
 
            return to the construction field.  He is restricted to 
 
            positions where heavy lifting is curtailed.  Claimant's 
 
            skills in the building trades, for the most part, are 
 
            non-transferable.  Claimant's former jobs have mostly been 
 
            unskilled.  He has no training beyond the high school level.
 
            Claimant is currently employed as a second cook.  He is 
 
            receiving on-the-job training.  He makes $6.50 per hour and 
 
            works 35-40 hours per week.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed November 26, 1990
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD L. BERDING,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 832396 & 904266
 
            PACKERLAND PACKING CO., INC., :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803 - Enrollment in retraining program and effect on 
 
            industrial disability.
 
            Participation in a retraining program is no measure of its 
 
            success but its probable success may be shown by other 
 
            evidence.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOREN A. BROMMEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 904291
 
            SANCHEZ STRUCTURES, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the March 1, 
 
            1989 petition of claimant Loren A. Brommel for benefits 
 
            under the Iowa Workers' Compensation Act from his employer, 
 
            Sanchez Structures, Inc., DBE, and its insurance carrier, 
 
            Cigna Insurance Companies.  This cause came on for hearing 
 
            in Des Moines, Iowa, on April 25, 1991.
 
            
 
                 Claimant failed to appear at hearing for reasons 
 
            unknown.  He was aware of the scheduled hearing, but missed 
 
            two recent appointments with his attorney, one on the 
 
            morning of April 25.  Counsel sought permission to dismiss 
 
            without prejudice, but the request was denied under Iowa 
 
            Rule of Civil Procedure 215.  To justify dismissal 
 
            immediately prior to hearing, claimant must show some cause 
 
            other than mere whim.
 
            
 
                 No testimony was received.  The record consists of 
 
            claimant's exhibits 1 and 2 and joint exhibits 3 through 9, 
 
            inclusive.
 
            
 
                                      issues
 
            
 
                 The parties entered into an extensive stipulation.  It 
 
            was agreed that claimant sustained an injury arising out of 
 
            and in the course of his employment with Sanchez Structures 
 
            on September 12, 1988, and that the injury caused both 
 
            temporary (from October 3, 1988 through July 14, 1989) and 
 
            permanent disability to the arms bilaterally.  Medical 
 
            benefits are not in dispute.  The appropriate rate of weekly 
 
            benefits is $354.05.  Defendants voluntarily paid 75 weeks, 
 
            3 days of compensation at the stipulated rate prior to 
 
            hearing.
 
            
 
                 The sole issue presented for resolution is the extent 
 
            of claimant's permanent disability to both arms.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            considered all of the evidence submitted, finds:
 
            
 
                 Loren A. Brommel developed bilateral numbness and 
 
            tingling in the fingers, loss of grip and swelling 
 
            bilaterally, symptoms greater on the right, while employed 
 
            by Sanchez Structures as an ironworker.  This work required 
 
            repetitious and physically demanding use of the hands.
 
            
 
                 After referral to Douglas S. Reagan, M.D., claimant 
 
            underwent carpal, ulnar and cubital tunnel releases on the 
 
            right side on November 1, 1988, and on the left side on 
 
            January 24, 1989.
 
            
 
                 At the time of his deposition on April 2, 1990, 
 
            claimant continued to have symptomatology described by 
 
            evaluating physician Jerome G. Bashara, M.D., (on April 13, 
 
            1990) as follows:
 
            
 
                 He continued to experience bilateral numbness and 
 
                 tingling, stiffness, loss of grip and strength, 
 
                 pain in his wrists, elbows, and shoulders.  He 
 
                 noted dropping objects easily, difficulty with 
 
                 lifting, pushing, pulling, using a hammer, etc.  
 
                 Cold, damp weather would affect his symptoms.  He 
 
                 also noted muscle spams [sic], swelling and 
 
                 tenderness.
 
            
 
                 On July 13, 1989, Dr. Reagan wrote that claimant was 
 
            able to return to work with no repetitive activities and 
 
            avoidance of heavy lifting.  On the same day, his chart 
 
            notes reflect his view that claimant had sustained an eight 
 
            percent partial impairment of the whole person.  Dr. 
 
            Reagan's willingness to assess permanent impairment 
 
            indicates that the restrictions imposed on the same date are 
 
            also permanent.  On September 26, 1989, Dr. Reagan's chart 
 
            notes reflect that, at defendant Cigna's request, he had 
 
            noted claimant's permanent partial impairment to equal seven 
 
            percent of each upper extremity.
 
            
 
                 Chart notes of January 11, 1990, reflect Dr. Reagan's 
 
            view that claimant has greater difficulty with the left 
 
            upper extremity than the right upper extremity.  He did not 
 
            indicate why each arm was given an identical impairment 
 
            rating.
 
            
 
                 Evaluating physician Bashara diagnosed bilateral ulnar 
 
            neuropathy at the elbow, right carpal tunnel and ulnar 
 
            tunnel nerve compressions with mild restriction of motion at 
 
            the left elbow and wrist and left ulnar tunnel and median 
 
            nerve compression at the wrist with mild to moderate 
 
            restriction of motion at the elbow and wrist.  He assessed 
 
            claimant as having sustained an eight percent permanent 
 
            partial impairment of the right upper extremity and an 
 
            eleven permanent partial impairment of the left upper 
 
            extremity.
 
            
 
                                conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 As has been seen, the only issue to be determined is 
 
            the extent of permanent disability.
 
            
 
                 Dr. Reagan, the treating surgeon, initially imposed an 
 
            eight percent permanent partial impairment of the whole 
 
            person.  Under Iowa law, this would entitle claimant to 40 
 
            weeks of benefits.  He then re-assessed claimant as having 
 
            sustained a seven percent permanent partial impairment of 
 
            each arm.  Dr. Reagan does not state why he lowered his 
 
            initial impairment rating.  If claimant's condition 
 
            improved, there may well be entitlement to additional 
 
            healing period benefits.  Furthermore, Dr. Reagan's 
 
            assessment does not seem consistent with his recognition 
 
            that claimant's symptomatology is worse on the left side 
 
            than the right.
 
            
 
                 Dr. Bashara assesses eight percent and eleven percent 
 
            impairments to the right and left arms, respectively.  While 
 
            this is not greatly dissimilar to the impairment rating 
 
            assessed by Dr. Reagan, it is more persuasive because it 
 
            takes into account the greater severity of claimant's 
 
            symptoms on the left side and seems more consistent with the 
 
            physical restrictions imposed by Dr. Reagan ("no repetitive 
 
            activities and avoidance of heavy lifting") and claimant's 
 
            reported degree of residual symptomatology.  It is held that 
 
            claimant sustained disability equivalent to eleven percent 
 
            of the left arm and eight percent of the right arm.  
 
            Pursuant to Iowa Code section 85.34(2)(s), the loss of two 
 
            arms is compensated as a proportion of 500 weeks.  Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983).  According 
 
            to the American Medical Association Guides to the Evaluation 
 
            of Permanent Impairment, an eight percent upper extremity 
 
            impairment is equivalent to a five percent impairment of the 
 
            whole person, while an eleven percent upper extremity 
 
            impairment is equivalent to a seven percent body as a whole 
 
            impairment.  The combined values chart indicates that two 
 
            such whole body impairments are equivalent to a combined 12 
 
            percent impairment of the body as a whole.  Twelve percent 
 
            of 500 weeks is 60 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant forty point seven 
 
            one four (40.714) weeks of healing period benefits as 
 
            stipulated at the rate of three hundred fifty-four and 
 
            05/100 dollars ($354.05) per week and totalling fourteen 
 
            thousand four hundred fourteen and 79/100 dollars 
 
            ($14,414.79).
 
            
 
                 Defendants shall pay unto claimant sixty (60) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of three hundred fifty-four and 05/100 dollars ($354.05) per 
 
            week commencing July 15, 1989 and totalling twenty-one 
 
            thousand two hundred forty-three and 00/100 dollars 
 
            ($21,243.00).
 
            
 
                 Defendants shall have credit for all benefits 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            voluntarily paid.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            compliance with this decision pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. I. John Rossi
 
            Attorney at Law
 
            203 Skywalk
 
            7th and Walnut
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Roy M. Irish
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 2901
 
                           Filed April 29, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOREN A. BROMMEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 904291
 
            SANCHEZ STRUCTURES, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2901
 
            Where claimant failed to appear at hearing for reasons 
 
            unknown, request to dismiss without prejudice was denied 
 
            under Iowa Rule of Civil Procedure 215.
 
            
 
            5-1803
 
            Bilateral arm impairment was compensated under 85.34(2)(s).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SALLY ANN POWELL, Surviving   :
 
            Spouse of Ernest Thomas       :         File No. 904855
 
            Powell, and LUCY ANNA POWELL  :
 
            and ANTHONY EUGENE POWELL     :          A M E N D E D
 
            Minor Children of Ernest      :
 
            Thomas Powell,                :             A N D
 
                                          :
 
                 Claimant,                :      S U B S T I T U T E D
 
                                          :
 
            vs.                           :         D E C I S I O N
 
                                          :
 
            K & B TRANSPORTATION, INC.,   :              O N
 
                                          :
 
                 Employer,                :      C O M M U T A T I O N
 
                                          :
 
            and                           :             A N D
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :         P A R T I A L
 
                                          :
 
                 Insurance Carrier,       :      C O M M U T A T I O N
 
                 Defendants.              :
 
            ______________________________:
 
                                          :
 
            JOE POWELL,                   :
 
                                          :
 
                 Claimant--Intervenor,    :
 
            ___________________________________________________________
 
            
 
                 On December 20, 1989, Sally Ann Powell (claimant) filed 
 
            a petition for commutation of benefits due her as a result 
 
            of the death of her husband, Earnest T. Powell, on July 28, 
 
            1988.  K & B Transportation (K & B) was identified as 
 
            employer and Cigna was identified as the workers' 
 
            compensation insurer for K & B. (collectively defendants).  
 
            On May 7, 1991, these matters came on for hearing in Des 
 
            Moines, Iowa.  The parties appeared as follows:  the 
 
            claimant in person and by her counsel Lawrence Bihlmeyer of 
 
            Rapid City, South Dakota and Lorraine May of Des Moines, 
 
            Iowa and K & B and Cigna by their counsel Charles Cutler of 
 
            Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant.  
 
            
 
                 2.  Joint exhibits 1-6.
 
            
 
                       
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            Ernest T. Powell (Powell) and K & B at the time of Powell's 
 
            death.
 
            
 
                 b.  Powell's death arose out of and in the course of 
 
            employment.
 
            
 
                 c.  The work injury caused Powell's death.
 
            
 
                 d.  Death benefits became due on July 29, 1988.
 
            
 
                 e.  The rate of compensation, is $309.45 per week. 
 
            
 
                 f.  Defendants have paid 144 weeks of workers' 
 
            compensation benefits to claimant at the rate of $309.45 per 
 
            week prior to hearing.
 
            
 
                 g.  That there are no bifurcated claims.
 
            
 
                                      Issues
 
            
 
                 1.  Whether Joe Powell, Lucy Powell or Anthony Powell 
 
            are dependents of Ernest T. Powell.
 
            
 
                 2.  Whether a full commutation is in the best interest 
 
            of claimant.
 
            
 
                 3.  Whether claimant is entitled to a partial 
 
            commutation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  On July 28, 1988, Ernest T. Powell was killed in a 
 
            motor vehicle accident in Scott County, Iowa.  Powell's 
 
            death arose out of and in the course of his employment with 
 
            K & B Transportation.  As a result of his death, claimant, 
 
            aged 44 at the time, became entitled to workers' 
 
            compensation benefits at the rate of $309.45 per week.  
 
            Powell and claimant had two minor children at the time of 
 
            Powell's death.  They were identified as Lucy Anna Powell 
 
            and Anthony Eugene Powell.  Claimant's benefits commenced on 
 
            July 29, 1988, and have continued on a weekly basis since 
 
            that time.  As of May 1, 1991, total benefits paid equaled 
 
            $44,251.35.
 
            
 
                 2.  At the time of Powell's death, he had other living 
 
            children by a first wife.  These children were Haley B. 
 
            Powell and Joe Thomas Powell.  At the time of Powell's 
 
            death, Joe Powell was 28 years old.  He was fully employed 
 
            by the Federal Correction Institution in Lexington, 
 
            Kentucky.  Joe Powell was physically not working when his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            father died.  He was on a medical leave of absence from his 
 
            employment for problems he was experiencing with his 
 
            kidneys.  While on medical leave, Joe Powell did not lose 
 
            any income and his time off work was sanctioned by his 
 
            employer.  Joe Powell subsequently returned to work on 
 
            January 1, 1989, and is currently employed as an employee of 
 
            the Federal Correction Institution in Sandstone, Minnesota.  
 
            Joe Powell did not receive any financial support from Powell 
 
            in 1988 and there is no evidence that Joe Powell was in any 
 
            way financially dependant upon Ernest Powell.  Consequently, 
 
            the undersigned specifically finds and affirms the Motion 
 
            for Summary Judgment that was granted on April 2, 1991.  Joe 
 
            Powell is not a dependant of Powell.
 
            
 
                 3,  Lucy Anna Powell and Anthony Eugene Powell have 
 
            both reached the age of majority and are not financially 
 
            dependant at this time upon their mother, claimant.  Lucy 
 
            Powell is 20 years old.  Anthony Powell is nineteen years 
 
            old.  There is no evidence in the record that shows that 
 
            either of these individuals are full time students.  There 
 
            is no evidence in the record that shows that either of these 
 
            individuals are physically or mentally incapacitated from 
 
            earning a living.  Consequently, Lucy Anna Powell and 
 
            Anthony Eugene Powell are not dependants in accordance with 
 
            Iowa Code section 85.31 (1991).
 
            
 
                 4.  Claimant did not indicate what her educational 
 
            background was or whether she was a high school graduate.  
 
            Claimant indicated that she is seeking a commutation because 
 
            she has a current need for some of the funds that would be 
 
            available to her from a lump sum payment.  Claimant has 
 
            indicated that she has two medical problems which require 
 
            attention.  She has a small hiatal hernia which requires 
 
            repair and she is suffering from some intermittent vaginal 
 
            bleeding which may require dilatation and curettage to solve 
 
            this problem.  Claimant indicated that her financial 
 
            resources are such that without a lump sum settlement she 
 
            cannot afford to have these procedures done.
 
            
 
                 5.  Additionally, claimant wants to use $25,000 to 
 
            purchase a home in Worthville, Kentucky.  She wants to 
 
            relocate to Worthville because she has other children and 
 
            grandchildren located in the area.  Claimant does not have 
 
            reliable transportation currently and believes that she 
 
            could purchase a car for approximately $5,000.  Finally, 
 
            claimant explained that if she were able to get her medical 
 
            problems under control, she would be able to seek 
 
            employment.  Claimant has worked in a limited capacity since 
 
            the death of her husband.  She does woodworking, she has 
 
            cooked for the Salvation Army and she has worked as a 
 
            manager for Community Action.  She was making $4.25 per 
 
            hour.  Claimant left this work because it was heavy work and 
 
            was causing her health problems.  Claimant supplements her 
 
            income with her workers compensation benefit checks.  
 
            Claimant's net check each month is $928.35 per month.
 
            
 
                 6.  With the balance of the commuted funds, a sum that 
 
            claimant estimates to be approximately $86,000 after the 
 
            payment of these expenses and attorney fees, claimant 
 
            intends to invest the remainder in a mutual fund known as 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            United High Income II Plan (The Fund) managed and developed 
 
            by Waddell & Reed, a financial services company with offices 
 
            in Rapid City, South Dakota.
 
            
 
                 7.  The prospectus for the Fund indicates that the Fund 
 
            seeks a high level of current income by investing primarily 
 
            in a diversified portfolio of high yield, high risk, fixed 
 
            income securities.  The assets purchased by the Fund include 
 
            options or future contracts, puts and calls on options on 
 
            debts securities, common stocks, broadly based stock 
 
            indices, futures contracts relating to debt securities (debt 
 
            futures) or futures contracts on broadly based stock 
 
            indices.  The Fund can purchase repurchase agreements as 
 
            collateralized loans by the Fund.  It can purchase foreign 
 
            securities, and the Fund may lend securities for the purpose 
 
            of realizing income.  The Fund can also purchase high yield 
 
            debt securities to fund highly leveraged corporate 
 
            acquisitions and restructurings.
 
            
 
                 8.  While the Fund may yield high income, this return 
 
            is accompanied by significant risk to principal.  The 
 
            prospectus indicates that the risk of investing in the Fund 
 
            may be different or more pronounced than those involved in 
 
            the purchase of higher quality securities.  The high income 
 
            which the Fund seeks is paid by debt securities in the lower 
 
            rating categories of the established rating services or in 
 
            unrated securities which are, in the opinion of Waddell & 
 
            Reed, of similar quality to the rated debt securities held 
 
            by the Fund.  That is, the unrated securities are of a 
 
            quality equivalent to the securities held by the Fund; B 
 
            grade investments or lower.  The majority of securities 
 
            purchased by the Fund are rated as B grade investments or 
 
            lower by Moody's or Standard and Poor's rating service.(1)  
 
            (1).  Debt that is rated at BB, B, CCC, CC, and C is 
 
            regarded, on balance, as predominantly speculative with 
 
            respect with to the capacity to pay interest and repay 
 
            principal in accordance with the terms of the obligation.  A 
 
            BB rating indicates the lowest degree of speculation and C 
 
            the highest degree of speculation.  This debt may have some 
 
            quality and protective characteristics but these are 
 
            outweighed by the larger uncertainties or major risk 
 
            exposure to adverse conditions.
 
                 Debt rated at B has a greater vulnerability to default 
 
            but currently has capacity to meet interest payments and 
 
            principal payments.  A debtor who faces adverse business, 
 
            financial or economic conditions will likely impair the 
 
            capacity or willingness to pay interest and repay principal.  
 
            The B rating category is used for debts subordinated to 
 
            senior debt that is assigned an actual or implied BB or BB- 
 
            rating.  
 
                 Debt rated CCC has a currently indefinable 
 
            vulnerability to default and is dependent upon favorable 
 
            business, financial and economic conditions to meet timely 
 
            payment of interest and repayment of principal.  In the 
 
            event of adverse business, financial, or economic 
 
            conditions, it is not likely to have the capacity to pay 
 
            interest and repay principal.  The CCC rating category is 
 
            also used for debt subordinated to senior dept that is 
 
            assigned an actual or implied B or B- rating.
 
                 A CC rating is typically applied to debt subordinated 
 
            to senior debt which is assigned an actual or implied CCC 
 
            rating.
 
                 A C rating is applied to debt subordinated to senior 
 
            debt which is assigned an actual implied CCC- debt rating.  
 
            The C rating may be used to cover situations where a 
 
            bankruptcy petition has been filed, but the debt service 
 
            payments have been continued.
 
                 A D grade debt is considered payment in default.  This 
 
            is used when interest payments or principals payments are 
 
            not made on the due date.  
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            During the Fund's fiscal year which ended on September 30, 
 
            1990, the percentage of the Fund's assets invested in debt 
 
            securities in each of the rating categories of Standard & 
 
            Poor's and the corporate debt securities not rated by an 
 
            established rating services, determined on a dollar weighted 
 
            average were as follows:
 
            
 
                         Rated by                   Percentage of
 
                      S&P                       Fund Assets
 
                      AAA                           9.0%
 
                      AA                            0.0
 
                      A                             0.0
 
                      BBB                           1.4
 
                      BB                            2.0
 
                      B                            29.6
 
                      CCC                           9.5
 
                      CC                            1.3
 
                      C                             0.0
 
                      D                             0.3
 
            
 
                           Unrated                      14.1
 
            
 
                 As of the September 30, 1990, prospectus, approximately 
 
            three percent of the Fund's assets were involved with 
 
            bankrupt companies.  Moreover, a review of the prospectus 
 
            and the annual report of the Fund from September of 1989 to 
 
            September of 1990, showed that the Fund had lost 18 percent 
 
            of its value.
 
            
 
                 9.  Regarding the value of the Fund, the Fund's 
 
            managers advised in the prospectus that past experience in 
 
            the Fund would probably not provide an accurate indicator of 
 
            future performance in this market particularly during 
 
            periods of economic recession.  An economic downturn or 
 
            increase in interest rates is likely to have a greater 
 
            negative affect on the Fund's ability to market its 
 
            holdings, the value of high yield debt securities in the 
 
            Fund's portfolio, the Fund's net asset value, the ability of 
 
            the bond's issuers to repay principal and interest, the bond 
 
            issuer's ability to meet projected business goals and obtain 
 
            additional financing when necessary.  The Fund's investments 
 
            might also result in a higher incidence of defaults than 
 
            with respect to higher rated securities.  The prospectus 
 
            further indicated that the prices of high yield securities 
 
            had declined substantially reflecting the expectation that 
 
            many of the issuers of the high yield securities may or will 
 
            experience financial difficulties.  The Fund is also subject 
 
            to market price volatility and limited liquidity in the 
 
            resale of some these assets.  Moreover, since the Fund has 
 
            invested in foreign securities, these securities may not be 
 
            redially liquidated because foreign securities are not 
 
            traded in the volume that U.S. securities are traded and the 
 
            audit and accounting practices in various countries are not 
 
            as rigid as those in the U.S.  All of these factors 
 
            contribute to a speculative investment that could lose 
 
            significant principal value.
 
            
 
                 10. The proceeds from the Fund are taxable.  Moreover, 
 
            the Fund is not guaranteed by the Federal Deposit Insurance 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Corporation.  Contrary to testimony at hearing, the 
 
            prospectus indicated that a management fee was charged to 
 
            shareholders on a a two tier basis.  The fee consists of a 
 
            specific fee which is computed on the Fund's net asset value 
 
            as of the close of each day at the annual rate of 0.15 of 1 
 
            percent of net assets and a group fee computed each day on 
 
            the combined net asset values of all of the funds in the 
 
            United Group.  The fee is accrued and paid on a daily basis.
 
            
 
                 11. Claimant's understanding of this Fund is minimal.  
 
            Claimant believes that her investment is spread over a large 
 
            number of corporate bonds so that her investment is more 
 
            secure than investing in one stock such as IBM.  Claimant 
 
            was also advised by Waddell & Reed that the past performance 
 
            of the Fund suggested that claimant would meet her monthly 
 
            income goal.  Claimant indicated that while she did not 
 
            understand how the Fund worked, she did understand that she 
 
            would receive a monthly income of approximately $800 per 
 
            month from the Fund.  Claimant did not know:
 
            
 
                 a.  Whether the $800 that she was to receive from 
 
                 the Fund would be taxable;
 
            
 
                 b.  What Waddell & Reed were going to charge when 
 
                 she invested this money;
 
            
 
                 c.  What it would cost to switch between various 
 
                 Funds managed by Waddell & Reed.
 
            12. Claimant had not looked at any other funds in order to 
 
            make a comparative judgment between the Fund and other 
 
            funds.  Additionally, it was apparent that the claimant did 
 
            not understand or recall much regarding the prospectus that 
 
            had been prepared for the Fund.  Claimant did explain that 
 
            she understands how the Fund is supposed to work based upon 
 
            explanations of Waddell & Reed representatives.
 
            
 
                 13. When claimant moves to Kentucky, it is her intent 
 
            after her medical problems are resolved to seek employment 
 
            in the Worthville area.  She intends to make applications in 
 
            the restaurant business when she is living fulltime in 
 
            Kentucky.
 
            
 
                 14. Claimant is relatively debt free.  She currently 
 
            does not own her own home.  She is renting a house in Rapid 
 
            City, South Dakota.  Claimant's rent is approximately $450 
 
            per month.  The balance of her monthly workers' compensation 
 
            check covers her other living expenses.  Claimant has noted 
 
            that her utility bills are higher in the wintertime due to 
 
            cold weather.
 
            
 
                 15. Claimant is also seeking this commutation so that 
 
            she will have an estate at the time of her death.  She 
 
            understands that without the commutation the workers' 
 
            compensation benefits would terminate at the time of her 
 
            death and she would be able to leave nothing to her heirs.
 
            
 
                 16. Claimant understands that an investment in a mutual 
 
            fund like the Fund does not guarantee a monthly income 
 
            payment.  She also understands that the Fund is subject to 
 
            value fluctuation.  She believes that she would be able to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            remove money from the Fund before serious harm occurred to 
 
            the principal balance of her investment.  She also 
 
            understands that the Fund is not tax free and that she will 
 
            have to pay taxes on the dividends.  Claimant believes that 
 
            a full commutation is more valuable than a partial 
 
            commutation because the full commutation will allow her to 
 
            pay for the things that she needs currently and provide a 
 
            steady stream of income for the remainder of her life.  
 
            Claimant understands that there are certain risks attached 
 
            to this type of investment however, she is willing to 
 
            undertake those risks.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  Whether Joe Powell, Lucy Powell or Anthony Powell 
 
            are dependants of Ernest T. Powell.
 
            
 
                 The question of whether the children of Ernest T. 
 
            Powell are dependents is a fairly straight forward question 
 
            to determine.  The analysis is guided by the dependency 
 
            provisions of Iowa Code section 85.31, 85.42, 85.43 and 
 
            85.44 (1991).  These provisions provide the frame work for 
 
            determining whether a person is a dependent for the purposes 
 
            of worker's compensation benefits.
 
            
 
                 Dependency, according to the Iowa Supreme Court has a 
 
            broader meaning than just the dictionary meaning of 
 
            dependency.  Murphy v. Franklin County, 145 N.W.2d 465, 468 
 
            (Iowa 1966).  In Murphy, the Court found that a showing of 
 
            actual dependency does not require proof that, without 
 
            decedent's contributions, claimant would have lacked the 
 
            necessaries of life.  The test is whether the decedent's 
 
            contributions were relied on by claimant to maintain 
 
            claimant's accustomed standard of living.  Even if the 
 
            dependent has income from other sources, the individual may 
 
            be a dependent if the decedent's contributions were made for 
 
            the ordinary comforts and conveniences which are reasonably 
 
            appropriate to the parties in their station in life.  These 
 
            contributions should be considered as support and the 
 
            recipient regarded as a dependent.  Lighthill v. McCurry, 
 
            122 N.W.2d 468, 471 (Neb. 1963);  2A Larson, Workmen's 
 
            Compensation Law, section 63.11(b) (1990).
 
            
 
                 A declaratory ruling by Industrial Commissioner Robert 
 
            E. Landess in Stromley v. Iowa Packaging Corp., File No. 
 
            652607, Slip op. (Iowa Ind. Comm'r Dec. Rul.  May 2, 1985) 
 
            is also helpful in determining dependency.  The Commissioner 
 
            noted:
 
            
 
                 . . . a child under the age of eighteen is no 
 
                 longer entitled to benefits upon reaching age 
 
                 eighteen unless he or she was mentally or 
 
                 physically incapacitated from earning at the time 
 
                 of the death or can show in fact dependency.  
 
                 Dependency is established as of the time and under 
 
                 the conditions present at the time of the 
 
                 triggering event-the injury producing death.  In 
 
                 order for a person to receive benefits for being 
 
                 dependent they must be able to show that condition 
 
                 of dependency present at the time of the injury 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 and continuing in an unbroken chain.  A full time 
 
                 student under age twenty-five is aided by a 
 
                 rebuttable presumption of actual dependency.
 
            
 
                    One cannot flitter in and out of the condition 
 
                 of dependency.  Just as a spouse cannot 
 
                 reestablish dependency after remarriage by a 
 
                 subsequent dissolution, a dependent child once no 
 
                 longer actually dependent cannot reestablish 
 
                 dependency by deciding to go to school, for 
 
                 example, at age 24 after having been independent 
 
                 and self-supporting for several years.
 
            
 
                    In order to continue to be entitled to benefits 
 
                 either child must show a continuation of actual 
 
                 dependency from the date of the injury.  One 
 
                 cannot flow in and out of dependency as the 
 
                 duration of benefits terminates when actual 
 
                 dependency terminates.  Once concluded for the 
 
                 purpose of these statutes it cannot be reinstated.
 
            
 
                 In the case at hand, Joe Powell was not a dependent at 
 
            the time of his father's death.  First, he was age 28 at the 
 
            time of his father's death.  Therefore, Joe Powell is not 
 
            entitled to any presumption that he was a dependent of 
 
            Powell at the time of Powell's death.  Second, there is no 
 
            evidence in the record to support Joe Powell's claim of 
 
            dependency.  He was fully employed at the time his father 
 
            died, though he was on long-term medical leave from the 
 
            Federal Corrections Institution (FCI) in Lexington, 
 
            Kentucky.  During his leave, Joe Powell received his full 
 
            wages.  Joe Powell returned to full-time employment with FCI 
 
            and remains employed with that employer.  Finally, the 
 
            motion for partial summary judgment resolved the issue of 
 
            Joe Powell's dependency and is not subject to reversal by 
 
            another deputy.
 
            
 
                 Lucy Powell and Anthony Powell were dependents of 
 
            Powell at the time of his death.  However, their dependency 
 
            status has not continued because they have both reached the 
 
            age of majority.  There is no evidence in the record that 
 
            shows that these individuals are full time students or are 
 
            incapacitated.  Consequently, Lucy Powell and Anthony Powell 
 
            are no longer dependents of Powell.
 
            
 
                 2.  Whether a full commutation is in the best interest 
 
            of the claimant.
 
            
 
                 The primary focus of this dispute is whether the 
 
            commutation proposed by the claimant is in her best 
 
            interest.  Claimant contends that the expenditure of funds 
 
            for medical services, the purchase of a new car, the 
 
            purchase of a new home, the expense of moving, the payment 
 
            of attorney fees, the creation of an estate  and investment 
 
            in a managed fund are all good reasons to commute her death 
 
            benefits to a present value.  Defendants urge that claimant 
 
            does not have the ability to manage a large lump sum payment 
 
            of cash that is intended to supply her with benefits for the 
 
            rest of her life.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Iowa Code section 85.45 (1991) provides that a 
 
            commutation may be ordered when the commutation is shown to 
 
            be in the best interests of the person or persons entitled 
 
            to the compensation.  Diamond v. The Parsons Co., 129 N.W.2d 
 
            608, 616 (1964).  The factors relied on in determining if a 
 
            commutation is in the claimant's best interests include:  
 
            1.  The claimant's age, education, mental and physical 
 
            condition, and actual life expectancy; 
 
            2.  The claimant's family circumstances, living 
 
            arrangements, and responsibilities to dependents; 
 
            3.  The claimant's financial condition, including all 
 
            sources of income, debts, living expenses; 
 
            4.  The reasonableness of claimant's plans for the commuted 
 
            funds;
 
            5.  Claimant's ability to manage the funds or arrange for 
 
            someone else to manage them.  
 
            
 
            Dameron v. Neumann Bros., Inc., 339 N.W.2d 160, 164 (Iowa 
 
            1983).  
 
            
 
                 Ultimately, the analysis that is employed in the 
 
            decision whether to allow a commutation uses as its 
 
            fundamental touchstone the best interests of the claimant.  
 
            Within that context, a benefit-detriment analysis is 
 
            employed, balancing the above recited factors with the 
 
            claimant's preference and the benefits to the claimant of 
 
            receiving a lump sum payment against the potential 
 
            detriments that would result if the claimant invested 
 
            unwisely, spent foolishly, or otherwise wasted the fund, to 
 
            the point where the fund no longer provided the wage 
 
            substitute intended by the workers' compensation law.  
 
            Dameron, 339 N.W.2d at 164-65.  The Division does not act 
 
            an unyielding conservator of claimant's property and 
 
            disregards the claimant's desires and reasonable plans for 
 
            the use of the commuted funds just because success in the 
 
            future is not assured.  Diamond, 129 N.W.2d at 617; Dameron, 
 
            339 N.W.2d at 163-64.  The Division has consistently 
 
            followed the rationale in these cases and has used a 
 
            reasonableness test to approve or disapprove commutations.  
 
            Paulsen v. Central States Power, LTD, II Iowa Industrial 
 
            Commissioner Report  304 (App. 1982); Finn v. Gee Grading 
 
            and Excavating, Inc., II Iowa Industrial Commissioner Report 
 
            152, 153 (App. 1981); Smith v. Fegles Power Systems, Inc., 
 
            IV Iowa Industrial Commissioner Report 338, 339 (App. 1984); 
 
            
 
                 In this instance, claimant proposes to use the commuted 
 
            funds to purchase medical services, a house, a car, and 
 
            shares in a mutual fund.  Additionally, claimant seeks to 
 
            pay her attorney and establish an estate for her heirs.  The 
 
            vast portion of this award will be invested in a mutual fund 
 
            that is by it terms highly speculative and contemplates a 
 
            loss of not only income but principal as well. 
 
            
 
                 Claimant does not understand how the Fund works or the 
 
            fact that it is highly speculative.  Claimant did not know, 
 
            for example, that the Fund lost value between 1989 and 1990.  
 
            Claimant explained that reading the material in the 
 
            prospectus was difficult for her, but if someone explained 
 
            how the Fund worked, she could understand it.  Claimant had 
 
            not looked at any other mutual funds before she decided to 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            invest in the Fund.  Claimant has been advised by a 
 
            financial advisor who is selling its own product.  The 
 
            financial advisor told claimant that investing in this Fund 
 
            would be a better investment than purchasing IBM because the 
 
            investment would be more diverse and thereby subject the 
 
            investment to less market risk and price fluctuation.  This 
 
            explanation presumes that the quality of the investments are 
 
            equivalent.  However, comparing the purchase of this Fund to 
 
            a purchase of IBM stock is an invalid comparison.  While a 
 
            single investment in IBM is subject to market risk and price 
 
            fluctuation because the investment lacks diversity, the 
 
            investment is not considered a high risk investment because 
 
            IBM has not been rated as a B grade investment.  The Fund 
 
            the claimant proposes to use has 80 percent of the principal 
 
            of the Fund invested in B grade investments, unrated 
 
            investments or lower grade investments.  According to both 
 
            Standard & Poor's rating service and Moody's rating service, 
 
            this results in a high risk investment that can net high 
 
            returns with a substantial risk to income and principal.  
 
            Claimant's testimony shows that she does not understand the 
 
            nature of this risk.  Claimant does not regularly follow the 
 
            market the Fund invests in.  She would have to rely on 
 
            Waddell & Reed for guidance in making the decision to move 
 
            her money fast enough to avoid a precipitous fall in value.  
 
            There is insufficient evidence in the record to show that 
 
            Waddell & Reed have undertaken this responsibility.  If 
 
            claimant invests in this Fund, she will be at the mercy of 
 
            the market.
 
            
 
                 The information in the prospectus supports this 
 
            conclusion.  Based on the September 1990 prospectus, if 
 
            claimant invests in this Fund, she would purchase shares in 
 
            a Fund which has three percent of its assets invested in 
 
            bankrupt companies.  Twenty-nine per cent of the Fund is 
 
            invested in B grade investment vehicles.  Fourteen percent 
 
            of the Fund is invested in unrated investments.  The Fund 
 
            managers indicate that the Fund will not do well during 
 
            periods of recession.  The Fund has lost significant value 
 
            between 1989 and 1990.  
 
            
 
                 Claimant also understands that she will be receiving a 
 
            net monthly payment that is less than she is currently 
 
            receiving now.  Claimant's net payment will be reduced 
 
            further because the monthly income from this Fund is taxable 
 
            to her.  While claimant is a good money manager in that she 
 
            has few debts, in making decisions regarding this Fund, 
 
            claimant has demonstrated that she has no understanding of 
 
            the risk she will be taking on by investing in this Fund.  
 
            Claimant currently has no source of income other than wages 
 
            from occasional labor and the weekly workers compensation 
 
            check.  Over the course of a year, claimant will receive 
 
            approximately 7.25 percent less income as a result of the 
 
            investment in the Fund.  There is no evidence in the record 
 
            that Claimant's investment will approximate her current 
 
            monthly payment.
 
            
 
                 Based on all the evidence adduced at the time of 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            hearing, the undersigned cannot conclude that this 
 
            investment is in the best interest of the claimant.  As a 
 
            result, the full commutation must be denied.
 
            
 
                 Additionally, the claimant sought a commutation for the 
 
            purpose of establishing an estate.  While the Supreme Court 
 
            has not addressed this issue directly, it has observed that 
 
            a ground for denying a commutation exists where the request 
 
            for a commutation is for the purpose of leaving an estate.  
 
            Dameron, 339 N.W.2d at 166.  The primary reason for denying 
 
            the commutation is grounded in the risky investment the 
 
            claimant has proposed.  However, this additional ground 
 
            exists for denying the commutation as well.
 
            
 
                 3.  Whether claimant is entitled to a partial 
 
            commutation.
 
            
 
                 In the alternative, claimant contends that she is 
 
            entitled to a partial commutation totalling $61,740.81.  
 
            Claimant proposes to use these funds to purchase the 
 
            following items:
 
            
 
                 ITEM                          COST
 
            
 
            Car                      $5,000.00
 
            Home in Kentucky              25,000.00
 
            Medical Services               2,000.00
 
            Attorney Fees                 29,740.81
 
            
 
                                TOTAL:    $61,740.81
 
            
 
            Defendants contend that claimant has not demonstrated that 
 
            she will be able to maintain her proposed asset purchases 
 
            and that she will have an income shortfall since, the weekly 
 
            payments will end before claimant is entitled to Social 
 
            Security benefits.  
 
            The law applicable to full commutations is equally 
 
            applicable to partial commutations and will be incorporated 
 
            here as if fully set out.  
 
            Partial or full commutations have been granted in the past 
 
            for a variety of things.  Snow v. Earl May Seed and Nursery 
 
            Co., 1 Iowa Industrial Commissioner Decisions 1078, 1081 
 
            (Arb. 1985)(Living expenses and medical services, full 
 
            commutation granted); Baldwin v. Carter-Waters Corporation, 
 
            II Iowa Industrial Commissioner Report 16 18 (Arb. 
 
            1981)(Commutation for payment of attorney fees is proper); 
 
            Larson v. Haag Drug, 1 Iowa Industrial Commissioner Report 
 
            201, 202 (Arb. 1980)(Window repair and medical bills, 
 
            partial commutation granted); Davis v. McAtee Tire Co., 34 
 
            Iowa Industrial Commissioner Biennial Report 83, 84 (Arb. 
 
            1979)(Begin a pest control business, partial commutation 
 
            granted). 
 
            The evidence is clear that claimant has sufficient ability 
 
            to manage money so that she can wisely purchase a car, a 
 
            home, medical services and pay her attorney.  Claimant has 
 
            demonstrated that she has sufficient skills in managing 
 
            money so as not to dissipate the lump sum payment before the 
 
            proposed purchases are accomplished.  Claimant has no 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            dependents at this point and is only responsible for 
 
            providing for her welfare.  Claimant has been employed in 
 
            the past and intends to return to the competitive labor 
 
            market once her medical problems are resolved. 
 
            Defendants contention that the commutation is unreasonable 
 
            because it will create a shortfall between the time that 
 
            claimant's last payment is made and the time that Social 
 
            Security benefits will begin  is without merit.  Claimant is 
 
            aware that she  will have a gap in her income and she is 
 
            willing to undertake that risk in order to maximize her 
 
            ability to live where she wants to live and resolve current 
 
            medical problems to enable her to return to the competitive 
 
            labor market.  Moreover , if the defendants' argument were 
 
            taken to the extreme no partial commutation would ever be 
 
            granted because there is a potential that there would always 
 
            be a gap in income coverage between the time the weekly 
 
            benefits end and the time Social Security benefits begin, 
 
            particularly for younger workers.  
 
            Defendants second argument relates to claimant's current 
 
            lack of employment and the accompanying lack of income from 
 
            any other source other than worker's compensation.  This 
 
            argument will also not carry the day.  Claimant has worked 
 
            in the past when her health allowed her to do so.  She has 
 
            indicated she will work again once her medical problems have 
 
            resolved.  It would be unreasonable to deny claimant the 
 
            opportunity to purchase medical services that would enable 
 
            her to return to gainful employment simply because she is 
 
            unemployed now.  
 
             Since the Division is not to act as an "unyielding 
 
            conservator" in overseeing claimant's expenditures, and 
 
            these purchases would enable the claimant to return to full 
 
            time employment in a region of the country where most of her 
 
            family is located, with reliable transportation, the 
 
            proposed expenditures are not unreasonable and the partial 
 
            commutation will be granted.  
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  That claimant's request for a full commutation is 
 
            denied.
 
            
 
                 2.  Claimant's request for a partial commutation in the 
 
            amount of $61,760.00 is granted.
 
            
 
                 2.  The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            Ms Lorraine J May
 
            Attorney at Law
 
            4th Floor Equitable Building
 
            Des Moines Iowa 50309
 
            
 
            Mr Lawrence Bihlmeyer
 
            Attorney at Law
 
            429 Quincy Street
 
            PO Box 8274
 
            Rapid City South Dakota 57709
 
            
 
            Mr Charles E Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines Iowa 50309
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       5-3303
 
                                       Filed March 20, 1992
 
                                       ELIZABETH A. NELSON
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         SALLY ANN POWELL, Surviving   :
 
         Spouse of Ernest Thomas       :       File No. 904855
 
         Powell, and LUCY ANNA POWELL  :
 
         and ANTHONY EUGENE POWELL     :        A M E N D E D
 
         Minor Children of Ernest      :
 
         Thomas Powell,                :            A N D
 
                                       :
 
              Claimant,                :     S U B S T I T U T E D
 
                                       :
 
         vs.                           :        D E C I S I O N
 
                                       :
 
         K & B TRANSPORTATION, INC.,   :             O N
 
                                       :
 
              Employer,                :     C O M M U T A T I O N
 
                                       :
 
         and                           :            A N D
 
                                       :
 
         CIGNA INSURANCE COMPANIES,    :         P A R T I A L
 
                                       :
 
              Insurance Carrier,       :      C O M M U T A T I O N
 
              Defendants.              :
 
         ______________________________:
 
                                       :
 
         JOE POWELL,                   :
 
                                       :
 
              Claimant--Intervenor,    :
 
         ___________________________________________________________
 
         
 
         5-3303
 
         Claimant, seeking a full commutation, did not show that the 
 
         proposed use of the funds was in her best interest.  Claimant 
 
         proposed to invest the majority of the funds from the commutation 
 
         in a mutual fund that invested in high risk, high yield 
 
         securities.  Three percent of the fund's holdings were in 
 
         bankruptcy.  The claimant did not understand how the fund worked 
 
         or that the fund anticipated that any investor could withstand 
 
         the significant risk of loss of principal and income associated 
 
         with the fund.  Consequently, the commutation was not approved.
 
         
 
         5-3303
 
         Claimant seeking a partial commutation for payment of medical 
 
         services, attorney fees, purchase of home and purchase of a car 
 
         was reasonable.  Claimant planned to move to Kentucky and had 
 
         investigated the housing market and job market.  Claimant 
 
         testified that she would return to the labor market as soon as 
 
         her medical problems were resolved.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         OTTO SCHNEIDER,           :
 
		                   :
 
              Claimant, 	   :
 
		                   :
 
		         vs.       :      File Nos. 904873,
 
                		   :       923601 & 923602
 
         PIEPER, INC.,  	   :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
                		   :
 
         CIGNA INSURANCE COMPANY,  :
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 21, 1991 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 November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Box 1087
 
         Keokuk, Iowa 52632-1087
 
         
 
         Mr. Craig A. Levien
 
         Ms. Vicki L. Seeck
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 20, 1991
 
            BYRON K. ORTON
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            OTTO SCHNEIDER,	      :
 
                      		      :
 
                 Claimant, 	      :
 
 		                      :
 
            		vs. 	      :       File Nos. 904873,
 
                      		      :        923601 & 923602
 
	            PIEPER, INC.,     :
 
		                      :          A P P E A L
 
                 Employer, 	      :
 
		                      :        D E C I S I O N
 
            		and           :
 
                      		      :
 
            CIGNA INSURANCE COMPANY,  :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            21, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            OTTO SCHNEIDER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 904873,
 
                                          :       923601 & 923602
 
            PIEPER, INC.,                 :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Otto 
 
            Schneider, claimant, against Pieper, Inc., employer 
 
            (hereinafter referred to as Pieper), and Cigna Insurance 
 
            Company, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of alleged injuries on December 
 
            1, 1988, December 14, 1988 and August 14, 1989.  On October 
 
            10, 1990, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Pieper at the time of the alleged injuries.
 
            
 
                 2.  If defendants are liable for the alleged injury of 
 
            December 14, 1988, claimant is entitled to temporary total 
 
            disability or healing period benefits from December 14, 1988 
 
            through January 17, 1989.
 
            
 
                 3.  If any of the injuries are found to have caused 
 
            permanent disability, the type of disability is an indus
 
            trial disability to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $100.85 for the alleged December 1988 injuries and $112.14 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            for the August 1989 alleged injury (using the commissioner's 
 
            rate booklet and the stipulations in the prehearing report).
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; and,
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Pieper as a welder/fabricator from 
 
            July 1983 until his termination in September 1989 after 
 
            reporting back to work following the work injury to 
 
            restricted duty.  Pieper is a farming corporation.  
 
            Claimant's employment at Pieper was rather informal.  
 
            Claimant admitted that he regularly worked less than 40 
 
            hours a week.  Claimant's supervisors at Pieper testified 
 
            that they wanted him to work more hours but claimant only 
 
            worked on average 26 hours a week in the six months prior to 
 
            the work injury.  Pieper's management stated at hearing that 
 
            claimant's failure to appear for less than 40 hours was 
 
            tolerated because claimant was a very good welder.
 
            
 
                 The evidence fails to show anything in particular hap
 
            pened on or about December 1, 1988 and no findings with 
 
            reference to this date will be made.
 
            
 
                 On or about December 14, 1988, claimant injured his low 
 
            back while hitching up a power generator to a pickup truck.  
 
            This injury arose out of and in the course of his employment 
 
            at Pieper.  Claimant said that his back felt like it 
 
            exploded.  Claimant was treated by Keith W. Riggins, M.D., 
 
            an orthopedic surgeon, who authorized 10 days off work and 
 
            prescribed rest and medication.
 
            
 
                 Dr. Riggins had previously diagnosed a prior existing 
 
            condition of claimant's low back termed "transitional verte
 
            bra following a back strain incident in December 1986."  
 
            Claimant was off work at that time for approximately 10 
 
            days.  Following recovery from this incident, Dr. Riggins 
 
            stated that, although claimant had not suffered any perma
 
            nent partial impairment from the injury, claimant would 
 
            experience episodes of back strain in the future with bend
 
            ing and lifting.  He suggested that claimant refrain from 
 
            lifting over 20 pounds at the time.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that following his recovery from the 
 
            December 14, 1988 injury, claimant returned to work and, 
 
            after two weeks, he resumed full duty as a welder.  Claimant 
 
            stated that he had no problems until his next injury in 
 
            August of 1989.
 
            
 
                 Claimant injured his low back again on August 14, 1989, 
 
            while fabricating metal doors to be used on a small dam on a 
 
            Pieper farm.  This injury also arose out of and in the 
 
            course of his employment at Pieper.  There is some confusion 
 
            as to when this injury actually occurred but August appears 
 
            to be the time when it most likely occurred.  Claimant was 
 
            again treated by Dr. Riggins who took claimant off work and 
 
            diagnosed a bulging disc at the L4-5 level of claimant's 
 
            lower spine.  Dr. Riggins has opined that claimant reached 
 
            maximum healing from this injury on September 18, 1989, at 
 
            which time he released claimant to return to work.  Dr. 
 
            Riggins also stated at that time that claimant was very sus
 
            ceptible to recurrences of episodes of low back sprain.  
 
            Claimant was then only released to work with restrictions 
 
            against repeated bending and lifting by Dr. Riggins.  
 
            Claimant reported back to work to Pieper who subsequently 
 
            terminated claimant.  Claimant has not worked since and 
 
            stated that he has made an unsuccessful attempt to look for 
 
            replacement employment in the area of his residence since 
 
            that time.
 
            
 
                 After this matter was set for hearing, defendants made 
 
            an attempt to return claimant to work at Pieper.  Claimant 
 
            was sent for a capabilities evaluation to the University of 
 
            Iowa Hospitals and Clinics, Spinal Diagnostic Center.  
 
            According to this Center, claimant should not lift over 50 
 
            pounds and no more than 25 pounds on a repeated basis.  They 
 
            also stated that claimant needs to lose weight and would 
 
            benefit from a physical conditioning program.  The Center 
 
            stated that claimant appeared motivated during the evalua
 
            tion and a clinical psychologist stated that claimant's 
 
            future horizons appear pretty limited.
 
            
 
                 On August 8, 1990, claimant was offered a job at Pieper 
 
            within the restrictions imposed by the Center.  Claimant 
 
            responded by personally appearing at Pieper's farm stating 
 
            that he would be willing to return to work but would prefer 
 
            higher wages and a job other than a welder.  A second letter 
 
            was sent to claimant on August 14, 1990, offering the same 
 
            pay of $5.00 an hour and the same job as a welder.  This 
 
            employment was to begin on September 1, 1990, but claimant 
 
            was to respond by August 20, 1990, if the offer is being 
 
            accepted.  Claimant failed to respond within the time frame 
 
            set by Pieper.  On August 30, 1990, in a letter dated August 
 
            13, 1990, claimant mailed a letter accepting the job in 
 
            writing.  When claimant called after mailing this letter, he 
 
            was informed by Pieper that the job had already been filled 
 
            by another person.  Claimant disputes the fact that this job 
 
            was given to someone else and points to recent advertising 
 
            by Pieper with Job Services for a welder.  In cross-examina
 
            tion, Pieper manager, Michael Pieper, testified that this 
 
            advertising was old.  However, he appeared to recant this 
 
            testimony during cross-examination when he was informed that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Job Service's representatives would be testifying at hear
 
            ing.  It appears to the undersigned that, unfortunately, 
 
            neither Pieper nor claimant were committed to a return to 
 
            work.  Claimant certainly missed the stated deadlines but 
 
            Pieper was all-too-quick to retract the employment offer.  
 
            Claimant's lack of timely response was not that unusual or 
 
            unexpected given claimant's lackadaisical attitude over the 
 
            years toward his Pieper employment which, prior to the last 
 
            work injury, had been tolerated by Pieper.  Obviously, 
 
            Pieper was reluctant to return a disabled claimant to work 
 
            despite his welding skills.  The timing of the offer immedi
 
            ately prior to the hearing also is a factor in the decision 
 
            that this offer may have been only posturing for the hear
 
            ing.  Claimant, in turn, was also reluctant to return to a 
 
            job that would risk future injury such as in welding.  He 
 
            also did not appear highly motivated to return to work at 
 
            Pieper.
 
            
 
                 It could not be found that the work injury of December 
 
            14, 1988, resulted in permanent partial impairment or loss 
 
            of earning capacity.  Claimant had returned to work to full 
 
            duty without loss of earnings prior to the injury of August 
 
            14, 1989.
 
            
 
                 As a result of the work injury of August 14, 1989, 
 
            claimant has suffered a significant permanent partial 
 
            impairment to the body as a whole.  Claimant is permanently 
 
            restricted from activity consisting of no lifting over 50 
 
            pounds and no repetitive lifting over 25 pounds with limited 
 
            forward bending and stooping.  Claimant's primary treating 
 
            physician, Dr. Riggins, in his deposition opined that 
 
            claimant has some extent of permanent partial impairment as 
 
            a result of this injury but that he could not give the exact 
 
            percentage without another examination.  Whether or not this 
 
            subsequent examination was actually performed is not avail
 
            able in the record of this case.  However, this is an indus
 
            trial disability case and the exact impairment rating is not 
 
            critical to an award of benefits for a loss of earning 
 
            capacity.
 
            
 
                 As a result of the work injury of August 14, 1989, 
 
            claimant has suffered a 40 percent loss of earning capacity.  
 
            Although claimant's medical condition before the work injury 
 
            was not excellent, he had no ascertainable functional 
 
            impairments or loss of earning capacity.  Claimant was able 
 
            to fully perform physical tasks involving his welding and 
 
            fabricating duties.  The fact that claimant was initially 
 
            terminated by Pieper is evidence that claimant has a signif
 
            icant disability in his ability to perform the job as a 
 
            welder at Pieper.  Regardless of the job offer by Pieper 
 
            shortly before the hearing, claimant remains unemployed with 
 
            significant restrictions against lifting as a result of the 
 
            work injury.  Claimant is a high school graduate with sig
 
            nificant welding skills that can only be used in light duty 
 
            work.  However, claimant is not highly motivated to return 
 
            to full time employment.  This lack of motivation is consis
 
            tent with his past employment history at Pieper.  Pieper, on 
 
            the other hand, has not made a strong effort to return 
 
            claimant to work in some sort of meaningful capacity.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, despite the indication that the 
 
            work injuries were disputed in the prehearing report, defen
 
            dants offered little evidence to suggest there is a factual 
 
            basis for their position.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant had 
 
            suffered a 40 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 200 weeks of permanent par
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 40 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34 from the 
 
            date of injury until claimant returns to work; until 
 
            claimant is medically capable of returning to substantially 
 
            similar work to the work he was performing at the time of 
 
            injury; or until it is indicated that significant improve
 
            ment from the injury is not anticipated, whichever occurs 
 
            first.  With reference to the December 14, 1988 injury, the 
 
            parties stipulated as to the extent of temporary total dis
 
            ability benefits and this will be awarded.  With reference 
 
            to the August 14, 1989 injury, it was found that claimant 
 
            was off work until he reached maximum healing on September 
 
            19, 1989.  Healing benefits will be awarded accordingly.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 1.  Defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred twelve and 14/l00 dollars ($112.14) per week 
 
            from September 19, 1989.
 
            
 
                 2.  Defendants shall pay to claimant temporary total 
 
            disability benefits from December 14, 1988 through January 
 
            17, 1989, at the rate of one hundred and 85/l00 dollars 
 
            ($100.85) per week and healing period benefits from August 
 
            14, 1989 through September 18, 1989, at the rate of one hun
 
            dred twelve and 14/l00 dollars ($112.14) per week.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fees paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. Craig A. Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed February 21, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            OTTO SCHNEIDER,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File Nos. 904873,
 
                      :       923601 & 923602
 
            PIEPER, INC.,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Extent of disability benefits.