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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY L. PRICE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  910370
 
            SIOUX TOOLS, INC.,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Larry L. 
 
            Price, claimant, against Sioux Tools, Inc., employer and CNA 
 
            Insurance, insurance carrier, defendants for benefits as the 
 
            result of an alleged injury which occurred on February 8, 
 
            1989.  A hearing was held at Sioux City, Iowa, on October 
 
            22, 1990, and the case was fully submitted at the close of 
 
            the hearing.  Claimant was represented by Harry H. Smith.  
 
            Defendants were represented by Michael P. Jacobs.  The 
 
            record consists of the testimony of Larry L. Price, 
 
            claimant; William Booe, plant superintendent; Don Campbell, 
 
            personnel director; joint exhibits 1 through 25 and 
 
            defendants' exhibits A through Z and AA.  The deputy ordered 
 
            a transcript of the hearing.  Both attorneys submitted a 
 
            brief description of the contentions of their respective 
 
            client at the time of the hearing.  Both attorneys submitted 
 
            excellent posthearing briefs.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 That the extent of entitlement to temporary disability 
 
            benefits, in the event defendants are found liable for the 
 
            injury, is stipulated to be from February 10, 1989 to 
 
            November 13, 1989; with two brief occasional gaps which were 
 
            not specified, but which were agreed to by the parties for 
 
            two different periods when claimant attempted to return to 
 
            work.
 
            
 
                 That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is 
 
            November 14, 1989.
 

 
            
 
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                 That the rate of compensation, in the event of an 
 
            award, is $263.30 per week.
 
            
 
                 That all requested medical benefits have been or will 
 
            be paid by defendants.
 
            
 
                 That defendants assert no claim for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That defendants paid claimant 37 weeks of temporary 
 
            workers' compensation benefits at the rate of $263.30 per 
 
            week prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on February 8, 
 
            1989, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether the injury was the cause of temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which he is entitled.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            his wrists, elbows, shoulders, neck and upper back on 
 
            February 8, 1989, which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 Claimant was employed by employer for approximately 20 
 
            years prior to the alleged injury.  Claimant testified that 
 
            he passed a pre-employment physical examination when he 
 
            began work.  Claimant denied and there was no evidence of 
 
            any prior injuries or problems with claimant's neck, back, 
 
            arms or hands (transcript pages 24 & 25).  Employer is in 
 
            the business of manufacturing hand tools and valve grinders 
 
            (tr. p. 25).  More specifically, they produce air and 
 
            electric hand tools, valve phased grinding machines and 
 
            related product lines (tr. p. 80).  Claimant and other 
 
            employees work on an incentive program (tr. pp. 26, 27, 80, 
 
            81 & 82).  Claimant described his work as subassembly work 
 
            in which he assembles small parts and then moves them down 
 
            the line (tr. p. 25).  He related that the work is not 
 
            heavy, but it is repetitive and requires the use of his 
 
            hands, arms and shoulders (tr. p. 26). 
 
            
 
                 Claimant testified that he either met or exceeded the 
 

 
            
 
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            incentive requirements until the middle or later part of 
 
            1988 at which time he experienced loss of strength in both 
 
            upper extremities and found that he could not meet the 
 
            incentive rates as easy as he previously did (tr. p. 26).  
 
            He mentioned this to his foreman and was moved to other jobs 
 
            which did not require reaching out with his upper 
 
            extremities or tightening movements with his hands and arms 
 
            (tr. p. 27).  Claimant related that he experienced pain on 
 
            the inside of his elbows which moved to his wrists, 
 
            shoulders, neck and across the back of his shoulders (tr. 
 
            pp. 28-30, 36, 37).  By mid-February of 1988, he experienced 
 
            a greater loss of strength and found that he could not lift 
 
            his arms (tr. pp. 30, 31, 33, 37).  Claimant testified that 
 
            his symptoms became the most severe while operating the 
 
            12685 palm sander (tr. pp. 31 & 62).
 
            
 
                 Claimant described his work as loading manufactured 
 
            pieces into fixtures and tightening and ratcheting them into 
 
            the fixture with his hands extended away from his body.  He 
 
            also knocked out flash, drilled holes with overhead drills 
 
            and installed a sleeve in the product.  He also pounded in 
 
            pins and pressed in bearings (tr. p. 31).  
 
            
 
                 William Booe, plant superintendent, testified that 
 
            employer's plant is machine intensive rather than labor 
 
            intensive (tr. p. 83).  Many of the machines are computer 
 
            operated (tr. p. 84).  He went through each of the 
 
            photographs and explained the operations that were performed 
 
            by claimant (exs. A-Z, tr. pp. 85-98).  Booe testified that 
 
            claimant worked on a total number of 20,753 separate parts 
 
            for employer in 1988, during 1,657 hours of employment which 
 
            resulted in 12.52 pieces per hour that claimant averaged in 
 
            1988 (tr. p. 104).  He showed some of the parts manufactured 
 
            and gave their weights and discussed the amount of 
 
            ratcheting, tightening and repetitiveness to the jobs that 
 
            claimant performed (tr. p. 111-121).
 
            
 
                 Employer sent claimant to see D.M. Youngblade, M.D., on 
 
            February 22, 1989 (ex. 1).  He ordered an EMG/NCV from B. 
 
            Krysztofiak, M.D., a physiatrist at the Marion Health 
 
            Center.  The first test on February 23, 1989 showed slowing 
 
            of conduction across the right wrist compatible with carpal 
 
            tunnel syndrome.  The ulnar nerve conduction was within 
 
            normal limits on each side.  The EMG demonstrated no 
 
            indication of superimposed cervical radiculopathy on each 
 
            side.  The doctor said that the patient's symptoms involving 
 
            his shoulder joints were suggestive of superimposed rotator 
 
            cuff tendonitis on each side right greater than left (ex. 
 
            2).  On February 22, 1989, Dr. Youngblade recorded, "Can't 
 
            use his arms, hands or shoulders-`can't lift a pencil'." 
 
            (ex. 1).  On March 3, 1989, Dr. Youngblade answered the 
 
            question, "Is this injury related to work?" with the word, 
 
            "yes."  (ex. 3).  After he saw claimant on March 15, 1989, 
 
            he recorded bursitis and myofascial syndrome and referred 
 
            claimant to Daniel J. Miller, M.D., a neurosurgeon.
 
            
 
                 An MRI on April 27, 1989, ordered by Dr. Miller showed:
 
            
 
                 (1) normal appearing cervical cord.
 
                 (2) no evidence of herniated disc. 
 

 
            
 
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                 (3) mild indentation against the spinal canal at the 
 
            4th and                           6th disc level, which may 
 
            be due to spurring with no             evidence of any 
 
            herniated disc.
 
            
 
            (exhibit 7)
 
            
 
                 The spurring appears to be somewhat speculative.  The 
 
            diagnostic arthrogram of the right shoulder on May 15, 1989, 
 
            was completely negative (ex. 10).
 
            
 
                 There are no medical reports, as such, from Dr. Miller, 
 
            but he did involve Kevin J. Liudahl, M.D., an orthopedic 
 
            surgeon, as a consultant (ex. 8).  A second EMG/NCV test by 
 
            Dr. Krysztofiak on May 9, 1989, reconfirmed mild carpal 
 
            tunnel syndrome of the right arm, but improved over the 
 
            previous test on February 23, 1989 (ex. 9).  Claimant had 
 
            been off work in between the two examinations.
 
            
 
                 On April 27, 1989, Dr. Liudahl diagnosed bilateral 
 
            subacromial bursitis, with possible small rotator cuff tear 
 
            on the right and bilateral early signs of carpal tunnel 
 
            disease worse on the right than the left.  On May 26, 1989, 
 
            Dr. Liudahl recommended against a carpal tunnel release 
 
            surgery.  A diagnostic right shoulder arthrogram on May 15, 
 
            1989, was negative (ex. 10). 
 
            
 
                 Employer allowed claimant to see his personal 
 
            physician, Vernon Helt, M.D., on June 26, 1989.  He found 
 
            claimant had shoulder strain from repetitive motion and 
 
            recommended less use of the right shoulder.  He imposed 
 
            several restrictions, to-wit, (1) no ratcheting, (2) no 
 
            arbor press work, (3) no pushing-pulling, (4) no heavy 
 
            lifting or lifting with arm away from the body and (5) no 
 
            continuous repetitive motion on use of the hands and 
 
            forearms (ex. 12).  Dr. Miller concurred in Dr. Helt's 
 
            restrictions (ex. 13).
 
            
 
                 Dr. Liudahl stated on July 18, 1989, "I believe that 
 
            this is related to the patient's employment and essentially 
 
            it falls into the category of over-use type syndrome." (ex. 
 
            14).  Claimant was then examined by R.F. Reeder, M.D., an 
 
            orthopedic surgeon, who administered a cervical myelogram 
 
            and CT scan of the cervical spine (ex. 15, pp. 1 & 2).  On 
 
            September 21, 1989, Dr. Reeder reported:
 
            
 
                 The patient's myelogram demonstrated minimal 
 
                 ventral effacement of the subarachnoid space at 
 
                 C4-5 and 5-6 due to an osseous ridge, but no 
 
                 evidence of herniated disc material.  This was 
 
                 confirmed with the CT scan showing no evidence of 
 
                 herniated disc, although there was minimal 
 
                 bilateral foraminal encroachment at C4-5 by these 
 
                 ridges.  These were not significant enough to 
 
                 warrant surgical decompression.  His problems 
 
                 persist.  His pain is not severe when he is not 
 
                 working.
 
            
 
            (exhibit 16)
 
            
 

 
            
 
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                 Dr. Reeder concluded: 
 
            
 
                 IMPRESSION:
 
            
 
                 The patient has some chronic brachialgia of an 
 
                 undetermined cause.  I suspect this is a 
 
                 mechanical sprain or strain type injury which is 
 
                 worsened by any kind of work activity.  Presently, 
 
                 the patient does not have any objective 
 
                 abnormalities, with the exception of a mild right 
 
                 carpal tunnel syndrome.  This is not bothering him 
 
                 to any great extent.  In my opinion the patient's 
 
                 elbow and arm pain would not improve with release 
 
                 of the carpal tunnel, and I therefore would not 
 
                 recommend it.
 
            
 
            (exhibit 16)
 
            
 
                 He finished his report by stating, "I suspect the 
 
            patient would benefit from retraining in order to perform a 
 
            job which would limit his activity about the shoulders." 
 
            (ex. 16).
 
            
 
                 On October 2, 1989, Dr. Youngblade wrote:
 
            
 
                 With all of the combinations of physical and 
 
                 chemical studies that have been carried out on 
 
                 this patient nothing from a true objective 
 
                 standpoint has been proven or disproven referrable 
 
                 to his neck, upper back, shoulders and general 
 
                 neurologic examination.
 
            
 
                 The patient has shown only subjective findings and 
 
                 it is the feeling of the neurologist and myself 
 
                 that this patient should be tried back at routine 
 
                 work and activity.
 
            
 
                 It is suggested that he could be limited to 25 
 
                 lbs. or less of lifting and decrease his twisting 
 
                 or ratcheting with his hands to some degree, but 
 
                 otherwise should be able to do the type of work 
 
                 that he has attempted and tried before.
 
            
 
                 I feel that this patient is capable of returning 
 
                 to work if only on a limited capacity as far as 
 
                 weight that is lifted, deceasing the continual 
 
                 ratcheting affect or twisting affect of his hands 
 
                 and hopefully this would allow the patient to 
 
                 return to the work force.
 
            
 
            (exhibit 17)
 
            
 
                 On October 3, 1989, Dr. Youngblade completed a workers' 
 
            compensation questionnaire in which he answered the 
 
            question, "Is this work related?" with the word "yes." (ex. 
 
            18).
 
            
 
                 Claimant was examined by Pat Luse, D.C., on February 
 
            27, 1990, who reviewed the medical reports of Dr. Liudahl, 
 
            Dr. Youngblade, Dr. Helt, Dr. Reeder and Dr. Miller.  He 
 

 
            
 
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            diagnosed:
 
            
 
                 1.  Chronic shoulder bursitis-bilateral.
 
                 2.  Rotator cuff tear-bilateral.
 
                 3.  Overuse syndrome both shoulders.
 
                 4.  Carpal tunnel syndrome-not rated in this report.
 
            
 
            (exhibit 19, page 4)
 
            
 
                 Dr. Luse found, "It is my opinion, based on the 
 
            available information, that Larry Price did receive an 
 
            injury as a result of the repetitive motion job he was 
 
            performing.  The subjective complaints were consistent with 
 
            the objective findings." (ex. 19, p. 4).  Dr. Luse's 
 
            impairment rating was a total impairment to the whole person 
 
            of 20 percent, although it is not clear how he arrived at 
 
            this final figure based upon the preliminary measurements 
 
            which he used (ex. 19, p. 4).  
 
            
 
                 Claimant was examined by Michael J. Morrison, M.D., an 
 
            orthopedic surgeon, on July 13, 1990 and he diagnosed, "(1) 
 
            cervical and shoulder girdle strain, chronic; (2) 
 
            degenerative cervical disc disease (mild)-no evidence of 
 
            disc herniation; (3) weakness upper extremities-etiology 
 
            unclear".  (ex. 22, p. 2).  Dr. Morrison said that claimant 
 
            attributed his stiffness and pain to repetitive use of his 
 
            upper arms at work, such as tightening heavy vises over an 
 
            extended period of time.  Dr. Morrison countered that 
 
            degenerative cervical disc disease can also occur with an 
 
            aging process and not necessarily be related to repetitive 
 
            twisting and motion involving his neck.  Dr. Morrison said 
 
            since there were no objective findings on physical exam or 
 
            diagnostic testing, that he could not justify work 
 
            restrictions based on objective findings, but only 
 
            subjective complaints.  He agreed that claimant did have 
 
            carpal tunnel syndrome and that tight gripping and heavy 
 
            lifting with his hands would aggravate this condition (ex. 
 
            22, pp. 1 & 2).
 
            All of the doctors indicated that claimant's symptoms were 
 
            related to his work.  Employers' physician, Dr. Youngblade, 
 
            specifically indicated that his complaints were work related 
 
            (exs. 3 & 18).  Dr. Helt said the shoulder strain was from 
 
            repetitive motion (ex. 12).  Dr. Miller concurred in Dr. 
 
            Helt's restrictions (ex. 13).  Dr. Liudahl specifically 
 
            stated, "I believe that this is related to the patient's 
 
            employment and essentially it falls into the category of 
 
            over-use type syndrome." (ex. 14).  Dr. Reeder said 
 
            claimant's condition was worsened by work activities (ex. 
 
            16).  Even though Dr. Morrison suggested degeneration, 
 
            degeneration was not shown on any of the objective tests 
 
            that were done.  Dr. Morrison did grant that the carpal 
 
            tunnel was aggravated by tight gripping and heavy lifting 
 
            with his hands (ex. 22, pp. 1 & 2).  Dr. Luse said that 
 
            claimant's injury was caused by his employment (ex. 19, p. 
 
            4).  The EMG of Dr. Krysztofiak showed improvement when 
 
            claimant had been off work (exs. 2 & 9).  
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury to his wrists, elbows, shoulders, neck and upper back 
 
            on February 8, 1989, which arose out of and in the course of 
 

 
            
 
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            employment with employer.
 
            
 
                                  type of injury
 
            
 
                 It is determined that the injury is an injury to the 
 
            body as a whole.  It is clear that claimant's complaints, 
 
            treatment, testing and evaluations all extended to parts of 
 
            the body beyond the glenohumerol joint into the body as a 
 
            whole--more specifically, both shoulders, neck, and across 
 
            the shoulder blades.  Therefore, it is determined that 
 
            claimant has sustained an industrial disability to the body 
 
            as a whole.
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 On the prehearing report the parties agreed that 
 
            defendants are liable for temporary disability benefits from 
 
            February 10, 1989 to November 13, 1989, a period of 39.571 
 
            weeks.  Therefore, it is determined that claimant is 
 
            entitled to temporary disability benefits for this period of 
 
            time.
 
            
 
                 Casual connection is not in question.  The only reason 
 
            any of the doctors suggested for the disability was 
 
            claimant's work history which he related to them at the time 
 
            he was examined.  Assuming that claimant did have some 
 
            degeneration in his cervical spine, as suggested by Dr. 
 
            Morrison (ex. 20), or spurring as suggested by the MRI (ex. 
 
            7), defendants are, nevertheless, liable for an aggravation 
 
            of a preexisting condition which quite clearly appears to be 
 
            caused by the work history which claimant related at the 
 
            hearing and to the doctors.  No other cause of the 
 
            disability is realistically suggested by any of the 
 
            evidence.  Therefore, it is determined that claimant is 
 
            entitled to 39.571 weeks of temporary disability benefits as 
 
            agreed to by the parties in the prehearing report.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that claimant is entitled to 20 
 
            percent industrial disability to the body as a whole.  For 
 
            the injury to his wrists, elbows, shoulders, neck and upper 
 
            back on February 8, 1989, which arose out of and in the 
 
            course of employment with employer.
 
            
 
                 Claimant, born February 16, 1944, was approximately 43 
 
            years old at the time of the injury and 44 years old at the 
 
            time of the hearing.  Claimant's industrial disability is 
 
            more serious than a younger or older worker because he is at 
 
            the peak of his earnings career, particularly after 20 years 
 
            of employment with the same employer.  Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision April 28, 1989).
 
            
 
                 Claimant has the benefit of a high school education.  
 
            During high school he worked as a grocery stock clerk and a 
 
            filling station attendant pumping gas.  Later, he drove a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            delivery truck, worked as a construction laborer and frame 
 
            carpenter, worked in a packing house as a butcher on the 
 
            kill floor and was an order picker for a wholesale grocery 
 
            firm.  There was no evidence of any other past experience, 
 
            education or training.  Claimant is young enough to be 
 
            retrained and rehabilitated and from his appearance in the 
 
            courtroom appears to have the intelligence and adaptability 
 
            to be retrained.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).  Retraining is 
 
            one of the considerations used in the determination of 
 
            industrial disability.
 
            
 
                 Dr. Youngblade did not give a physical impairment 
 
            rating, nor is there any indication that he was asked to do 
 
            so or that he was capable of doing so.  Dr. Reeder stated on 
 
            March 29, 1990, "In my opinion Mr. Price shows no subjective 
 
            evidence of nerve damage to the right upper extremity.  
 
            Beyond this I really have no expertise or inclination to 
 
            rate this type of injury for permanent disability 
 
            percentages." (ex. 5).  Dr. Miller and Liudahl did not give 
 
            impairment ratings, although as orthopedic surgeons it would 
 
            appear they were fully capable of doing so if they were 
 
            asked.  Dr. Morrison was unable to award any impairment 
 
            rating (ex. 22). 
 
            
 
                 Dr. Luse gave a bottom line, "Total impairment to whole 
 
            person = 20%." (ex. 19, p. 4).  However, his final figure 
 
            does not tally with his preliminary figures and therefore, 
 
            the reliability of a 20 percent rating is brought into 
 
            question.
 
            
 
                 Nevertheless, several restrictions were placed on 
 
            claimant.  His personal physician, Dr. Helt, said (1) no 
 
            ratcheting, (2) no arbor press work, (3) no pushing-pulling, 
 
            (4) no heavy lifting or lifting with arm away from the body 
 
            and (5) no continuous repetitive motion on use of the hands 
 
            and forearms (ex. 12).  Dr. Miller, an orthopedic surgeon, 
 
            concurred in these restrictions (ex. 13).  Dr. Reeder 
 
            recommended, "...retraining in order to perform a job which 
 
            would limit his activity about the shoulders." (ex. 16).  
 
            Dr. Youngblade suggested he be limited to lifting 25 pounds 
 
            or less and decrease his twisting and ratcheting with his 
 
            hands and if he did so hopefully this would allow him to 
 
            return to the work force (exs. 17 & 18).  Dr. Luse did not 
 
            suggest any restrictions (ex. 19).  Dr. Morrison said any 
 
            restrictions would have to be based upon subjective findings 
 
            (ex. 22).  Dr. Reeder on April 10, 1990, said that claimant 
 
            should be assigned to tasks which avoid repetitive motions 
 
            of the right shoulder especially those above the head.  He 
 
            did not think a weight restriction was necessary.  Again he 
 
            declined to rate the claimant on the basis of a nerve injury 
 
            because he said the problem was mainly that of arthropathy 
 
            (ex. 21).
 
            
 
                 Although claimant's hand, arm and shoulder movements 
 
            were not highly repetitive, they were, nevertheless, 
 
            repetitive.  Therefore, it is determined that claimant is 
 
            foreclosed from returning to his prior employment which he 
 
            was performing at the time this injury occurred.  Rohrberg 
 
            v. Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Report 282 (1984); Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (Appeal Decision January 30, 1979).
 
            
 
                 Claimant was terminated from his employment by employer 
 
            for the reason that he failed to request a leave of absence 
 
            as he was required to do by the bargaining agreement.  
 
            Actually, claimant was determined to have voluntarily quit, 
 
            according to the bargaining agreement, because he failed to 
 
            extend his request for a leave of absence, even though he 
 
            was off work based on a doctor's orders due to his injury, 
 
            according to the testimony of Donald Campbell, the personnel 
 
            director (tr. pp. 132-134).  This termination of employment 
 
            is the subject of a grievance procedure at the present time 
 
            (exs. 24, 25 & AA).  
 
            
 
                 Claimant testified that he has a continuous dull pain 
 
            all of the time in his upper extremities which never goes 
 
            away (tr. pp. 33 & 34).  Claimant maintained that the two 
 
            times he returned to work he was unable to perform even the 
 
            light duty work which was provided for him (tr. pp. 40 & 
 
            50).  Claimant testified that after his termination he took 
 
            a job for a plumber digging trenches, putting in water pipe 
 
            and performing warehouse work and he continued to experience 
 
            loss of strength in his arms and shoulders and pain in his 
 
            neck (tr. p. 52).  Claimant granted that he has performed 
 
            work in a home workshop on starters, generators and 
 
            alternators for several years, but since this injury it has 
 
            been difficult for him to do (tr. pp. 52, 53, 55, 57 & 70).  
 
            Employer did not offer claimant any vocational 
 
            rehabilitation, nor did claimant actively pursue any 
 
            vocational rehabilitation on his own initiative (tr. pp. 54, 
 
            59, 60).  
 
            
 
                 Claimant testified that the injury has reduced his 
 
            competition in league softball, but also conceded on 
 
            cross-examination that he had discontinued league softball 
 
            sometime prior to this injury.  Claimant indicated that 
 
            formerly he played a lot of basketball, but defendants 
 
            pointed out that claimant had played basketball all winter 
 
            extensively with his son and his son's friends as well as 
 
            with claimant's own friends (tr. pp. 56 & 68).
 
            
 
                 Claimant acknowledged that he has had no active medical 
 
            treatment or medications for this injury since June of 1989.
 
            
 
                 Claimant conceded that when he worked in the warehouse, 
 
            he handled parts which were 20 feet long and weighed 40 to 
 
            50 pounds and performed overhead work without assistance by 
 
            use of a ladder (tr. pp. 72 & 73).  Claimant said he could 
 
            run a mile if he had to (tr. p. 69).
 
            
 
                 In conclusion, it is determined that there is labor and 
 
            work which claimant can perform; however, he is precluded 
 
            from performing repetitive tasks with his hands, arms and 
 
            shoulders.  This limitation prevents him from performing 
 
            many of the easiest jobs to obtain and sometimes the better 
 
            paying jobs in the competitive labor market.
 
            
 
                 It is also noted that claimant's physical injuries did 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            not require surgery and the surgeons who examined claimant 
 
            recommended ag v. 
 
            Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (Appeal Decision March 26, 1985); 
 
            and (3) applying agency expertise, [Iowa Administrative 
 
            Procedure Act 17A.14(5)]; it is determined that claimant has 
 
            sustained a 20 percent industrial disability to the body as 
 
            a whole and is entitled to 100 weeks of permanent partial 
 
            disability benefits at the rate of $263.30 per week.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, it is determined that based upon the 
 
            evidence presented and the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained an injury on February 8, 1989, 
 
            to his wrists, elbows, shoulders, neck and his upper back 
 
            which arose out of and in the course of employment with 
 
            employer.  Iowa Code section 85.3(1).  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 That the injury was the cause of temporary disability.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 
 
            607 (1945).
 
            
 
                 That claimant is entitled to healing period benefits 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            from February 10, 1989 to November 13, 1989, as stipulated 
 
            to by the parties in the prehearing report, a period of 
 
            39.571 weeks.  Iowa Code section 85.34(1).
 
            
 
                 That the injury was the cause of permanent disability.  
 
            Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 100 weeks of permanent 
 
            partial disability benefits at the rate of $263.30 per week 
 
            in the total amount of $26,330.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant thirty-nine point five 
 
            seven one (39.571) weeks of healing period benefits at the 
 
            rate of two hundred sixty-three and 30/100 dollars ($263.30) 
 
            in the total amount of ten thousand four hundred nineteen 
 
            and 04/100 dollars ($10,419.04) commencing February 10, 
 
            1989.
 
            
 
                 That defendants are entitled to a credit for 
 
            thirty-seven weeks of healing period benefits paid to 
 
            claimant prior to hearing at the rate of two hundred 
 
            sixty-three and 30/100 dollars ($263.30) in the total amount 
 
            of nine thousand seven hundred forty-two and 10/100 dollars 
 
            ($9,742.10).  Defendants are also entitled to credit for the 
 
            days that claimant returned to work and received wages on 
 
            his two short-lived attempts to return to work which the 
 
            parties indicated that they could agree to the amount of the 
 
            credit.
 
            
 
                 That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred sixty-three and 30/100 dollars ($263.30) in the 
 
            total amount of twenty-six thousand three hundred thirty 
 
            dollars ($26,330) commencing at the end of healing period.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 That defendants file Division of Industrial Services 
 
            form 2A to show the payments made to claimant prior to 
 
            hearing.
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            632-640 Badgerow Bldg.
 
            PO Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Michael P. Jacobs
 
            Attorney at Law
 
            300 Toy National Bank Bldg
 
            Sioux City, Iowa  51101
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51106; 51401; 51402.20; 
 
                                          51402.30; 51402.40; 52209; 
 
                                          51802; 51703; 51803; 1807
 
                                          Filed November 28, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY L. PRICE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  910370
 
            SIOUX TOOLS, INC.,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51106; 51401; 51402.20; 51402.30; 51402.40; 52209
 
            Claimant sustained a cumulative type of injury to his 
 
            wrists, elbows, shoulder, neck and upper back from use of 
 
            his upper extremities at work as a production worker.
 
            
 
            51802
 
            Claimant awarded healing period for a stipulated period of 
 
            time.
 
            
 
            51703
 
            Defendants allowed an offset for workers' compensation and 
 
            wages paid to claimant prior to hearing.
 
            
 
            51803
 
            Claimant awarded 20 percent industrial disability based 
 
            partially on a 20 percent functional impairment rating from 
 
            a forensic chiropractic evaluator that wasn't too reliable, 
 
            but primarily because he was foreclosed from his prior 
 
            employment doing work which was repetitive in nature by 
 
            medical doctors who were orthopedic and neurosurgical 
 
            specialists.  Several tests disclosed no objective evidence 
 
            of injury except slight carpal tunnel and no surgery was 
 
            performed of any kind.
 
            
 
            1807
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Employer chose to call 20-year employee a voluntary quit 
 
            when he failed to ask for a leave of absence even though he 
 
            was under doctor's restrictions, which was their right to do 
 
            under the bargaining agreement.  Using this technical ground 
 
            to terminate a 20-year employee who had become an employment 
 
            problem appeared to be very much like or tantamount to a 
 
            refusal to rehire.  Prior to this leave of absence, employer 
 
            had assisted him in completing the necessary request for 
 
            leave of absence while being treated for this injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            SCOTT DMOCHOWSKI,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910389
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 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 October 22, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed February 24, 1992
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            SCOTT DMOCHOWSKI,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910389
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed October 
 
            22, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SCOTT DMOCHOWSKI,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 910389
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Scott Dmochowski filed a petition in 
 
            arbitration seeking benefits under the Iowa Workers' 
 
            Compensation Act as the result of a stipulated work injury 
 
            on February 6, 1989.  Defendant Hy-Vee Food Stores, Inc., 
 
            was his employer and was insured by defendant Employers 
 
            Mutual Companies.
 
            
 
                 The cause came on for hearing in Des Moines, Iowa, on 
 
            August 14, 1991.  Claimant, Paul Blanchard and John Powers 
 
            testified personally.  Joint exhibits 1 through 9, 
 
            claimant's exhibits 1 and 2 and defendants' exhibits A, B 
 
            and D through H were received into evidence.
 
            
 
                 Claimant objected to defendants' exhibit C on the basis 
 
            that it was untimely pursuant to the hearing assignment 
 
            order filed herein on March 20, 1991.  Defendants asserted 
 
            that the exhibit stood in rebuttal to claimant's exhibit 1, 
 
            which was served only on or about the last day permitted for 
 
            discovery under the hearing assignment order.  Ruling was 
 
            reserved.  Under the result reached in this decision, the 
 
            issue is moot.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with Hy-Vee Food Stores, Inc., on February 6, 1989, that the 
 
            appropriate rate of compensation is $246.67 per week, that 
 
            affirmative defenses are waived, and that certain payments 
 
            were voluntarily made and continue to be made through the 
 
            date of hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and permanent disability (claimant seeks no 
 
            additional healing period or temporary total disability);
 
            
 
                 2.  The extent of claimant's industrial disability, if 
 
            any; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Scott Dmochowski, 30 years of age at hearing, is a 1978 
 
            high school graduate.  At age 15, he was involved in an 
 
            automobile accident resulting in a compression fracture of 
 
            the fourth lumbar vertebra.  The injury did not result in 
 
            the imposition of permanent medical restrictions and Mr. 
 
            Dmochowski claims that he suffered no ongoing back problems.  
 
            Prior to accepting work with Hy-Vee Food Stores, claimant 
 
            was physically active and engaged in athletic activities 
 
            without limit.
 
            
 
                 Claimant first began working in a grocery store in the 
 
            state of Illinois where he was raised.  He moved to Iowa in 
 
            approximately July 1978 and commenced work with Hy-Vee, also 
 
            a grocery business.  Claimant worked in several stores in 
 
            the Des Moines area through the stipulated injury date of 
 
            February 6, 1989.  During the first ten months or so of his 
 
            employment, he worked as a grocery bagger, shelf stocker, 
 
            and in various duties such as helping customers load 
 
            groceries into cars.  This was generally strenuous work and 
 
            involved lifting up to perhaps 80 pounds.  Afterwards, 
 
            claimant worked in building maintenance for some six or 
 
            seven years in two different stores.  Duties included 
 
            sweeping, mopping, waxing floors and the like.
 
            
 
                 In approximately 1985, defendant contracted out the 
 
            floor cleaning duties to a private concern and claimant was 
 
            reassigned to a night crew job unloading delivery trucks and 
 
            stocking shelves.  Typically, five or six employees would 
 
            spend 2-3 hours unloading a truck using a roller track, then 
 
            stocking shelves with this merchandise.  Claimant described 
 
            the work as relatively heavy.  Some 40,000 pounds of product 
 
            were typically unloaded and shelved.
 
            
 
                 On February 6, 1989, claimant was stationed in the 
 
            truck, sliding cases of product down the roller track.  He 
 
            developed severe back pain, and after reporting this to his 
 
            supervisor, was transferred to a job out of the truck.  He 
 
            made it through the rest of the shift with pain symptoms 
 
            described as "jolting" or like "lightning."  Unlike previous 
 
            experiences with sore muscles, the pain did not improve 
 
            after a night's rest.
 
            
 
                 On February 8, 1989, claimant was seen by Debra A. 
 
            Benjamin, D.O., at the College of Osteopathic Medicine in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            Des Moines.  In pertinent part, her report of that date 
 
            included:
 
            
 
                 He has been working at Hy-Vee as a night stock 
 
                 person for the past ten years.  He states he does 
 
                 approximately 40,000 pounds of lifting a night.  
 
                 He is usually able to do this without any 
 
                 excruciating or radiating back pain.  Over the 
 
                 past seven to eight years, he has noticed episodes 
 
                 once every three to four months where he will have 
 
                 a lightening [sic] like sensation radiating down 
 
                 both of his legs.  Over the past two to three 
 
                 weeks, however, this lightening [sic] like 
 
                 sensation has become much increased.  It will 
 
                 start in his lower back region and radiate down 
 
                 the back of his legs, at times just to his knees 
 
                 and at other times down to his ankles.  He has no 
 
                 weakness associated with this.  He has no problem 
 
                 with bowel or bladder.  He has no sexual problems.  
 
                 He states this is usually brought on by bending 
 
                 forward but this is not always the case.  At times 
 
                 he can do this and not be bothered.  When he gets 
 
                 these sensations, he has to stand still for 
 
                 approximately one to two minutes and then the pain 
 
                 will subside.  He states occasionally this will 
 
                 shoot up his back a ways, but certainly no higher 
 
                 than the umbilical region.  He states these 
 
                 episodes occur up to twenty times a day.  He also 
 
                 tends to exacerbate some of these problems with 
 
                 coughing.  He admits to taking Advil and using a 
 
                 heating pad, but has not been on bed rest for any 
 
                 of these complaints.
 
            
 
            (Exhibit 4, page 1, emphasis added)
 
            
 
                 Dr. Benjamin's report fails to mention the incident of 
 
            February 6, 1989.  Her impression was of status post-lumbar 
 
            fracture with some tic-like paresthesias in the lumbar 
 
            region with radiation down the legs.  Neurological 
 
            examination was normal.
 
            
 
                 Claimant was cross-examined on the history he gave Dr. 
 
            Benjamin.  At first, he denied reporting "lightning like" 
 
            episodes for a period of years, then indicated that he did 
 
            not recall giving that history.  It will be recalled that 
 
            claimant also testified to suffering no ongoing back 
 
            problems following the spinal injury he suffered at age 15.  
 
            However, a review of Dr. Benjamin's report convinces this 
 
            observer that the doctor did not misunderstand claimant's 
 
            history.  A fair reading of the quoted remarks shows that 
 
            they are consistent with a history of exacerbation "over the 
 
            past two to three weeks," much more so than a history of 
 
            only two days.  The history claimant gave to a treating 
 
            physician when he was in acute need of medical attention is 
 
            more reliable than his testimony more than two years later 
 
            when his focus is more immediately upon this litigation than 
 
            the need for medical care.  It is established that claimant 
 
            had a seven- or eight-year history of "lightning like" 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            sensations radiating down both legs and pain, symptoms which 
 
            had become "much increased" in the two to three weeks prior 
 
            to February 8, 1989.  This is also two to three weeks prior 
 
            to the alleged work injury.  It should also be noted that 
 
            admission notes of the emergency department at Mercy 
 
            Hospital Medical Center dated May 20, 1989 reflect a history 
 
            of "several years of back pain."
 
            
 
                 Claimant was next seen by Sinesio Misol, M.D., on 
 
            February 15, 1989.  Dr. Misol continued to follow claimant 
 
            for some months.  Initial history was consistent with 
 
            claimant's hearing and deposition testimony, but 
 
            inconsistent with the history given Dr. Benjamin.  Chart 
 
            notes of February 28 reflect a two-week history of back pain 
 
            "that started suddenly while unloading a truck."  On March 
 
            24, Dr. Misol notes that claimant was "pretty much 
 
            asymptomatic until he got hurt at work."  On that basis, Dr. 
 
            Misol believed claimant had sustained an aggravation of a 
 
            preexisting underlying disc disease problem.
 
            
 
                 Claimant was also treated by William R. Boulden, M.D., 
 
            who eventually performed surgery on January 12, 1990 
 
            described as transverse process fusion L3-4 bilaterally with 
 
            internal bone stimulator.  The history given Dr. Boulden on 
 
            June 13, 1989 was of pain in the lower back that "first 
 
            started at work."  Again, the history given Dr. Boulden was 
 
            inconsistent with that given Dr. Benjamin, the first 
 
            physician to be seen.  Dr. Boulden eventually concluded that 
 
            claimant's disability resulted from a work injury at Hy-Vee.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment.  
 
            Entitlement to healing period or temporary total disability 
 
            is not at issue.  Claimant was sporadically off work from 
 
            February 12, 1989 through October 30, 1990, but seeks no 
 
            further compensation.
 
            
 
                 The parties dispute whether the work injury caused 
 
            permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 6, 
 
            1989 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Two physicians have expressed a view as to causation:  
 
            Drs. Misol and Boulden.  However, both opinions are based on 
 
            a faulty history.  Dr. Misol and Dr. Boulden each believed 
 
            that claimant was asymptomatic before suffering the sudden 
 
            onset of back pain on February 6, 1989.  It is unknown how 
 
            those physicians might have viewed the causation issue had 
 
            they been aware of a seven- to eight-year history of pain 
 
            and lightning like sensations much exacerbated in the two to 
 
            three weeks immediately preceding the alleged work injury.  
 
            The significance of the incorrect history upon which these 
 
            well-qualified physicians based their opinions is obvious.
 
            
 
                 In any event, it is claimant's burden of proof to 
 
            establish the necessary causal nexus between the asserted 
 
            work injury and present disability.  Unloading the truck on 
 
            February 6, 1989 may well be causally related to some or all 
 
            of the temporary disability that followed, but that is not 
 
            in dispute.  Indeed, that incident may in some part be 
 
            related to current disability, but claimant has failed to 
 
            meet his burden of proof in establishing that relationship.  
 
            Other issues are thereby rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from these 
 
            proceedings.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl, III
 
            Attorney at Law
 
            974 73rd Street, Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50
 
                           Filed October 22, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            SCOTT DMOCHOWSKI,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
           		 vs.          :
 
		                      :         File No. 910389
 
            HY-VEE FOOD STORES, INC., :
 
                 		      :      A R B I T R A T I O N
 
                 Employer, 	      :
 
		                      :         D E C I S I O N
 
		            and       :
 
                		      :
 
            EMPLOYERS MUTUAL COMPANIES,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            
 
            1108.50
 
            Although two treating physicians opined that work injury 
 
            caused permanent disability, both opinions were flawed by 
 
            incorrect histories given each doctor.
 
            Claimant had suffered a fractured L-4 vertebra in childhood.  
 
            After work incident, the first physician seen--two days 
 
            later--noted a 7-8 year history of pain and radiating 
 
            "lightning like" jolts which had become much exacerbated (up 
 
            to 20 times per day) over the past two to three weeks.  A 
 
            review of her notes convincingly showed that the reference 
 
            to "weeks" was not a misunderstanding or clerical error.
 
            Because the medical opinions were based on a faulty history, 
 
            claimant failed to meet his burden of proof on causation.
 
            
 
 
            
 
       
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER                     
 
            ____________________________________________________________
 
                                          :
 
            DENNIS L. VIERS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910392
 
            ALLIED PRODUCTS CORP,         :
 
                                          :  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 brought by Dennis 
 
            L. Viers against his former employer, Allied Products 
 
            Corporation and its insurance carrier, CIGNA, based upon an 
 
            admitted injury of February 21, 1989.  The issues for 
 
            determination are the rate of compensation and the extent of 
 
            permanent partial disability.  It was stipulated that 
 
            claimant's healing period ran from February 23, 1989 through 
 
            January 15, 1990, and that 116 4/7 weeks of compensation 
 
            benefits had been paid at the rate of $230.72 per week.  It 
 
            was stipulated that claimant was married and entitled to 
 
            four exemptions.  The case was heard and fully submitted at 
 
            Mason City, Iowa, on July 16, 1993.  The evidence consists 
 
            of testimony from Dennis Viers and John Culbertson.  The 
 
            record also contains jointly offered exhibits 1 through 78.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Dennis Viers is a 48-year-old married man who dropped 
 
            out of school in the eighth grade but obtained a GED in 
 
            1969.  He is an honorably discharged veteran of the Viet Nam 
 
            War.  
 
            
 
                 Dennis has a varied work history which includes 
 
            construction, dairy farming, cemetery maintenance, truck 
 
            driving, operation of heavy construction equipment, 
 
            manufacturing, and foundry work.  
 
            
 
                 The employer in this case, Allied Products Corporation, 
 
            was formerly known as White Farm Equipment.  Dennis has been 
 
            employed by the employer on two separate occasions.  The 
 
            first ran from 1973 until October 1981.  He was a chipper 
 
            and grinder in the foundry.  Due to a reduction in his hours 
 
            he resigned in order to take a better paying job in a 
 
            factory near Minneapolis, Minnesota.  After two years he was 
 
            laid off from that factory and returned to northern Iowa.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Upon returning to northern Iowa, Dennis obtained 
 
            employment with M.R. Fishel Construction.  He drove a truck, 
 
            operated a roller and performed other assorted activities.  
 
            His annual earnings were in the range of $6000 to $8000 due 
 
            to the seasonal nature of the work.  
 
            
 
                 In 1988 Dennis returned to work at what is now Allied 
 
            Products Corporation as a grinder.  The work involved 
 
            lifting pieces which weighed as much as 140 pounds.  His pay 
 
            was based on the amount of work performed rather than by the 
 
            hour.  On February 21, 1989, Dennis had been working with 
 
            110-pound flywheels and heavy weights used on the front end 
 
            of farm tractors.  He felt pain in his back and neck, 
 
            reported it and was sent to receive medical care.  
 
            
 
                 Dennis then entered into a course of medical care and 
 
            treatment which has involved extensive physical therapy, 
 
            diagnostic tests and other conservative care as directed by 
 
            the employer-selected physicians.  The diagnostic testing 
 
            has shown degeneration in his right shoulder and lumbar 
 
            spine (exhibit 2, page 12; ex. 4, pp. 25-26; ex. 35).  J. 
 
            Michael Donohue, M.D., has rated Dennis as having a 9 
 
            percent impairment of the whole person as a result of the 
 
            February 1989 injury (exs., 24, 25, 26).  Dr. Donohue 
 
            imposed activity restrictions which consist of avoidance of 
 
            repetitive bending and lifting, a maximum lifting 
 
            restriction of 75 pounds and which permits lifting up to 50 
 
            pounds frequently so long as it is not so frequent as to be 
 
            considered repetitive.  Dr. Donohue also recommended that 
 
            claimant minimize repetitive use of his right shoulder and 
 
            limit use of the right arm to chest level and below.  He 
 
            recommended that Dennis be permitted to change position 
 
            every two hours (exs. 24, 25).  The record does not show any 
 
            physician to have any significant disagreement with Dr. 
 
            Donohue's assessment of the case.  In fact, David W. Beck, 
 
            M.D., a neurosurgeon, has concurred with Dr. Donohue (ex. 
 
            40).  Dr. Donohue is a well-regarded orthopedic surgeon.  
 
            His assessment is accepted as being correct.  
 
            
 
                 Commencing in May 1989 and running through January 
 
            1990, Richard Jorgensen, a vocational consultant with 
 
            Intracorp, was involved in claimant's case.  Jorgensen was 
 
            not able to arrange a successful return to work for Dennis 
 
            (exs. 48-67).  Dennis obtained employment with M.R. Fishel 
 
            Construction in 1991.  After learning that Dennis had 
 
            obtained that employment, Jorgensen then re-offered 
 
            rehabilitation services (exs. 68-73).
 
            
 
                 Dennis is now employed as a truck driver for M.R. 
 
            Fishel Construction.  As during the previous employment with 
 
            that employer, the work is seasonal, typically starting in 
 
            the month of May and ending in the month of November (ex. 
 
            77, deposition ex. 1, pp. 7-11).  Dennis receives 
 
            unemployment when work is not available.  In 1991 he earned 
 
            $7,468.50.  In 1992 he earned $10,338.85.  By the end of 
 
            June in 1993 Dennis had earned only $2,954.34.  Dennis 
 
            currently earns $6.50 per hour and has no fringe benefits.  
 
            According to Michael Fishel, superintendent for M.R. Fishel 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Construction, Dennis performs his work satisfactorily and 
 
            performs as much manual labor as other truck drivers.  If 
 
            Dennis were still employed at Allied Products Corporation he 
 
            would be earning in excess of $12 per hour.  The Allied 
 
            plant was scheduled to close, however, due to lack of work 
 
            with all remaining employees to be terminated.  As indicated 
 
            by John Culbertson, human resources manager, it will be 
 
            difficult for most of those 450 workers to find replacement 
 
            employment.
 
            
 
                 The Allied plant did not always operate 40 hours per 
 
            week while Dennis was employed there.  Dennis also missed 
 
            work on occasion for personal reasons.  Exhibit 75 shows the 
 
            gross earnings for the last 24 weeks that Dennis worked at 
 
            Allied.  Of those, nine contain less than 40 work hours.  
 
            Three show more than 40 work hours.  According to the 
 
            testimony from John Culbertson the reduced hours shown for 
 
            the weeks of December 17, 1988 were probably a result of a 
 
            lack of work.  The evidence fails to show any reason for why 
 
            Dennis worked less than 40 hours during any of the other 
 
            weeks.  Dennis generally worked whenever work was available 
 
            but also had some absences for personal reasons.  It is 
 
            therefore determined that the 13 weeks preceding the injury 
 
            which are representative of the claimant's customary 
 
            earnings in this case are the weeks ending February 18, 
 
            February 11, January 21, January 14, January 7, December 31, 
 
            both weeks marked December 17, December 3, November 19, 
 
            November 12, November 5, and October 29.  The total earnings 
 
            during that 13-week period are $4,965.49.  The gross average 
 
            weekly earnings are $381.96.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is the rate at which 
 
            weekly compensation benefits should be paid.  It is well 
 
            settled that unrepresentative weeks are to be excluded.  
 
            Davis v. Weitz Company, file number 898933 (App. Dec. Nov. 
 
            1992); Lewis V. Aalfs, I Iowa Industrial Commissioner Report 
 
            209 (App. Dec. 1980).  The rate of compensation was known to 
 
            be an issue in this case.  It is one of only two disputed 
 
            principal issues.  It would be expected that an employer 
 
            would have records showing whether an employee's absence was 
 
            due to personal reasons or whether it was due to a lack of 
 
            work which placed all employees out of work.  There is some 
 
            question with regard to which of the parties in a workers' 
 
            compensation proceeding has the burden of proving the 
 
            earnings upon which the rate of compensation is based.  
 
            Generally, the burden of proving a fact rests upon the party 
 
            who has possession of the facts or information the other 
 
            party lacks.   Sponsler v. Clarke Electric Cooperative, 329 
 
            N.W.2d 663 (Iowa 1983); Haynes v. Dairyland Mutual Insurance 
 
            Co., 199 N.W.2d 83 (Iowa 1972).  It is determined that an 
 
            employer has much better knowledge of when it closes and of 
 
            the reasons for employee absences than an individual 
 
            employee might have.  Employers typically keep attendance 
 
            records, personnel files and pay records.  Individuals 
 
            seldom do so.  In this case, it is appropriate to apply the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            inference that where the party having possession of evidence 
 
            declines to bring it forward it is reasonable to infer that 
 
            the evidence would be unfavorable to that party.  Crosser v. 
 
            Iowa Dept. of Public Safety, 240 N.W.2d 682 (Iowa 1986).  
 
            For those weeks where there is no evidence in the record 
 
            indicating why Dennis worked less than 40 hours.  It is 
 
            therefore determined that the reduced hours were for 
 
            personal absences other than the weeks which are identified 
 
            as December 17 in exhibit 75.  Those weeks were shown by the 
 
            testimony of John Culbertson to have been weeks when work 
 
            was not available.  Culbertson's testimony shows that it is 
 
            probable that those two weeks were short due to lack of 
 
            work.  For the other weeks the evidence is at an equipoise 
 
            and application of the inference rule results in the 
 
            determination that the reduced hours were for personal 
 
            absences rather than lack of work since the employer has the 
 
            records of claimant's attendance and of the plant activity.  
 
            With a gross weekly wage of $381.96 and Dennis being married 
 
            and entitled to four exemptions, the rate of compensation is 
 
            therefore determined to be $250.36 per week.  
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 The change in an individual's actual earnings is 
 
            normally considered to be strong evidence of the change in 
 
            their earning capacity.  This is so because most individuals 
 
            tend to earn as much as they are reasonably capable of 
 
            earning.  When the worker is well motivated as Dennis 
 
            appears to be and all other factors are the same, the change 
 
            in actual earnings is a good indicator of the change in 
 
            earning capacity.  In this case, however, all other factors 
 
            are not the same.  The closing of the Allied plant is a very 
 
            material factor.  Also to be considered is the fact that 
 
            Allied would not accommodate Dennis.  The activity 
 
            restrictions recommended by Dr. Donohue are significant but 
 
            are not extreme.  Dennis is still clearly qualified to 
 
            perform work which requires medium exertional activity.  He 
 
            is foreclosed from the heaviest of work, which is what he 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            performed at Allied, but many other jobs are still available 
 
            to him.  The problem in this case is that manufacturing jobs 
 
            are not readily available in north central Iowa and 
 
            manufacturing jobs typically have a much better rate of pay 
 
            and fringe benefits than other types of work which Dennis is 
 
            qualified to perform.  There is nothing in the record to 
 
            indicate the current scarcity of manufacturing jobs is a 
 
            temporary situation.  It is more likely that the situation 
 
            is chronic.
 
            
 
                 Earning capacity is not to be confused with actual 
 
            earnings.  Earning capacity is what a person is capable of 
 
            achieving.  It requires application of judgment to known 
 
            evidentiary facts.  Actual earnings, on the other hand, are 
 
            capable of being determined with absolute certainty based 
 
            upon evidentiary facts.  In this case, a simple comparison 
 
            of the current actual earnings with what the earnings would 
 
            be if Dennis were still employed at Allied is not an 
 
            accurate indicator of the change in his earning capacity 
 
            which has resulted from the injury.  Dennis is in all 
 
            likelihood working at or near the upper limit of his current 
 
            earning capacity in the geographical vicinity of north 
 
            central Iowa.  His activity restrictions as set by Dr. 
 
            Donohue are not particularly restrictive.  Dennis remains 
 
            qualified for many of the types of work which he had 
 
            performed in his life.  When all material factors are 
 
            considered, it is determined that Dennis has experienced a 
 
            30 percent reduction in earning capacity and a 30 percent 
 
            permanent partial disability under the provisions of Iowa 
 
            Code section 85.34(2)(u).  This entitles him to receive 150 
 
            weeks of permanent partial disability compensation.
 
            
 
                 It is noted that Dennis has been paid 116 4/7 weeks of 
 
            compensation at an incorrect rate.  Those weeks have been 
 
            under paid at a rate which is $19.64 per week less than the 
 
            correct rate.  The amount of the underpayment based upon 
 
            those weeks is $2,289.45.  The healing period entitlement is 
 
            stipulated to be from February 23, 1989 through January 15, 
 
            1990.  That amounts to 46 5/7 weeks.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Dennis 
 
            Viers forty-six and five-sevenths (46 5/7) weeks of 
 
            compensation for healing period at the rate of two hundred 
 
            fifty and 36/100 dollars ($250.36) payable commencing 
 
            February 23, 1989.
 
            
 
                 It is further ordered that defendants pay Dennis Viers 
 
            one hundred fifty (150) weeks of compensation for permanent 
 
            partial disability at the rate of two hundred fifty and 
 
            36/100 dollars ($250.36) per week payable commencing January 
 
            16, 1990.
 
            
 
                 Defendants are entitled to credit for the weekly 
 
            compensation previously paid.  All remaining unpaid amounts 
 
            are past due and owing and shall be paid to Dennis in a lump 
 
            sum together with interest pursuant to section 85.30 
 
            computed from the date each payment came due until the date 
 
            it is actually paid.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. Charles Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
            
 
                 
 
            
 
 
            
 
         
 
            
 
            
 
            
 
                                           1404 3001 3002 3700 1803
 
                                           Filed September 16, 1993
 
                                           Michael G. Trier
 
            
 
                         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DENNIS L. VIERS,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 910392
 
            ALLIED PRODUCTS CORP,    
 
                                         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.    
 
            ___________________________________________________________
 
            
 
            1404 3001 3002 3700
 
            Where the earning record showed a number of weeks which 
 
            contained less than 40 hours and there was no evidence in 
 
            the record from which it could be determined whether the 
 
            short hours were due the employee's personal absences or a 
 
            lack of work at the employer's place of business those 
 
            absences were treated as personal absences.  It was held 
 
            that since the employer had the records of its plant 
 
            operation that its failure to show why the claimant had 
 
            short work weeks raised an inference that the records would 
 
            be unfavorable to the employer.  Employers  typically keep 
 
            much better records of employee attendance and plant 
 
            operations than individual employees maintain.  
 
            
 
            1803
 
            Forty-eight-year-old claimant with GED and mild activity 
 
            restrictions awarded 30 percent permanent partial 
 
            disability.  Employer would not accommodate.  Actual 
 
            reduction in earnings was in the range of 50 percent.