Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            BRUCE WELCH,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 911226
 
            STONE CONTAINER CORPORATION,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            claimant 35 percent permanent partial disability benefits as 
 
            a result of a February 27, 1989 work-related injury.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits 1 through 17.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      issue
 
            
 
                 Defendants states the issue on appeal is:  "There is 
 
            not substantial evidence in the record to support the 
 
            deputy's determination that claimant sustained a thirty-five 
 
            percent industrial disability."
 
            
 
                                 findings of fact
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed February 11, 1991 are adopted as set forth 
 
            below.  Segments indicated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                    Bruce Welch is a 32-year-old married man who 
 
                 dropped out of high school during the tenth grade.  
 
                 Subsequent to the injury in this case, he obtained 
 
                 a GED.  At the time of hearing, he was attending 
 
                 Hamilton School of Business studying the fields of 
 
                 data processing, travel and tourism.  He was 
 
                 maintaining excellent grades and was scheduled to 
 
                 complete the course in December 1990.  It was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 anticipated that, with this training, he would be 
 
                 able to obtain employment which would provide a 
 
                 starting wage in the range of $4.50 to $5.50 per 
 
                 hour (exhibit 1, page 139).  Those projections are 
 
                 found to be correct.
 
            
 
                    Prior to obtaining work with Stone Container 
 
                 Corporation, Bruce had worked as an auto mechanic, 
 
                 stock boy, machine operator, assembly line worker, 
 
                 painter, welder, brake press operator, truck 
 
                 driver and had also performed several functions at 
 
                 the Firestone Tire plant.  In his work for Stone 
 
                 Container, claimant had initially worked 
 
                 collecting and banding scrap paper.  He then 
 
                 worked as a temporary stacker in the pressroom.  
 
                 At the time of injury, he worked as a back tender 
 
                 in the tuber department.  All of the jobs claimant 
 
                 performed during his life have required 
 
                 substantial physical activity, agility and 
 
                 strength.  At the time of injury, claimant was 
 
                 earning approximately $8.00 per hour (exhibit 10, 
 
                 page 214).  Other than for Firestone, claimant's 
 
                 earnings with Stone Container were the highest he 
 
                 had ever achieved.
 
            
 
                    Bruce was injured on February 27, 1989 while 
 
                 walking across a catwalk which was approximately 
 
                 18 inches above the floor.  He fell, landing on 
 
                 his back.  It is unclear with regard to which part 
 
                 of his body first struck the concrete floor when 
 
                 he fell.  It might have been his head or it might 
 
                 have been his buttocks.  Bruce was stunned by the 
 
                 fall.  It is found that he did black out and 
 
                 subsequently vomited.  He was taken to Mercy 
 
                 Hospital where he remained until being discharged 
 
                 on March 3, 1989.  He was diagnosed as having a 
 
                 cerebral contusion, nonhemorrhagic and a severe 
 
                 myofascial strain and sprain of his lumbosacral, 
 
                 dorsal and cervical spine (exhibit 1, page 21).  
 
                 [Neurologist, George Makari, M.D., prepared a 
 
                 consultant report on February 28, 1989 at the 
 
                 request of Dennis Straubinger, D.O., Dr. Makari 
 
                 opined that claimant only suffered a mild 
 
                 concussion and he doubted that claimant suffered a 
 
                 brain contusion.  Dr. Makari was under the 
 
                 impression that claimant fell three feet from the 
 
                 catwalk, rather than eighteen inches.]
 
            
 
                    James L. Blessman, M.D., was claimant's initial 
 
                 treating physician.  On March 21, 1989, he entered 
 
                 in his notes that claimant's final diagnosis was a 
 
                 myofascial strain of the cervical and lumbosacral 
 
                 spine and status post-cerebral contusion (exhibit 
 
                 1, page 19).  Nerve blocks were employed to treat 
 
                 claimant's continued complaints, but with only 
 
                 limited success.  A note dated April 6, 1989 
 
                 indicated that Dr. Blessman had contacted Stone 
 
                 Container to request that Bruce be allowed to 
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 return to work at limited duty.  The note 
 
                 indicates that the request was denied.  When 
 
                 testifying at hearing, Tom Riggs, the Stone 
 
                 Container Corporation Human Resources Manager, 
 
                 testified that in the past the company had 
 
                 problems when placing injured employees back to 
 
                 work.  He related that with claimant's 40-pound 
 
                 lifting restriction, there was no work available 
 
                 for claimant within the company as all require at 
 
                 least 50 pounds of lifting ability.
 
            
 
                    Bruce entered the Mercy Hospital Pain Center 
 
                 program on May 26, 1989 in order to seek relief 
 
                 from his complaints of headaches and back pain.  
 
                 He was found to have degenerative disease in his 
 
                 lumbar spine.  During the work capacity 
 
                 evaluation, it was noted that Bruce demonstrated 
 
                 considerable symptom magnification (exhibit 1, 
 
                 page 95; exhibit 13, page 17).  At the time of 
 
                 discharge, Dr. Blessman indicated that he felt it 
 
                 would be safe to restrict claimant's work 
 
                 activities to lifting no more than 40 pounds from 
 
                 floor to shoulder level and from lifting no more 
 
                 than 15 pounds above shoulder level.  He also 
 
                 recommended that Bruce be allowed a break every 
 
                 hour which would allow him to sit for five minutes 
 
                 (exhibit 1, pages 5 and 95).
 
            
 
                    Bruce Welch has been extensively tested and 
 
                 treated by a number of medical service providers.  
 
                 He was treated by psychiatrist Walter E. Thompson, 
 
                 M.D., for depression and an impulse control 
 
                 disorder (exhibit 1, pages 32-35).
 
            
 
                    A number of psychologists have evaluated Bruce.  
 
                 Michael Oliveri, Ph.D., found claimant to be of 
 
                 average general intelligence and to also have a 
 
                 learning disability which probably preexisted his 
 
                 injury (exhibit 12, pages 19-21; exhibit 1, page 
 
                 40).  Dr. Oliveri found some indications that 
 
                 claimant may be affected by residuals from a mild 
 
                 head injury, but he was unable to characterize the 
 
                 likelihood of any permanent head injury as being 
 
                 any more certain than merely possible (exhibit 12, 
 
                 pages 39, 48 and 57).
 
            
 
                    Psychologist Eva Christensen, Ph.D., tested 
 
                 claimant and found the tests compatible with 
 
                 claimant having a pre-injury learning disability 
 
                 (exhibit 12, pages 52 and 53; exhibit 1, pages 
 
                 134-136; exhibit 17).
 
            
 
                    Psychologist Dianne Alber, Ph.D., conducted an 
 
                 MMPI and interpreted the results as being 
 
                 consistent with a psychophysiological or neurotic 
 
                 diagnosis.  The results were interpreted to 
 
                 indicate that claimant may complain of headaches, 
 
                 back pain, nausea, numbness of extremities and 
 
                 sleep disturbance.  It indicated  a likelihood of 
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 secondary gain being associated with the 
 
                 symptomatology (exhibit 1, pages 46-49).
 
            
 
                    Psychologist Daniel Tranel, Ph.D., found 
 
                 claimant to have a developmental learning 
 
                 disability.  He found no indication of brain 
 
                 injury (exhibit 1, page 59).
 
            
 
                    Claimant was also treated by Steven R. Adelman, 
 
                 D.O., a neurologist.  On May 17, 1989, Dr. Adelman 
 
                 indicated that he was surprised by the fact that 
 
                 claimant's symptoms had continued.  His impression 
 
                 at that time was that claimant had a cervical 
 
                 strain with muscle contraction headaches and also 
 
                 some lumbar and thoracic strain (exhibit 1, page 
 
                 50).  Dr. Adelman reviewed the CT scans of 
 
                 claimant's brain which had been conducted shortly 
 
                 following the injury.  He concluded that there was 
 
                 not an actual cerebral contusion, but only a 
 
                 concussion.  It was unclear from the record with 
 
                 regard to whether Dr. Adelman made that 
 
                 determination based upon a medical history which 
 
                 involved claimant landing first on his buttocks, 
 
                 rather than landing on his head and also upon a 
 
                 history showing no loss of consciousness (exhibit 
 
                 16, pages 8-13).  Dr. Adelman examined claimant 
 
                 and found a normal neurological examination, 
 
                 except for limited neck range of motion and what 
 
                 was characterized as demonstrated pain behavior.  
 
                 He diagnosed claimant as having a cervical strain 
 
                 and muscle contraction headaches and also lumbar 
 
                 and thoracic strain.  He found no evidence of a 
 
                 serious intracranial injury (exhibit 16, page 16).
 
            
 
                    Claimant has also been evaluated by orthopaedic 
 
                 surgeon Scott B. Neff, D.O., and physical 
 
                 therapist Thomas W. Bower, L.P.T.  Dr. Neff 
 
                 concurred with the activity restrictions 
 
                 recommended by Dr. Blessman.  He went on to 
 
                 indicate that claimant had a five percent 
 
                 permanent impairment, but was not significantly 
 
                 impaired [other than because of subjective 
 
                 symptoms.  Dr. Neff noted that claimant had 
 
                 minimal restriction of motion in his lumbar spine.  
 
                 Dr. Neff opined that claimant's MRI of the 
 
                 lumbarsacral spine showed degenerative changes 
 
                 consistent with claimant's age.]  He did not 
 
                 address the issue of a head injury (exhibit 1, 
 
                 pages 1-4).
 
            
 
                 [On September 17, 1990, claimant returned for a recheck 
 
            of his low back.  The medical report of September 1990 is in 
 
            the medical reports of Dr. Blessman, but the initials 
 
            following the report are "DTB", Dr. Blessman's initials are 
 
            JLB.  The author of the report is presumed to be David T. 
 
            Berg, M.D., a physician in Dr. Blessman's group.  Dr. Berg 
 
            opined that claimant could try to return to his regular 
 
            duties (exhibit 1, p. 6).]
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                    Based on all the evidence in the record, it is 
 
                 found that claimant does have a chronic strain of 
 
                 his back as a result of the February 27, 1989 
 
                 injury.  That strain has produced a five percent 
 
                 permanent impairment of the body as a whole *****. 
 
            
 
                    It is found that it is possible, though not 
 
                 probable, that claimant suffered any permanent 
 
                 head injury as a result of the February 27, 1989 
 
                 fall.  The general consensus of the evaluating 
 
                 psychologists and physicians is that there is no 
 
                 clear indication of a permanent head injury.  In 
 
                 the absence of a clear indication of such an 
 
                 injury, the existence of any such injury can be 
 
                 deemed only possible, rather than probable.
 
            
 
                    It was not unreasonable for Bruce Welch to 
 
                 devote his attention to his academic studies 
 
                 rather than to also hold employment during the 
 
                 time he has been attending Hamilton Business 
 
                 College.  In view of his well-established 
 
                 preexisting learning disability, his decision to 
 
                 devote full attention to his studies rather than 
 
                 compromise his academic achievement with a 
 
                 part-time job was prudent.  It certainly does not 
 
                 indicate any lack of motivation.  The course of 
 
                 study which he has selected seems appropriate in 
 
                 view of his capabilities and limitations.  The 
 
                 decision was made with the concurrence of the Iowa 
 
                 Division of Vocational Rehabilitation (exhibit 1, 
 
                 pages 133-137).  It is also noted that private 
 
                 vocational consultation services were provided by 
 
                 Crawford Health & Rehabilitation Services as early 
 
                 as June 1989.  Their reports issued over the 
 
                 course of a year did not indicate that they had 
 
                 found any actual job openings for claimant which 
 
                 he could likely obtain and which would be more 
 
                 appropriate for him than the course of study and 
 
                 career fields which claimant adopted with the 
 
                 assistance of the state vocational rehabilitation 
 
                 division (exhibit 1, pages 138-155).
 
            
 
                 *****
 
            
 
                 [The disputed bill with Mercy Hospital was 
 
                 incurred on May 26, 1989.  Claimant received 
 
                 treatment from both Dr. Blessman and John Dooley, 
 
                 M.D. at the Mercy Pain Center on that date.  
 
                 Claimant testified that he did not receive 
 
                 treatment for other conditions while at the pain 
 
                 center.  The only reason claimant was under 
 
                 treatment and in the pain center was for treatment 
 
                 of the February 27, 1989 work injury.  A causal 
 
                 connection exists between the medical bill 
 
                 incurred on May 26, 1989 and claimant's February 
 
                 27, 1989 work injury.]  ***** It is found that the 
 
                 charges at Mercy Hospital and for the exercise 
 
                 bicycle were all incurred at the express direction 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 of an authorized physician in providing treatment 
 
                 to claimant for the results of the February 27, 
 
                 1989 work injury.
 
            
 
                                conclusions of law
 
            
 
                 The sole issue on appeal is the extent of claimant's 
 
            industrial disability as a result of his February 27, 1989 
 
            work injury.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            27, 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 
 
            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).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton, 253 Iowa 285, 110 
 
            N.W.2d 660.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  This is so as impairment and disability are not 
 
            synonymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the 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 
 
            disability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial 
 
            disability.   See Peterson v. Truck Haven Cafe, Inc., 
 
            (Appeal Decision, February 28, 1985); Christensen v. Hagen, 
 
            Inc., (Appeal Decision, March 26, 1985).
 
            
 
                 A defendant employer's refusal to give any sort of work 
 
            to a claimant after he suffers his affliction may justify an 
 
            award of disability.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980). 
 
            
 
                 Claimant was born March 3, 1958 and was thirty-one 
 
            years old at the time of his February 27, 1989 work injury.  
 
            Claimant obtained his GED and at the time of the hearing was 
 
            enrolled in Hamilton Business College studying in the areas 
 
            of data processing, and travel and tourism.  Claimant 
 
            testified that he is maintaining an excellent grade point at 
 
            Hamilton.  It is speculation to consider claimant's probable 
 
            future earnings as a result of his education.  Stewart v. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Crouse Cartage Co., file number 738644 (App. Decn., February 
 
            20, 1987); Meier v. John Kirby, Inc., file number 826937 
 
            (App. Decn., March 31, 1989).  Claimant's enrollment in 
 
            business school indicates that claimant is motivated.  
 
            Despite the fact that claimant may have a  learning 
 
            disability, he has good intellectual capacity as displayed 
 
            by his success in school.
 
            
 
                 The majority of claimant's work experience is in the 
 
            area of heavy labor.  Claimant worked as an auto mechanic, 
 
            machine operator, assembly line worker and truck driver.  
 
            Claimant's job with the defendant-employer required heavy 
 
            lifting, and twisting.  Claimant was earning approximately 
 
            $8.00 an hour when he sustained his work injury on February 
 
            27, 1989.  
 
            
 
                 There is no evidence that claimant had any injuries 
 
            prior to his February 27, 1987 work injury.  Claimant 
 
            sustained an injury to his back injury on February 27, 1989 
 
            when he fell 18 inches and landed on his back.  Dr. Blessman 
 
            imposed work restrictions upon claimant in 1989.  In 
 
            September 1990, Dr. Berg released claimant to return to his 
 
            regular duties with no comment about claimant's work 
 
            restrictions.  Dr. Blessman opined that claimant's back 
 
            strain produced a five percent permanent impairment of the 
 
            body as a whole.  Dr. Neff confirmed claimant's five percent 
 
            permanent impairment of the body as a whole.
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is determined that Bruce Welch 
 
            experienced a 20 percent reduction of his earning capacity 
 
            as a result of the February 27, 1989 injury.  This entitles 
 
            him to recover 100 weeks of compensation for permanent 
 
            partial disability under Iowa Code section 85.34(2)(u).
 
            
 
                 The employer's right to choose the medical treatment is 
 
            the right to select the provider, not the right to invade 
 
            the province of medical professionals or to substitute the 
 
            judgment of an insurance adjuster for that of a physician 
 
            when determining what tests or treatment should be employed.  
 
            Pote v. Mickow Corp., file number 694639 (Review-Reopening 
 
            Decn., June 17, 1986); also see Martin v. Armour-Dial, Inc., 
 
            file number 754732 (Arb. Decn., July 31, 1985).
 
            
 
                 It has been previously found that the expenses in the 
 
            amount of $300.75 at Mercy Hospital and in the amount of 
 
            $276.64 for an exercise bicycle were all proximately caused 
 
            by the February 27, 1989 injury and were reasonable 
 
            treatment provided by an authorized physician (exhibit 2).  
 
            The employer is therefore responsible for payment of those 
 
            expenses under the provisions of Iowa Code section 85.27.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE it is ordered: 
 
            
 
                 That defendants shall pay claimant one hundred (100) 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            weeks of compensation for permanent partial disability at 
 
            the stipulated rate of two hundred thirty-eight and 42/100 
 
            dollars ($238.42) per week payable commencing July 28, 1989.  
 
            
 
                 That defendants are entitled to credit for the 
 
            twenty-five (25) weeks of permanent partial disability 
 
            compensation previously paid.  
 
            
 
                 That accrued but unpaid balance of the award shall be 
 
            paid to claimant in a lump sum, together with interest 
 
            pursuant to Iowa Code section 85.30 computed from the date 
 
            each payment came due until the date of its actual payment.
 
            
 
                 That defendants pay claimant's bill with Mercy Hospital 
 
            in the amount of three hundred and 75/100 dollars ($300.75) 
 
            and that defendants reimburse claimant for the cost of the 
 
            prescribed exercise bicycle in the amount of two hundred 
 
            seventy-six and 64/100 dollars ($276.64).
 
            
 
                 That defendants pay the cost of this action including 
 
            the costs of transcription of the arbitration hearing.
 
            
 
                 That defendants file claim activity reports pursuant to 
 
            rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            West Des Moines, Iowa  50265
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed December 24, 1991
 
            Byron K. Orton
 
            MGT
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            BRUCE WELCH,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 911226
 
            STONE CONTAINER CORPORATION,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1803
 
            Held that claimant proved entitlement to 20 percent 
 
            permanent partial disability benefits as a result of 
 
            February 27, 1989 work injury.  
 
            Claimant was born March 23, 1958 and was 31 years old at the 
 
            time of his February 27, 1988 work injury.  The majority of 
 
            claimant's work experience is in the area of heavy labor.  
 
            Claimant obtained his GED and at the time of the hearing was 
 
            enrolled in Hamilton Business College.  Claimant maintained 
 
            an excellent grade point at Hamilton.  
 
            Claimant sustained an injury to his back on February 27, 
 
            1989 when he fell 18 inches and landed on his back.  
 
            Claimant's physician opined that claimant's back strain 
 
            produced a five percent permanent impairment to the body as 
 
            a whole as a result of his February 27, 1989 work injury.  
 
            Claimant's physician imposed work restrictions upon claimant 
 
            in 1989; however, he released claimant to return to his 
 
            regular duties with no comment about claimant's work 
 
            restrictions.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRUCE WELCH,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 911226
 
            STONE CONTAINER CORPORATION,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Bruce 
 
            Welch against his former employer, Stone Container 
 
            Corporation, and American Motorists Insurance.  Claimant 
 
            seeks compensation for permanent partial disability and 
 
            payment of certain expenses incurred with Mercy Hospital and 
 
            the purchase cost of an exercise bicycle.  The primary 
 
            issues to be determined are the nature and extent of 
 
            permanent partial disability which was proximately caused by 
 
            the February 27, 1989 injury and whether that injury was a 
 
            proximate cause for the medical expenses which claimant 
 
            seeks to recover.
 
            
 
                 The case was heard at Des Moines, Iowa on October 8, 
 
            1990.  The evidence consists of testimony from Bruce Welch 
 
            and Thomas Riggs.  The record also contains joint exhibits 1 
 
            through 17.  By agreement of the parties, official notice 
 
            was taken of Table 49 in the Third Edition of the Guides to 
 
            the Evaluation of Permanent Impairment published by the 
 
            American Medical Association.
 
            
 
                                 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.
 
            
 
                 Bruce Welch is a 32-year-old married man who dropped 
 
            out of high school during the tenth grade.  Subsequent to 
 
            the injury in this case, he obtained a GED.  At the time of 
 
            hearing, he was attending Hamilton School of Business 
 
            studying the fields of data processing, travel and tourism.  
 
            He was maintaining excellent grades and was scheduled to 
 
            complete the course in December 1990.  It was anticipated 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            that, with this training, he would be able to obtain 
 
            employment which would provide a starting wage in the range 
 
            of $4.50 to $5.50 per hour (exhibit 1, page 139).  Those 
 
            projections are found to be correct.
 
            
 
                 Prior to obtaining work with Stone Container 
 
            Corporation, Bruce had worked as an auto mechanic, stock 
 
            boy, machine operator, assembly line worker, painter, 
 
            welder, brake press operator, truck driver and had also 
 
            performed several functions at the Firestone Tire plant.  In 
 
            his work for Stone Container, claimant had initially worked 
 
            collecting and banding scrap paper.  He then worked as a 
 
            temporary stacker in the pressroom.  At the time of injury, 
 
            he worked as a back tender in the tuber department.  All of 
 
            the jobs claimant performed during his life have required 
 
            substantial physical activity, agility and strength.  At the 
 
            time of injury, claimant was earning approximately $8.00 per 
 
            hour (exhibit 10, page 214).  Other than for Firestone, 
 
            claimant's earnings with Stone Container were the highest he 
 
            had ever achieved.
 
            
 
                 Bruce was injured on February 27, 1989 while walking 
 
            across a catwalk which was approximately 18 inches above the 
 
            floor.  He fell, landing on his back.  It is unclear with 
 
            regard to which part of his body first struck the concrete 
 
            floor when he fell.  It might have been his head or it might 
 
            have been his buttocks.  Bruce was stunned by the fall.  It 
 
            is found that he did black out and subsequently vomited.  He 
 
            was taken to Mercy Hospital where he remained until being 
 
            discharged on March 3, 1989.  He was diagnosed as having a 
 
            cerebral contusion, nonhemorrhagic and a severe myofascial 
 
            strain and sprain of his lumbosacral, dorsal and cervical 
 
            spine (exhibit 1, page 21).
 
            
 
                 James L. Blessman, M.D., was claimant's initial 
 
            treating physician.  On March 21, 1989, he entered in his 
 
            notes that claimant's final diagnosis was a myofascial 
 
            strain of the cervical and lumbosacral spine and status 
 
            post-cerebral contusion (exhibit 1, page 19).  Nerve blocks 
 
            were employed to treat claimant's continued complaints, but 
 
            with only limited success.  A note dated April 6, 1989 
 
            indicated that Dr. Blessman had contacted Stone Container to 
 
            request that Bruce be allowed to return to work at limited 
 
            duty.  The note indicates that the request was denied.  When 
 
            testifying at hearing, Tom Riggs, the Stone Container 
 
            Corporation Human Resources Manager, testified that in the 
 
            past the company had problems when placing injured employees 
 
            back to work.  He related that with claimant's 40-pound 
 
            lifting restriction, there was no work available for 
 
            claimant within the company as all require at least 50 
 
            pounds of lifting ability.
 
            
 
                 Bruce entered the Mercy Hospital Pain Center program on 
 
            May 26, 1989 in order to seek relief from his complaints of 
 
            headaches and back pain.  He was found to have degenerative 
 
            disease in his lumbar spine.  During the work capacity 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            evaluation, it was noted that Bruce demonstrated 
 
            considerable symptom magnification (exhibit 1, page 95; 
 
            exhibit 13, page 17).  At the time of discharge, Dr. 
 
            Blessman indicated that he felt it would be safe to restrict 
 
            claimant's work activities to lifting no more than 40 pounds 
 
            from floor to shoulder level and from lifting no more than 
 
            15 pounds above shoulder level.  He also recommended that 
 
            Bruce be allowed a break every hour which would allow him to 
 
            sit for five minutes (exhibit 1, pages 5 and 95).
 
            
 
                 Bruce Welch has been extensively tested and treated by 
 
            a number of medical service providers.  He was treated by 
 
            psychiatrist Walter E. Thompson, M.D., for depression and an 
 
            impulse control disorder (exhibit 1, pages 32-35).
 
            
 
                 A number of psychologists have evaluated Bruce.  
 
            Michael Oliveri, Ph.D., found claimant to be of average 
 
            general intelligence and to also have a learning disability 
 
            which probably preexisted his injury (exhibit 12, pages 
 
            19-21; exhibit 1, page 40).  Dr. Oliveri found some 
 
            indications that claimant may be affected by residuals from 
 
            a mild head injury, but he was unable to characterize the 
 
            likelihood of any permanent head injury as being any more 
 
            certain than merely possible (exhibit 12, pages 39, 48 and 
 
            57).
 
            
 
                 Psychologist Eva Christensen, Ph.D., tested claimant 
 
            and found the tests compatible with claimant having a 
 
            pre-injury learning disability (exhibit 12, pages 52 and 53; 
 
            exhibit 1, pages 134-136; exhibit 17).
 
            
 
                 Psychologist Dianne Alber, Ph.D., conducted an MMPI and 
 
            interpreted the results as being consistent with a 
 
            psychophysiological or neurotic diagnosis.  The results were 
 
            interpreted to indicate that claimant may complain of 
 
            headaches, back pain, nausea, numbness of extremities and 
 
            sleep disturbance.  It indicated  a likelihood of secondary 
 
            gain being associated with the symptomatology (exhibit 1, 
 
            pages 46-49).
 
            
 
                 Psychologist Daniel Tranel, Ph.D., found claimant to 
 
            have a developmental learning disability.  He found no 
 
            indication of brain injury (exhibit 1, page 59).
 
            
 
                 Claimant was also treated by Steven R. Adelman, D.O., a 
 
            neurologist.  On May 17, 1989, Dr. Adelman indicated that he 
 
            was surprised by the fact that claimant's symptoms had 
 
            continued.  His impression at that time was that claimant 
 
            had a cervical strain with muscle contraction headaches and 
 
            also some lumbar and thoracic strain (exhibit 1, page 50).  
 
            Dr. Adelman reviewed the CT scans of claimant's brain which 
 
            had been conducted shortly following the injury.  He 
 
            concluded that there was not an actual cerebral contusion, 
 
            but only a concussion.  It was unclear from the record with 
 
            regard to whether Dr. Adelman made that determination based 
 
            upon a medical history which involved claimant landing first 
 
            on his buttocks, rather than landing on his head and also 
 
            upon a history showing no loss of consciousness (exhibit 16, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            pages 8-13).  Dr. Adelman examined claimant and found a 
 
            normal neurological examination, except for limited neck 
 
            range of motion and what was characterized as demonstrated 
 
            pain behavior.  He diagnosed claimant as having a cervical 
 
            strain and muscle contraction headaches and also lumbar and 
 
            thoracic strain.  He found no evidence of a serious 
 
            intracranial injury (exhibit 16, page 16).
 
            
 
                 Claimant has also been evaluated by orthopaedic surgeon 
 
            Scott B. Neff, D.O., and physical therapist Thomas W. Bower, 
 
            L.P.T.  Dr. Neff concurred with the activity restrictions 
 
            recommended by Dr. Blessman.  He went on to indicate that 
 
            claimant had a five percent permanent impairment, but was 
 
            not significantly impaired.  He did not address the issue of 
 
            a head injury (exhibit 1, pages 1-4).
 
            
 
                 Based on all the evidence in the record, it is found 
 
            that claimant does have a chronic strain of his back as a 
 
            result of the February 27, 1989 injury.  That strain has 
 
            produced a five percent permanent impairment of the body as 
 
            a whole and resulted in the imposition of the activity 
 
            restrictions initially recommended by Dr. Blessman and 
 
            confirmed by Dr. Neff.  The impairment rating and activity 
 
            restrictions are found to be appropriate.
 
            
 
                 It is found that it is possible, though not probable, 
 
            that claimant suffered any permanent head injury as a result 
 
            of the February 27, 1989 fall.  The general consensus of the 
 
            evaluating psychologists and physicians is that there is no 
 
            clear indication of a permanent head injury.  In the absence 
 
            of a clear indication of such an injury, the existence of 
 
            any such injury can be deemed only possible, rather than 
 
            probable.
 
            
 
                 It was not unreasonable for Bruce Welch to devote his 
 
            attention to his academic studies rather than to also hold 
 
            employment during the time he has been attending Hamilton 
 
            Business College.  In view of his well-established 
 
            preexisting learning disability, his decision to devote full 
 
            attention to his studies rather than compromise his academic 
 
            achievement with a part-time job was prudent.  It certainly 
 
            does not indicate any lack of motivation.  The course of 
 
            study which he has selected seems appropriate in view of his 
 
            capabilities and limitations.  The decision was made with 
 
            the concurrence of the Iowa Division of Vocational 
 
            Rehabilitation (exhibit 1, pages 133-137).  It is also noted 
 
            that private vocational consultation services were provided 
 
            by Crawford Health & Rehabilitation Services as early as 
 
            June 1989.  Their reports issued over the course of a year 
 
            did not indicate that they had found any actual job openings 
 
            for claimant which he could likely obtain and which would be 
 
            more appropriate for him than the course of study and career 
 
            fields which claimant adopted with the assistance of the 
 
            state vocational rehabilitation division (exhibit 1, pages 
 
            138-155).
 
            
 
                 The situation which exists is that the injury made 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant unable to continue in his former employment.  The 
 
            activity restrictions from the physicians make him capable 
 
            of performing few, if any, of his prior employments.  If the 
 
            projections of claimant and the vocational consultant 
 
            regarding employment opportunities following his education 
 
            and training are correct, he will experience a reduction in 
 
            actual earnings from the $8.00 per hour level he enjoyed at 
 
            Stone Container to approximately $5.00 per hour.  If it were 
 
            not for claimant's action in obtaining further schooling 
 
            through the Hamilton Business College, his chances of 
 
            finding employment and wage levels would likely be less than 
 
            what is now projected.
 
            
 
                 The disputed bill with Mercy Hospital was incurred at 
 
            the direction of the authorized treating physician.  In the 
 
            absence of any evidence or indication to the contrary, it is 
 
            inferred that a licensed physician employs only that 
 
            treatment which is reasonable and necessary.  The only 
 
            reason claimant was under treatment and in the pain center 
 
            was the injury which is the subject of this case.  It is 
 
            found that the charges at Mercy Hospital and for the 
 
            exercise bicycle were all incurred at the express direction 
 
            of an authorized physician in providing treatment to 
 
            claimant for the results of the February 27, 1989 injury.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            27, 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 
 
            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 there can possibly be some dispute in the 
 
            evidence with regard to the causation of the five percent 
 
            permanent impairment rating, there is no dispute with regard 
 
            to the fact that the activity restrictions which have been 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            imposed resulted from the February 27, 1989 injury.  It is 
 
            those activity restrictions which have restricted claimant's 
 
            employability.  Their effect upon his employability would be 
 
            the same regardless of whether the impairment rating 
 
            assigned were zero percent or fifty percent.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 A defendant employer's refusal to give any sort of work 
 
            to a claimant after he suffers his affliction may justify an 
 
            award of disability.   Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).  Refusal to employ is strong 
 
            evidence of lack of employability.  Sunbeam Corp. v. Bates, 
 
            271 Ark. 385, 609 S.W.2d 102 (App. 1980); Army & Air Force 
 
            Exchange Serv. v. Neuman, 278 F. Supp. 865 (W. D. La. 1967).
 
            
 
                 In this case, it is apparent that Bruce Welch will 
 
            experience a very substantial reduction in his actual 
 
            earnings as a result of his loss of his employment with 
 
            Stone Container Corporation.  The loss would likely have 
 
            been greater had he not, on his own, without assistance from 
 
            Stone Container Corporation, undertaken a course of study to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            improve his employability and his earning capacity.  The 
 
            permanent loss of earning capacity should actually be 
 
            evaluated as it exists at the end of the healing period, 
 
            rather than as it exists after the claimant has enhanced his 
 
            earning capacity through the expenditure of his own funds 
 
            and efforts by obtaining retraining.  Stewart v. Crouse 
 
            Cartage Co., file number 738644 (App. Decn., February 20, 
 
            1987); Meier v. John Kirby, Inc., file number 826937 (App. 
 
            Decn., March 31, 1989).
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is determined that Bruce Welch has 
 
            experienced a 35 percent reduction of his earning capacity 
 
            as a result of the February 27, 1989 injury.  This entitles 
 
            him to recover 175 weeks of compensation for permanent 
 
            partial disability under Iowa Code section 85.34(2)(u).
 
            
 
                 The employer's right to choose the medical treatment is 
 
            the right to select the provider, not the right to invade 
 
            the province of medical professionals or to substitute the 
 
            judgment of an insurance adjuster for that of a physician 
 
            when determining what tests or treatment should be employed.  
 
            Pote v. Mickow Corp., file number 694639 (Review-Reopening 
 
            Decn., June 17, 1986); also see Martin v. Armour-Dial, Inc., 
 
            file number 754732 (Arb. Decn., July 31, 1985).
 
            
 
                 It has been previously found that the expenses in the 
 
            amount of $300.75 at Mercy Hospital and in the amount of 
 
            $276.64 for an exercise bicycle were all proximately caused 
 
            by the February 27, 1989 injury and were reasonable 
 
            treatment provided by an authorized physician (exhibit 2).  
 
            The employer is therefore responsible for payment of those 
 
            expenses under the provisions of Iowa Code section 85.27.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Bruce Welch 
 
            one hundred seventy-five (175) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of two 
 
            hundred thirty-eight and 42/100 dollars ($238.42) per week 
 
            payable commencing July 28, 1989.  Defendants are entitled 
 
            to credit for the twenty-five (25) weeks of permanent 
 
            partial disability compensation previously paid.  The 
 
            accrued but unpaid balance of the award shall be paid to 
 
            claimant in a lump sum, together with interest pursuant to 
 
            Iowa Code section 85.30 computed from the date each payment 
 
            came due until the date of its actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            bill with Mercy Hospital in the amount of three hundred and 
 
            75/100 dollars ($300.75) and that defendants reimburse 
 
            claimant for the cost of the prescribed exercise bicycle in 
 
            the amount of two hundred seventy-six and 64/100 dollars 
 
            ($276.64).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed February 11, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BRUCE WELCH,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 911226
 
            STONE CONTAINER CORPORATION,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803
 
            Permanent partial disability is determined at end of healing 
 
            period, not at some subsequent time after the claimant has 
 
            improved himself through retraining at his own expense.
 
            Thirty-two-year-old claimant with a work history of physical 
 
            labor, awarded 35 percent permanent partial disability due 
 
            to injury which produced permanent back strain, but severe 
 
            activity restrictions from the treating physicians.  He was 
 
            not allowed to return to work by his employer and 
 
            experienced substantial reduction in actual earnings.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DENNIS WARNKE, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 911268
 
            BADDING CONSTRUCTION CO.,     
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            UNITED STATES FIDELITY AND    
 
            GUARANTY COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Dennis Warnke, against his employer, Badding 
 
            Construction Co., and its insurance carrier, United States 
 
            Fidelity and Guaranty Company, to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an injury 
 
            sustained on February 10, 1989.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner in Fort Dodge, Iowa, on December 16, 1993.  A 
 
            first report of injury has been filed.  The record consists 
 
            of the testimony of claimant, of Donna Warnke, and of Robert 
 
            Badding as well as of claimant's exhibits 1 and 2 and 
 
            defendants' exhibit B.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties agree to 
 
            the following:
 
            
 
                 1.  An employer-employee relationship existed between 
 
            claimant and the employer on February 10, 1989;
 
            
 
                 2.  Claimant did receive an injury which arose out of 
 
            and in the course of his employment on February 10, 1989;
 
            
 
                 3.  Claimant's injury produced a period of temporary 
 
            total/ healing period disability for which claimant has been 
 
            appropriately compensated; 
 
            
 
                 4.  The commencement date for any permanent partial 
 
            disability to which claimant is entitled is January 1, 1990; 
 
            
 
                 5.  Claimant had a gross weekly wage of $295.51 and was 
 
            married and entitled to two exemptions when injured 
 
            resulting in a weekly compensation rate of $191.66; and
 
            
 
                 6.  Defendants are entitled to credit for 10.428 weeks 
 
            of compensation paid at the stipulated rate.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether a causal relationship exists between the 
 
            injury and claimed permanent partial disability; and
 
            
 
                 2.  The extent of any permanent disability entitlement.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 49-year-old gentleman who completed ninth 
 
            grade and received a GED in 1980.  Claimant has worked with 
 
            the employer since the mid-1960s and continues to work with 
 
            the employer.  Claimant has performed a variety of services 
 
            for the employer including, finish carpentry work, seamless 
 
            flooring application, basement excavation, machine operator, 
 
            machine maintenance person and employee supervision.  
 
            Claimant injured himself in the course of his employment 
 
            when he cut elevator cables such that the elevator booth 
 
            dropped into the basement with claimant's head pinned 
 
            alongside the wall.  Claimant hit the side of his face on 
 
            the elevator.  
 
            
 
                 Claimant was transported to Bergan Mercy Hospital on 
 
            the injury date.  John M. Hannam, M.D., a neurologist 
 
            examined claimant on that day and recorded the following 
 
            initial impressions:  1) closed head injury with concussion; 
 
            2) left orbital blowout fracture; 3) left manipular 
 
            fracture; 4) multiple facial lacerations; 5) intra nasal 
 
            hematoma; and 6) possible maxillary sinus fracture.  Joel 
 
            Beicher, M.D., performed a repair of the orbital floor 
 
            blowout fracture and inserted an orbital floor prosthetic.  
 
            
 
                 Michael P. McDermott, D.D.S., oral and maxillo-facial 
 
            surgeon, examined claimant on or about February 11, 1989 and 
 
            found severe left face edema; multiple lacerations of the 
 
            head, nose, and left eye, decreased motion of the mandible; 
 
            point tenderness over the mandibular left body; intraoral 
 
            bleeding with lacerations; malocculsion; and left 
 
            temporomandibular joint tenderness.  On February 13, 1989, 
 
            Dr. McDermott performed open and closed reduction of the 
 
            mandibular fractures and closure of the intraoral 
 
            lacerations.  
 
            
 
                 I. A. Priluck, M.D., also examined and treated claimant 
 
            during his Bergan Mercy hospitalization.  Dr. Priluck 
 
            diagnosed claimant as having an extension subconjunctive 
 
            hemorrhage related to a left eye laceration.  Dr. Priluck 
 
            performed an exploration of the left eye globe including 
 
            peritomy and isolation of the four major reti muscles with 
 
            indirect ophthalmoscopy with scleral depression of the left 
 
            eye.  The laceration of the left upper eyelid and other 
 
            facial lacerations were repaired.  On examination of the 
 
            right globe, claimant had scleral depression as well as a 
 
            right retinal tear.  On May 30, 1989, Dr. Priluck stated 
 
            that claimant had visual acuity of 20-60 on the right and 
 
            20-30 on the left.  He indicated that claimant's right 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            retinal tear had resolved as of that date and opined that 
 
            the tear had been directly related to claimant's February 
 
            10, 1989 injury.
 
            
 
                 Brian J. Weaver, O.D., a therapeutically certified 
 
            optometrist, examined claimant on July 29, 1989.  Dr. Weaver 
 
            stated that claimant then had a fully healed right retinal 
 
            tear.  He stated that there are numerous areas in the right 
 
            eye that may be susceptible to problems in the future.  He 
 
            also stated that as of July 29, 1989 claimant had 
 
            conjunctival flaps on the left eye which were irritating to 
 
            claimant.  He opined that it was more than likely that these 
 
            flaps would not repair due to the proximity of the sclera 
 
            and the underlying retina.
 
            
 
                 On May 16, 1991, Dr. McDermott stated that claimant had 
 
            had postoperative complications of left facial pain; left 
 
            temporomandibular joint dysfunction, left periorbital pain; 
 
            left sinus and maxillary problems with parathesia as well as 
 
            painful facial dysfunction and temporomandibular joint 
 
            derangement.  Dr. McDermott opined that these were permanent 
 
            conditions.  He stated it would be difficult for claimant to 
 
            work in heat, humidity and cold.  He advised that claimant 
 
            be "cautious" with heavy lifting and that claimant avoid 
 
            being struck on the left face or jaw.
 
            
 
                 On November 22, 1993, Dr. McDermott reiterated that 
 
            claimant's facial pain resulted from his 1989 injury.  He 
 
            further stated that claimant's permanent problems of 
 
            dysfunctional sinusitus and temporomandibular joint pain 
 
            would affect claimant's ability to work with heavy equipment 
 
            outdoors since changes in the ambient temperature and 
 
            pressure would increase claimant's pain and dysfunction.  
 
            Dr. McDermott opined that claimant had a 14 percent 
 
            permanent partial impairment to the body as a whole on 
 
            account of these conditions per the Guidelines to Evaluation 
 
            of Impairment of the Oral and Maxillo-facial Region, 1992 
 
            Edition and the AMA Guides to the Evaluation of Permanent 
 
            Impairment, Third Edition Revised.  
 
            
 
                 Timothy C. Fitzgibbons, M.D., an orthopedic surgeon, 
 
            saw claimant on a nonspecified date for discomfort in the 
 
            patella and patellar tendons.  His impression was of a 
 
            probable post-traumatic compression syndrome caused by the 
 
            February 10, 1989 injury.
 
            
 
                 Claimant testified that while he continues to work for 
 
            the employer he does not believe he does things as well as 
 
            he did before the injury.  He reported that he has 
 
            difficulty doing "close work".  He believes his side vision 
 
            is not as good as it used to be and that even though he 
 
            works with more modern machinery now that his job is tiring 
 
            and more stressful than prior to the injury.  Claimant 
 
            acknowledged he now works a 40-hour, five-day week.  He 
 
            reported that he has pain while working approximately three 
 
            of the five days and has pain almost every night upon 
 
            completing work.  He stated that cold weather bothers his 
 
            lower jaw and that high humidity affects his [left] eye and 
 
            his sinuses.  Claimant acknowledged that since his return to 
 
            light duty work on April 24, 1989, he has missed work only 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            four times for doctor visits.  Claimant was earning $7.30 
 
            per hour when injured; he now earns $9.30 per hour.  He 
 
            works approximately the same number of hours per week as he 
 
            did prior to his injury.  Claimant stated that he feared he 
 
            would be unable to continue working with the employer for 
 
            another 15 years.  He had no current plans to terminate his 
 
            work with the employer, however.  
 
            
 
                 Donna Warnke, claimant's spouse of 32 years, 
 
            collaborated claimant's testimony that claimant appears to 
 
            have greater pain and irritability in the evenings after 
 
            working than he had prior to his injury.  
 
            
 
                 Robert Badding, owner of Badding Construction Co., 
 
            testified that claimant has been with the company for 24 
 
            years and that he is satisfied with claimant's work and 
 
            hopes claimant will continue with the company until claimant 
 
            retires.  He characterized claimant as a conscientious 
 
            worker who is very good at what he does.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 We first consider the question of whether claimant's 
 
            claimed permanent partial disability is causally related to 
 
            his work injury.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. McDermott, claimant's treating oral and 
 
            maxillo-facial surgeon, has opined that claimant's ongoing 
 
            facial complaints including his complaints of facial pain, 
 
            temporamandibular joint pain and sinusitis relate to 
 
            claimant's February 10, 1989 injury.  Dr. McDermott's 
 
            testimony is uncontroverted.  Additionally, the medical 
 
            history is consistent with the doctor's opinion.  Claimant 
 
            has established that his ongoing facial complaints are 
 
            causally related to his February 10, 1989 work injury.  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Dr. Fitzgibbons has opined that claimant's discomfort 
 
            in the patella and patellar tendons was caused by claimant's 
 
            injury.  These conditions also are established as causally 
 
            related to claimant's work injury in that Dr. Fitzgibbons's 
 
            opinion is uncontroverted.  It is noted, however, that 
 
            claimant in no matter testified as to express difficulties 
 
            in his work or his activities of daily living related to 
 
            these conditions.  
 
            
 
                 Likewise, claimant's medical history relates his 
 
            continuing right and left eye problems to his February 10, 
 
            1989 work injury.  
 
            
 
                 Claimant has established a causal relationship between 
 
            his February 10, 1989 work injury and his claimed permanent 
 
            partial disability.  
 
            
 
                 We next consider the nature and extent of claimant's 
 
            permanent partial disability.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 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.
 
            
 
                 Dr. McDermott has assigned claimant a 14 percent 
 
            permanent partial impairment of the body as a whole and has 
 
            opined that claimant would have difficulties working outside 
 
            and working with heavy machinery.  Claimant continues to 
 
            work outdoors for the employer as a heavy equipment 
 
            operator.  Dr. McDermott has not expressly restricted 
 
            claimant from continuing that work only expressed an opinion 
 
            that it would be difficult and would result in discomfort.  
 
            Claimant is earning approximately $2.00 more per hour now 
 
            than he earned with the employer when injured.  Claimant is 
 
            a long-term employee of the employer.  The employer has 
 
            expressed satisfaction with claimant's work and expressed a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            desire to continue claimant in its employ.  Claimant's work 
 
            with the employer is work for which claimant has both 
 
            qualifications and experience.  It is possible that should 
 
            claimant at some point cease working for the employer, that 
 
            claimant would have some difficulty finding other work which 
 
            difficulty would relate to his permanent conditions 
 
            resulting from his work injury.  To entertain that 
 
            possibility at this point is to engage in mere speculation, 
 
            however.  Claimant currently has no loss of earnings on 
 
            account of his work injury and has not demonstrated any 
 
            significant loss of earnings capacity as regards his work 
 
            injury.  As noted, claimant may have some greater difficulty 
 
            finding other work were claimant to need to seek other work.  
 
            Current loss of job mobility is a factor that can be 
 
            appropriately considered even where the employer has 
 
            accommodated claimant by returning claimant to work 
 
            subsequent to an injury.  Claimant is found to have a loss 
 
            of earnings capacity of 10 percent.  Therefore, claimant has 
 
            established entitlement to an award of industrial disability 
 
            of 10 percent of the body as a whole.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for fifty (50) weeks at the rate of one hundred 
 
            ninety one dollars and 66/100 ($191.66) with those payments 
 
            to commence on June 1, 1990.  
 
            
 
                 Defendants receive credit for any permanent partial 
 
            disability benefits previously paid.
 
            
 
                 Defendants pay accrued amounts in a lump sum.  
 
            
 
                 Defendants pay interest pursuant to section 85.30.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as the agency 
 
            orders.  
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Patrick W. Hall
 
            Mr. Frank J. Comito
 
            Attorneys at Law
 
            721 North Main St.
 
            Carroll, IA  
 
            
 
            Ms. Iris J. Post
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            2222 Grand Ave.
 
            P.O. Box 10434
 
            Des Moines, IA  50306
 
            
 
 
            
 
            
 
            
 
            
 
                                              1803
 
                                              Filed January 25, 1994
 
                                              Helenjean M. Walleser
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DENNIS WARNKE, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 911268
 
            BADDING CONSTRUCTION CO.,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            UNITED STATES FIDELITY AND    
 
            GUARANTY COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1803
 
            
 
                 Claimant had facial pain, continuing eye problems, and 
 
            sinusitis and temporomandibular joint problems which 
 
            claimant's treating oral and maxillo-facial surgeon related 
 
            to claimant's work injury.  The surgeon had opined that 
 
            claimant had a 14 percent body as a whole permanent partial 
 
            impairment on account of these conditions and stated that 
 
            claimant would have difficulty and discomfort in working 
 
            with heavy machinery and working in an environment where 
 
            ambient temperature and ambient pressure changed i.e. 
 
            outdoors.  Claimant continued to work outdoors for the 
 
            employer as a heavy equipment operator.  Claimant had had a 
 
            $2.00 increase in hourly wage subsequent to the date of 
 
            injury and worked approximately the same regular and 
 
            overtime hours.  Claimant did opine that he worked with pain 
 
            approximately three out of five days a week and that he 
 
            tended to have pain and discomfort and be irritable in 
 
            evenings after most workdays.  Claimant found to have 
 
            sustained a 10 percent industrial disability to the body as 
 
            a whole.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RHONDA KNOPP,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File Nos. 911271, 930441
 
            WILLIAM C. BROWN COMPANY,                   946018, 946019
 
                      
 
                 Employer,                           A P P E A L
 
                      
 
            and                                   D E C I S I O N
 
                      
 
            KEMPER INSURANCE, AND    
 
            CONTINENTAL INSURANCE CO.     
 
            c/o CLAS       
 
                      
 
                 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 July 31, 1992 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Kemper Insurance Company shall pay the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW, Suite 114
 
            Cedar Rapids, IA  52404
 
            
 
            Mr. Steven R. Cantonwine
 
            Attorney at Law
 
            Breakwater Building
 
            3708 75th Street
 
            Des Moines, IA  50322
 
            Mr. James M. Heckmann
 
            Attorney at Law
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Suite 216
 
            One CyCare Plaza
 
            Dubuque, IA  52001
 
            
 
            
 
            
 
 
            
 
          
 
            
 
                 
 
            
 
                                              1703; 1803; 2206; 2207
 
                                              3003; 4000.2; 1108.50
 
                                              Filed June 14, 1993
 
                                              Byron K. Orton
 
                      
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RHONDA KNOPP,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.                           File Nos. 911271, 930441
 
                                                    946018, 946019
 
            WILLIAM C. BROWN COMPANY,     
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            KEMPER INSURANCE and     
 
            CONTINENTAL INSURANCE CO.,    
 
            c/o CLAS, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803
 
            Provisions of the Americans With Disabilities Act were held 
 
            to have no impact on cases of industrial disability in which 
 
            the healing period ends prior to July 26, 1992.  
 
            
 
            1703
 
            Defendant employer paid claimant's regular wage for almost 
 
            the entire healing period.  However, evidence showed only 
 
            gross wages paid, not net.  Defendants are entitled only to 
 
            credit for the net amount received by claimant after payment 
 
            of all applicable taxes, and were permitted to unilaterally 
 
            establish the amount of credit due.  The agency retained 
 
            jurisdiction to determine the amount of such credit upon 
 
            claimant's petition if she disputes that calculation.
 
            
 
            1108.50; 2206; 2207
 
            After disc herniation and subsequent surgical excision, 
 
            claimant suffered a further herniation while rolling over in 
 
            bed.  This required a second surgery and entailed additional 
 
            loss of function.  The only medical opinion to address the 
 
            issue was that the "bed" herniation was directly caused as a 
 
            complication of the first surgery.  The second herniation 
 
            was held a sequela of the injury that caused the need for 
 
            the first surgery.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            3003
 
            The parties stipulated to a rate that was incorrect based on 
 
            companion stipulations as to gross weekly earnings, marital 
 
            status and exemptions.  The latter stipulations are 
 
            stipulations of fact, while the stipulation as to the rate 
 
            itself is a legal conclusion based upon those facts.  As 
 
            such, the stipulation as to rate was rejected and claimant 
 
            was awarded benefits based on her correct rate. 
 
            
 
            4000.2
 
            Although defendants' failure to pay weekly benefits was not 
 
            "fairly debatable," penalty benefits were not awarded where 
 
            the employer commendably paid claimant her regular wages 
 
            during healing period.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL L. BURNS, III,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 911473
 
            B. I. SEALS UNLIMITED         :
 
            CORPORATION,                  :
 
                                          :    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.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            L. Burns, III (claimant) commenced with the filing of a 
 
            petition on December 14, 1989 against B.I. Seals Unlimited 
 
            Corp. (B.I. Seals), employer and Aetna Casualty & Surety 
 
            Company (Aetna),(collectively defendants) B.I. Seal's 
 
            insurer for workers' compensation benefits as a result of an 
 
            alleged injury to claimant's hand and wrist occurring on 
 
            February 7, 1989.  On January 14, 1991 the matter came on 
 
            for hearing in Storm Lake, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel E. W. 
 
            Wilke of Spirit Lake Iowa and B.I. Seals and Aetna by their 
 
            counsel Judith Ann Higgs of Sioux City Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, Wayne 
 
                 Brink for the claimant.  Paul Lair testified on 
 
                 behalf of the defendants.
 
            
 
                 2.  Claimant's exhibits 1-32 and defendants' 
 
                 exhibit A.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                    
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preliminary matters
 
            
 
                 During the course of this hearing, claimant made an 
 
            offer of proof regarding the exclusion of testimony based on 
 
            an examination performed by Dr. Cofield in December of 1990.  
 
            Previously, the prehearing deputy had ruled that this 
 
            evaluation as well as any other reference to the evaluation, 
 
            examination or treatment be stricken.  This ruling remained 
 
            undisturbed during the course of the hearing.  It appears 
 
            from this writer's notes that the offer of proof in support 
 
            of the evidence from Dr. Cofield's December examination was 
 
            not ruled on.  So that the record is clear, the objection to 
 
            Dr. Cofield's testimony by the defendants is sustained and 
 
            will not be considered in this decision.(1)
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 The claimant sustained an injury on February 7, 1989, 
 
            which arose out of and in the course of employment.
 
            
 
                 The alleged injury is a cause of temporary disability 
 
            
 
                 The rate of compensation, in the event of an award, is 
 
            $173.34.  Claimant's gross wage is stipulated to be $272.00 
 
            per week.  Claimant is single.  He is entitled to two 
 
            exemptions.
 
            
 
                 The fees charged for medical services are fair and 
 
            reasonable.
 
            
 
                 The expenses were authorized by the employer.
 
            
 
                 That defendants make no claim for employee 
 
            nonoccupational group health plan benefits paid prior to 
 
            hearing.
 
            
 
                 That defendants have paid $19,122.76 of workers' 
 
            compensation benefits to claimant at the rate of $182.62 per 
 
            week prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
            Issues
 
 
 
                 The issues for resolution are as follows:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
 
 
            (1).  Deputy Walleser made it clear that the examination 
 
            performed by Dr. Cofield on December 30, 1990 occurred 
 
            outside the discovery period.  Defendants requested that 
 
            references to this evaluation of claimant, the additional 
 
            impairment rating, as well as any other reference to that 
 
            evaluation, examination or treatment be stricken from the 
 
            record and that testimony regarding the examination or 
 
            treatment not be allowed at hearing was sustained (Emphasis 
 
            added).
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                                      facts
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing, claimant was 58 years 
 
            old.  At the time of the injury, he was 56.  Claimant's 
 
            relevant educational background includes high school and 
 
            seminary training at the Immaculate Heart Seminary in El 
 
            Paso Texas.  Claimant left the seminary and joined the Air 
 
            Force in 1950.  While with the Air Force, Claimant graduated 
 
            from the University of Maryland with a bachelor of arts 
 
            degree in history.  Claimant remained in the Air Force until 
 
            December of 1970 when he retired at the rank of Lieutenant 
 
            Colonel.  Claimant saw tours of duty in Korea and Viet Nam.  
 
            Claimant was in intelligence work.  While in the military, 
 
            claimant supervised a couple of hundred service people.  
 
            Claimant was trained to fly while in the Air Force and until 
 
            three years ago, had a private pilot's license that he 
 
            voluntarily allowed to expire.  Currently, claimant receives 
 
            a military pension in the amount of $933.00 per month plus 
 
            use of a base exchange, the commissary, medical treatment, 
 
            dental treatment, and overseas flights on military aircraft.  
 
            At the time of claimant's discharge, claimant was in good 
 
            physical condition.  He had been wounded on a previous 
 
            occasion and had shrapnel removed from his leg however.  
 
            Claimant is right hand dominant.
 
            
 
                 2.  When claimant left the Air Force, claimant returned 
 
            to southwestern Iowa to be near his mother.  Claimant 
 
            obtained a job with the United States Department of 
 
            Agriculture (USDA) in southwestern Iowa.  Claimant inspected 
 
            job sites for program participants in USDA programs.  
 
            Claimant also arbitrated disputes at these job sites, 
 
            managed USDA employees, participated in placement activities 
 
            for program participants, prepared employer evaluations for 
 
            program participants and prepared evaluations for program 
 
            participants.
 
            
 
                 3.  Claimant left that job in 1970 when his mother 
 
            moved to Spencer to retire.  Thereafter, claimant had 
 
            various jobs which included deputy sheriff, jailer, car 
 
            sales, insurance sales, a housing specialist, hotel night 
 
            auditor, and a resort manager of a 53 room motel and lounge.  
 
            In each of these jobs claimant acquired transferable job 
 
            skills including bookkeeping, personnel management and 
 
            supervision, hotel and motel management, investigative 
 
            skills, knowledge of law enforcement and the legal system, 
 
            time management and general supervisory skills.
 
            
 
                 4.  While claimant was working as a housing specialist, 
 
            he fell through a stairway and injured his back.  He had 
 
            surgery and was off work for a period of time.  Claimant was 
 
            paid workers compensation for that injury.
 
            
 
                 5.  On January 4, 1989, claimant was hired by B.I. 
 
            Seals for machine work.  Claimant was paid a wage of $5.75 
 
            per hour.  Claimant was assigned to a toggle injection 
 
            machine known as a T155 Cincinnati.  B.I. Seals is a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            manufacturer of hydraulic seals made of thermal plastics.  
 
            The T155 Cincinnati is a fairly large machine, standing 
 
            about six and a half feet high, four feet wide and 23 to 24 
 
            feet long.  The thermal plastic material is injected into 
 
            the mold, pressure and heat is applied and a seal is 
 
            produced.  The molds in this machine are removable to 
 
            accommodate various sizes of seals.  The molds used in this 
 
            machine weigh less than 57 pounds.  The molds are held on 
 
            the machine with a retainer plate that weighs 48 pounds.  
 
            Some retainer plates are as light as five or six pounds.  
 
            Log books of the molds used on these machines are maintained 
 
            for quality control and production reasons.  Around the date 
 
            of claimant's injury, the molds that were used on the T155 
 
            weighed approximately 27 to 28 pounds.  The molds used the 
 
            day before the injury were lighter than 27 pounds.
 
            
 
                 6.  On February 7, 1989, claimant was working on the 
 
            T155 and was in the process of removing a mold.  When the 
 
            mold released from the sprue, it slipped and the weight of 
 
            the mold pulled his hand and wrist into the machine.  He did 
 
            not drop the mold and he did not strike his hand against any 
 
            further object in the machine.  He felt his elbow and wrist 
 
            extend.  The injury was painful.  
 
            
 
                 7.  Claimant saw David M. Lindgren, M.D., on February 
 
            27, 1989 for the injury to his hand and wrist.  Claimant 
 
            told Dr. Lindgren as a mold weighing approximately 57 pounds 
 
            slipped off a sprue and pulled his hand into the machine he 
 
            was operating.  He indicated that he had hyperextended his 
 
            elbow and extended his wrist.  Claimant reported pain in his 
 
            wrist and hand.   After an examination, Dr. Lindgren thought 
 
            that claimant had suffered muscle strain in the forearm and 
 
            ulnar nerve irritation of the cubital tunnel but without 
 
            dysfunction.  Dr. Lindgren recommended rest, pain medication 
 
            and physical therapy.  Dr. Lindgren took claimant off work 
 
            at that point.
 
            
 
                 8.  Claimant was released for light duty work on March 
 
            27, 1989.  However, no light duty work was available and 
 
            claimant did not return to work.
 
            
 
                 9.  Claimant was next referred to T. R. Van DeMark, 
 
            M.D., by Dr. Lindgren.  Dr. Van DeMark did an examination of 
 
            claimant's hand and wrist on May 2, 1989, and noted several 
 
            areas of pain.  He took x-rays that were unremarkable.  Dr. 
 
            Van DeMark thought claimant was suffering from deQuervain's 
 
            syndrome, tensosynovitis, irritation of the superficial 
 
            branch radial nerve in the right wrist, tenosynovitis of the 
 
            flexor carpi radialis tendon and pain in the right cubital 
 
            tunnel.  Dr. Van DeMark recommended a course of conservative 
 
            treatment which included medication and an occupational 
 
            therapy program.
 
            
 
                 10. Claimant next saw John J. Dougherty, M.D., on June 
 
            19, 1989.  Dr. Dougherty took a history from claimant.  The 
 
            history of the injury was not consistent with the history 
 
            given immediately after the injury.  Claimant increased the 
 
            weight of the mold that had slipped from 57 pounds to 70 
 
            pounds.  Additionally, claimant did not give a history of a 
 
            hyperextended elbow.  Rather he reported that his whole arm 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            hurt up to his shoulder.  Claimant also indicated that his 
 
            arm had been splinted while he was receiving occupational 
 
            therapy in Sioux Falls.  However, there is no mention of 
 
            this treatment in Dr. Van DeMark's notes and there is no 
 
            mention of a splint by the occupational therapist claimant 
 
            saw in Sioux Falls.
 
            
 
                 11. Dr. Dougherty's examination found that claimant's 
 
            range of motion in his wrist was satisfactory and his 
 
            strength and grip were normal.  Wrist extension and flexion 
 
            were also normal.  Flexing his wrist against resistance did 
 
            not seem to cause pain.  Claimant did experience tenderness 
 
            over the ulnar nerve at the elbow and on the volar surface 
 
            of the forearm.  During this examination claimant's shoulder 
 
            was a little stiff but he did not complain of any pain.  Dr. 
 
            Dougherty concluded that claimant had pain in his right 
 
            upper extremity with apparent previous sprain of the right 
 
            forearm and some irritation superficial branch of the radial 
 
            nerve.  He recommended conservative treatment and an EMG 
 
            study.  Dr. Dougherty noted the inconsistent history and 
 
            commented that, "Not sure he's having all the trouble he 
 
            leads one to believe".
 
            
 
                 12. Claimant next saw to Ronald L. Linscheid, M.D., an 
 
            orthopedic surgeon and surgeon of the hand at Mayo Clinic.  
 
            Claimant's history changed again when he was examined by Dr. 
 
            Linscheid.  Claimant indicated to Dr. Linscheid that he had 
 
            been changing a mold that weighed 70 pounds when the mold 
 
            fell by force of gravity pulling his arm into the machine 
 
            such that he scraped the triceps area over the edge of the 
 
            machine opening and continued to hold onto the mold with his 
 
            hand twisted in supination and wrist flexion.  Claimant told 
 
            Dr. Linscheid that a fellow employee helped him remove his 
 
            hand and the mold from the machine.  At the time of the 
 
            examination in October of 1989, claimant complained of 
 
            weakness and pain in his wrist and numbness in the thumb.  
 
            Dr. Linscheid noted some limitation in claimant's range of 
 
            motion in his wrist and marked tenderness over the second 
 
            metacarpotrapezoidal joint and to a lesser extent at the 
 
            third metacarpocapitate joint and on motions of the 
 
            scaphotrapezial joint.  There was also tenderness over the 
 
            origin of the radiocapitate and lunated ligaments from the 
 
            volar aspect of the radial styloid and also discomfort on 
 
            testing the strength of the flexor muscles to the thumb and 
 
            ring finger (Ex. 14).
 
            
 
                 13. On October 30, 1989 claimant returned for a 
 
            follow-up evaluation by Dr. Linscheid.  Claimant's EMG was 
 
            normal.  The tomograms showed a carpal bossu(2) with some 
 
            degenerative changes and some radiolucency dorsally in the 
 
            second and third carpometacarpal joints.  After reviewing 
 
            these tests with claimant, Dr. Linscheid suggested two 
 
            (2).  Dr. Linscheid described this condition in his 
 
            deposition taken on January 2, 1991.  A carpal bossu is a 
 
            prominence at the carpometacarpal joint which can be 
 
            congenital.  It is usually considered a mark of reactive 
 
            hypertrophic change of the joint secondary to sprain or 
 
            change.  By itself the condition is of no great 
 
            significance.  However, the condition can raise the 
 
            discomfort level.
 
            
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            treatment courses which included injection therapy and then 
 
            if unsuccessful, fusion surgery of the second and third 
 
            carpometacarpal with iliac crest grafting.  The injection 
 
            therapy was not successful and fusion surgery was performed 
 
            on November 6, 1989.  Two weeks after surgery, claimant was 
 
            placed in a short arm cast. Claimant's cast was removed in 
 
            December and his arm remained in a splint until February 
 
            1990.
 
            
 
                 14. Dr. Linscheid saw claimant in February and April 
 
            1990 During these examinations, they discussed claimant's 
 
            eventual return to work and participation in a work 
 
            hardening program.  In the meantime, claimant had started a 
 
            physical therapy program in March of 1990 with Ken Van Wyk 
 
            in Spirit Lake.
 
            
 
                 15. Initially, claimant was not a cooperative 
 
            participant in the work hardening program at Mayo Clinic.  
 
            Claimant was impatient.  He had an attitude of complete 
 
            disinterest and disregard (Exhibit 3, Page 7).  Claimant was 
 
            then dismissed from physical therapy.  
 
            
 
                 16. After May 3, 1990, claimant had a change of heart 
 
            regarding his therapy.  He returned on May 7, 1990 and asked 
 
            if he could participate in therapy at Mayo Clinic.  
 
            Thereafter, claimant had therapy three times a week for the 
 
            period from May 7, 1990 to June 1, 1990.  During that time 
 
            period, claimant received therapy for his wrist, forearm and 
 
            shoulders.
 
            
 
                 17. On May 14, 1990, Dr. Linscheid gave a report to Dr. 
 
            Dougherty regarding claimant's progress.  He indicated that 
 
            claimant's pain by the sixth month after surgery, claimant's 
 
            pain in his hand and wrist had largely resolved itself as a 
 
            result of the surgery.  Dr. Linscheid gave claimant a 
 
            functional impairment rating for his right arm based on the 
 
            limited motion and diminished grip strength of 20 percent of 
 
            the wrist and hand as a whole and when  converted to an 
 
            impairment of the right upper extremity it equals 18 percent 
 
            according to the AMA Guide to the Evaluation of Permanent 
 
            Impairment, (Third Edition 1990) (Ex.30, p.66).  This rating 
 
            is adopted as the correct functional impairment rating for 
 
            claimant's right arm.  See rule 343 IAC 2.4.  Dr. Linscheid 
 
            found that claimant's work injury caused this permanent 
 
            impairment.
 
            
 
                 18. During the May 3, 1990 visit, Dr. Linscheid also 
 
            noted for the first time that claimant was having increasing 
 
            problems with his right shoulder.  In connection with 
 
            claimant's shoulder, Dr. Linscheid ordered an arthrogram and 
 
            plain x-rays.  The arthrogram was normal and the x-rays 
 
            showed degenerative changes over the acromioclavicular 
 
            joint.  
 
            
 
                 20. After May 14, 1990, claimant was seen by Dr. 
 
            Linscheid for his shoulder pain rather than for follow-up on 
 
            his wrist.  On June 1, 1990, a therapist in the Physical 
 
            Medicine and Rehabilitation department at Mayo Clinic 
 
            indicated that claimant gave a very poor performance in 
 
            connection with an examination of his shoulders.  The 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conclusion was that claimant was demonstrating significant 
 
            pain dysfunction and a conservative treatment course was 
 
            recommended.  In July, the pain symptoms had not abated so 
 
            Dr. Linscheid referred claimant to Brian F. Kavanaugh, M.D., 
 
            a shoulder specialist.
 
            
 
                 21. Claimant was examined by Dr. Kavanaugh on July 24, 
 
            1990.  Dr. Kavanaugh found that claimant exhibited 
 
            significant secondary overlay of chronic pain behavior, and 
 
            histrionic gesticulation through the entire range of motion 
 
            of each shoulder.  Dr. Kavanaugh could not find anything 
 
            physiologic to explain claimant's pain.  The only objective 
 
            finding Dr. Kavanaugh could find was in the x-rays that 
 
            showed degenerative arthritis in the acromioclavicular joint 
 
            on the right side.  He ordered a series of tests including a 
 
            neck x-ray, a neurological study, and an EMG study.  All of 
 
            these tests were normal.  Dr. Kavanaugh recommended that 
 
            claimant have therapy to resolve claimant's pain.  Dr. 
 
            Kavanaugh did not indicate what caused claimant's shoulder 
 
            pain.  Thereafter, claimant had therapy for his shoulder in 
 
            Spirit Lake.
 
            
 
                 22. On September 26, 1990, Dr. Linscheid wrote to 
 
            claimant regarding the examination Dr. Kavanaugh performed.  
 
            Dr. Linscheid noted the inappropriate responses to the 
 
            examination given by claimant and went on to state:
 
            
 
                 On review of the x-rays of your shoulder, neck, 
 
                 and the arthrograms, would not suggest there is 
 
                 any serious problem n the shoulder.  I will ask 
 
                 another of my colleagues with a special interest 
 
                 in the shoulder to review this and see if he would 
 
                 be willing to see you for another opinion.  
 
                 Obviously, we do not want to see you with 
 
                 continued discomfort.  However, it is often times 
 
                 a real problem for us to separate subjective pain 
 
                 particularly when there are secondary factors 
 
                 involved such as workers' compensation.  This is 
 
                 often times a real enigma for us as if we do not 
 
                 find supporting evidence in the x-ray 
 
                 examinations, special tests, and so forth to 
 
                 explain the pain and there appear to be secondary 
 
                 pain factors involved, there is often little that 
 
                 we can add in addition.
 
            
 
                 24. On November 8, 1990, Dr. Linscheid gave claimant 
 
            restrictions in connection with his wrist and shoulder.  
 
            Claimant was instructed to avoid over head work, or lifting 
 
            objects that exceeded 10 pounds to above waist level.  
 
            Claimant was also directed to avoid activities that involve 
 
            significant amounts of shoulder movement particularly on a 
 
            repetitive basis.  Claimant could lift and carry up to 20 
 
            pounds with his right arm at the side if it didn't require 
 
            further manipulation.  Dr. Linscheid indicated that these 
 
            were permanent restrictions.  However, Dr. Linscheid did not 
 
            give a permanent impairment rating for claimant's shoulder 
 
            and there is no rating in the record.
 
            
 
                 25. In connection with claimant's ongoing shoulder 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            problems, by the time of Dr. Linscheid's deposition on 
 
            January 2, 1991 he had decided that claimant's shoulder 
 
            complaints had been caused by a strain to the right shoulder 
 
            when claimant suffered the injury to his wrist in February 
 
            of 1989.  However, Dr. Linscheid's conclusion on this point 
 
            is inconsistent with the position he took in September of 
 
            1990 after he referred claimant to a shoulder specialist.  
 
            Dr. Linscheid indicated that claimant was exhibiting chronic 
 
            pain symptoms that were inconsistent with the tests and 
 
            studies performed by Dr. Kavanaugh.  Moreover, Dr. Linscheid 
 
            found that there was no evidence of shoulder involvement 
 
            when claimant was first examined for his wrist and hand 
 
            condition.  Dr. Linscheid is not a shoulder specialist, he 
 
            is a hand specialist.  Dr. Linscheid indicated that he based 
 
            his revised opinions regarding claimant's shoulder on an MRI 
 
            study that is not in the record, a colleague's examination 
 
            that is not in the record and x-rays that show arthritic and 
 
            degenerative changes in claimant's shoulder.  Consequently, 
 
            Dr. Linscheid's opinion regarding the cause of claimant's 
 
            shoulder complaints will be disregarded.  Dr. Kavanaugh's 
 
            opinion as a shoulder specialist will be adopted as the 
 
            correct opinion regarding the condition of claimant's 
 
            shoulder and claimant's response to pain.
 
            
 
                 27. In connection with job searches, claimant contacted 
 
            employers in September 1990 regarding employment.  Claimant 
 
            was not hired by any of these employers.  Claimant has not 
 
            registered with Job Service and made contact with Iowa State 
 
            Vocational Rehabilitation in September of 1990.  Claimant 
 
            has worked for Virgil Hall for a time since his injury.  
 
            There was limited testimony regarding wage differentials 
 
            between the job claimant had at B.I. Seals and a job that 
 
            would be available for him at B.I. Seals.  There was no 
 
            testimony regarding the wage differentials between the job 
 
            at B.I. Seals and the jobs for which he applied.  Nor was 
 
            there any testimony regarding the income claimant earned 
 
            while he worked for Virgil Hall.
 
            
 
                 29. Claimant has medical expenses as follows:
 
            
 
                 Ken Van Wyk                    $480.00
 
            Mayo Clinic                  $2,497.70
 
            
 
                 The bill for services from Kenneth Van Wyk are for 
 
            treatments to claimant's shoulder.  The bill from the Mayo 
 
            Clinic has no detail and does not show an apportionment 
 
            between treatment for the shoulder and the right arm.  The 
 
            services rendered by Mayo Clinic were for an injury claimant 
 
            received at B.I. Seals.
 
            
 
                                conclusions of law
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed industrial 
 
            disability and the nature and extent of any entitlement to 
 
            benefits, if any.
 
            
 
                 The primary bone of contention is this dispute revolves 
 
            around whether claimant's injury on February 7, 1989 caused 
 
            an injury to his hand, wrist, arm and shoulder.  If the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            injury is limited to the right upper extremity, it is a 
 
            scheduled member loss governed by the schedules contained in 
 
            Iowa Code section 85.34 (1991).  If the injury includes the 
 
            shoulder it is an industrial injury to the body as a whole.  
 
            Barton v. Nevada Poultry Co., 110 N.W.2d 660, 663 (Iowa 
 
            1961).  Claimant was successful in demonstrating a right 
 
            upper extremity loss.  He failed to sustain his burden on 
 
            the causal relationship between the injury to the right 
 
            upper extremity and his shoulder complaints.
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory.  The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different, specific injuries.  Barton, 110 N.W.2d at 663;  
 
            Soukup v. Shores Co., 268 N.W. 598, 601 (Iowa 1936).  Where 
 
            there is an injury to a specific part of claimant's body, 
 
            such loss shall be compensable only to the extent provided 
 
            by the statute.  Thus by legislative edict, where the result 
 
            of an injury causes the loss of a foot, or eye etc, such 
 
            loss, together with its ensuing natural results upon the 
 
            body, is declared to be a permanent partial disability and 
 
            entitled only to the prescribed compensation.  Barton, 110 
 
            N.W.2d at 663.  However, an injury to a scheduled member 
 
            may, because of after effects (or compensatory change), 
 
            result in permanent impairment of the body as a whole.  Such 
 
            impairment may in turn form the basis for a rating of 
 
            industrial disability. Barton, 110 N.W.2d at 663-64 (Iowa 
 
            1961); Dailey v. Pooley Lumber Co., 10 N.W.2d 569, 573 (Iowa 
 
            1943); See generally, Soukup, 268 N.W. at 601.
 
            
 
                 If a claimant contends that the injury to the scheduled 
 
            member results in an industrial disability, the claimant has 
 
            the burden of proving that the injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 130 N.W.2d 667, 669 (Iowa 1964).  Thus, as 
 
            part of the burden in this case, claimant must show that 
 
            while the injury was limited to his wrist and hand as a 
 
            whole, there resulted an ailment extending beyond the 
 
            scheduled loss to his wrist and hand that caused an 
 
            impairment that is permanent physical functional impairment 
 
            in addition to the impairment found in the scheduled member 
 
            loss.  Kellogg, 130 N.W.2d at 669; Dailey, 10 N.W.2d at 572.
 
            
 
                 When the claimant offers expert medical testimony to 
 
            support the claimant's case, this evidence must be 
 
            considered with all other evidence introduced bearing on the 
 
            causal connection.  Burt, 73 N.W.2d at 738.  The opinion of 
 
            the experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight to be 
 
            given to such an opinion is for the finder of fact, and that 
 
            may be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907
 
            
 
                 In this instance, there are varying versions of how 
 
            claimant's injury occurred.  The version that is accepted 
 
            for the purposes of this decision is the first description 
 
            of the event given to Dr. Lindgren.  This description was 
 
            given closest to the event and is likely to be the most 
 
            accurate since it was not colored by the subsequent workers 
 
            compensation dispute.  Additionally, this description was 
 
            repeated at the time of the hearing by claimant.  It is 
 
            clear from the medical assessments performed by Doctors 
 
            Lindgren, Van DeMark, Dougherty and Linscheid that claimant 
 
            suffered an injury to his wrist and hand that extended into 
 
            the right upper extremity as a result of his attempt to hold 
 
            onto the mold as it slipped off the sprue of the T155.  Even 
 
            though the weight of the mold has fluctuated between 27 and 
 
            70 pounds throughout the telling and retelling of the 
 
            injury, the evidence is uncontroverted that something in 
 
            fact happened on February 7, 1989 that resulted in an injury 
 
            to his wrist, hand and forearm.  Claimant has met his burden 
 
            of proof in this regard.  The impairment rating given by Dr. 
 
            Linscheid on May 14, 1990 was 20 percent to the wrist and 
 
            hand as a whole.  At his deposition, Dr. Linscheid indicated 
 
            that he intended his rating to apply to the right upper 
 
            extremity.  He also indicated that this would result in a 
 
            rating of 18 percent according the AMA Guides.  As a result 
 
            of the injury, claimant will be awarded 18 percent of 250 
 
            weeks at the stipulated rate for an injury to the right arm.
 
            
 
                 With regard to the shoulder injury, the more persuasive 
 
            evidence indicates that there is nothing the shoulder 
 
            specialist could find to relate claimant's current 
 
            complaints regarding his shoulder to the injury that 
 
            occurred on February 7, 1989.  When coupled with the 
 
            nonexpert evidence in this matter, it is clear that claimant 
 
            failed to establish that the injury of February 7, 1989 
 
            caused his shoulder pain.  Initially, claimant did not 
 
            report any pain in his shoulder at the time of his injury.  
 
            Claimant reported to Dr. Linscheid that he had pain up to 
 
            his shoulder.  Next, claimant did not complain about his 
 
            shoulder until June of 1989 but Dr. Dougherty questioned 
 
            whether claimant was having all the trouble that he wanted 
 
            Dr. Dougherty to believe.  Claimant did not complain about 
 
            his shoulder again until some 11 months after the initial 
 
            event.  Claimant's shoulder complaints began right at the 
 
            time claimant and Dr. Linscheid began discussing a return to 
 
            work.  
 
            
 
                 Next, the expert relied on by claimant is suspect in 
 
            connection with his shoulder injury.  As a hand specialist, 
 
            Dr. Linscheid did not assume claimant's care and diagnosis 
 
            in connection with claimant's shoulder problem.  Dr. 
 
            Linscheid referred claimant to a shoulder specialist who 
 
            found no physiological source for claimant's continued 
 
            shoulder problem.  Dr. Kavanaugh, the shoulder specialist, 
 
            could not relate claimant's pain to anything.  Dr. Linscheid 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            himself doubted the extent of claimant's complaints and he 
 
            indicated as much in a letter written in September of 1990.  
 
            There is no evidence in the record of an impairment rating 
 
            for claimant's shoulder.  Moreover, pain that is not 
 
            supported by clinical findings is not a substitute for 
 
            impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
            Industrial Commissioner Report 419, 425 (1981); Fernandez v. 
 
            Good Samaritan Nursing Center, No. 856640, Slip op. at 15 
 
            (Iowa Ind. Comm'r Arb. February 27, 1991).  Consequently, 
 
            claimant failed to sustain his burden of proof in 
 
            demonstrating that the injury to the right upper extremity 
 
            extended to claimant's shoulder and he will not be 
 
            compensated industrially.
 
            
 
                 Since claimant's injury has been found to be permanent 
 
            in nature, claimant is entitled to healing period benefits.  
 
            Healing period benefits may be characterized as that period 
 
            during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached. Armstrong Tire and Rubber 
 
            Co. v. Kubli, 312 N.W.2d 60, (Iowa Ct. App., 1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code Section 85.34(1) (1991), the Kubli Court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined. Kubli, 312 N.W.2d at 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury. Kubli, 312 N.W.2d 
 
            at 65.    When a permanent rating is given, it indicates 
 
            that the physician does not expect the claimant to improve 
 
            and this conclusion meets the criteria of Iowa Code Section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Iowa App. 1984).  The finding of a 
 
            termination of healing period necessarily precludes the 
 
            discussion of a running award.  Hoskins v. Quaker Oats, 2 
 
            State of Iowa Industrial Commissioner Decisions, No. 1, 181, 
 
            185 (Appeal Decision 1985).  The healing period begins when 
 
            claimant is off work due to the work related injury.  In 
 
            this instance Dr. Linscheid gave his rating of 20% on May 
 
            14, 1990.  Claimant's first day off work after the injury 
 
            was February 27, 1989, when claimant saw Dr. Lindgren.  
 
            Claimant's healing period commenced on February 27, 1989 and 
 
            ended on May 14, 1990.  Claimant is entitled to 63 weeks of 
 
            healing period benefits at the stipulated rate.  
 
            
 
                 The parties agreed that defendants would be entitled to 
 
            a credit for amounts paid.  Defendants have paid claimant 
 
            $19,122.76.  Based upon the amounts awarded herein, claimant 
 
            shall take nothing further from this dispute.
 
            
 
                 2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
            
 
                 Claimant has the burden of demonstrating that the 
 
            medical services obtained were causally related to the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            injury in order to have the expenses reimbursed or paid.  
 
            Auxier v. Woodward State Hospital, 266 N.W. 2d 139, 144 
 
            (1978).  Claimant has shown by a preponderance of the 
 
            evidence that he sustained an injury to his right arm while 
 
            working for B.I. Seals.  As a consequence, the necessary 
 
            nexus has been established and B.I. Seals must provide 
 
            medical benefits to claimant for his right arm injury 
 
            pursuant to Iowa Code section 85.27 (1991).
 
 
 
                 Claimant seeks payment for medical services rendered by 
 
            Kenneth D. Van Wyk L.P.T. for the period between August 6, 
 
            1990 and September 26, 1990.  The evidence in the record 
 
            clearly shows that the physical therapy treatment given on 
 
            August 6, 1990 and afterward, was for claimant's shoulders 
 
            and neck and not for his wrist and hand.  Consequently the 
 
            defendants are not liable for these charges.
 
            
 
                 Claimant also seeks payment for treatment at Mayo 
 
            Clinic.  The bill that was submitted has no detail and shows 
 
            only a previous balance of $2,497.70.  Claimant testified 
 
            that these amounts were incurred for the B.I. Seals injury.  
 
            This testimony is uncontroverted.  Defendants urge that this 
 
            medical treatment was not necessary for treatment of 
 
            claimant's work related injury.  Defendants did agree that 
 
            the fees charged were fair and reasonable.  With regard to 
 
            the amounts payable, a recent decision of the Industrial 
 
            Commissioner is instructive.  See, Anderson v. High Rise 
 
            Construction Specialists, Inc., File No. 850096, Slip op. at 
 
            3 (Iowa Ind. Comm'r Appeal July 31, 1990).  In this 
 
            decision, the Industrial Commissioner identified one of the 
 
            issues for appeal was the sufficiency of the proof regarding 
 
            items contained in a hospital statement as being related to 
 
            the injury claimant received.  The Commissioner held that 
 
            where the reasonableness and the necessity of claimant's 
 
            medical bills were put into issue, and claimant offered no 
 
            evidence of reasonableness, the employer was not liable for 
 
            the medical expenses incurred.  In applying these principles 
 
            to this case, claimant offered testimony regarding the 
 
            services that were rendered by Mayo Clinic to him.  The 
 
            services were for his injury and that testimony is 
 
            uncontroverted.  Consequently, B.I. Seals must pay this 
 
            medical bill.
 
            
 
                                      Order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  B.I. Seals and Aetna shall pay to claimant healing 
 
            period benefits for the period of time beginning on February 
 
            27, 1989 and ending on May 14, 1990 at the rate of one 
 
            hundred seventy-three and 34/100 dollars ($173.34).  If any 
 
            of these amounts have accrued, they shall be paid in a lump 
 
            sum together with statutory interest thereon pursuant to 
 
            Iowa Code section 85.30 (1991).
 
            
 
                 2.  B.I. Seals and Aetna shall pay to claimant 
 
            permanent partial disability benefits in the amount of 
 
            eighteen (18) per cent of two hundred fifty (250) weeks at 
 
            the rate of one hundred seventy-three and 34/100 dollars 
 
            ($173.34) with payment commencing on July 10, 1990.  If any 
 
            of these amounts have accrued, they shall be paid in a lump 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            sum together with statutory interest thereon pursuant to 
 
            Iowa Code section 85.30 (1991).
 
            
 
                 3.  B. I. Seals and Aetna shall pay Mayo Clinic two 
 
            thousand four hundred ninety-seven dollars ($2,497.00) for 
 
            medical services rendered to claimant for the injury he 
 
            suffered at B. I. Seals.
 
            
 
                 4.  B.I. Seals and Aetna shall have a credit in the 
 
            amount of nineteen thousand one hundred twenty two and 
 
            26/100 dollars ($19, 122.26) (110.31937 weeks) against any 
 
            amounts owed.  
 
            
 
                 5.  The costs of this action shall be assessed to B.I. 
 
            Seals and Aetna pursuant to rule 343 IAC 4.33.
 
            
 
                 6.  B.I. Seals and Aetna shall file claim activity 
 
            reports as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr E W Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St
 
            PO Box 455
 
            Spirit Lake Iowa 51360
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803.1; 5-2500
 
                      Filed May 9, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MICHAEL L. BURNS, III,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 911473
 
            B. I. SEALS UNLIMITED    :
 
            CORPORATION,   :
 
                      :    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.    :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Claimant was successful in showing that he suffered an 
 
            injury to his wrist and hand.  The evidence was insufficient 
 
            to show that the injury to his wrist and hand extended into 
 
            his shoulders and down his left arm.  Claimant was awarded 
 
            45 weeks of benefits for an injury to the right arm.
 
            
 
            5-2500
 
            Since defendants did not object to claimant's medical 
 
            charges on the grounds of fairness and reasonableness, and 
 
            since claimant testified the charges were related to the 
 
            injury he received, defendants were found liable for the 
 
            medical benefits.