Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY McCRAY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 912032
 
            J.M. FOSTER, INC.,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            McCray, claimant, against J.M. Foster, Inc., employer, 
 
            hereinafter referred to as Foster, and CNA Insurance 
 
            Company, insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            March 14, 1989.  On September 15, 1992, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.   An amendment of 
 
            the alleged injury date from the 13th to the 14th was 
 
            approved at hearing without objection.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.      
 
                 According to the prehearing report, the parties have 
 
            stipulated  to the following matters:
 
            
 
                 1. An employee-employer relationship existed between 
 
            claimant and Foster at the time of the alleged injury.
 
            
 
                 2.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $654;  he was single;  and he was 
 
            entitled to two exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $369.98 according to the industrial 
 
            commissioner's published rate booklet for this injury. 
 
            
 
                 3. It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their 
 
            reasonableness and defendants are not offering contrary 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence.  It was also agreed that the medical bills 
 
            submitted by claimant at the hearing are causally connected 
 
            to the medical condition upon which the claim herein is 
 
            based but that the issue of their causal connection to any 
 
            work injury remains an issue to be decided herein.
 
            
 
                 It should be noted that claimant was not present at the 
 
            hearing on September 15, 1992.  Claimant's counsel moved to 
 
            continue the hearing as claimant was not aware of its 
 
            scheduling.  According to counsel, claimant moved out of 
 
            state and neither he or claimant's parents knew claimant's 
 
            current whereabouts nor when they would know his 
 
            whereabouts.   The motion to continue was denied and the 
 
            hearing proceeded as scheduled.
 
            
 
                                          ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
                 
 
                 I. Whether claimant received an injury arising out of 
 
            and in the course of  employment; 
 
                 
 
                 II. The extent of claimant's entitlement to disability 
 
            benefits.
 
                 
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
                                        FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 According to witnesses offered by defendants, claimant 
 
            was employed in November 1988 by Foster, an independent 
 
            contracting firm, as a millwright journeyman from the union 
 
            hall.   The work was to be performed inside the Alcoa 
 
            Aluminum plant.   Claimant was working in this capacity at 
 
            the time of his alleged work injury herein.
 
                 
 
            
 
                 On or about March 14, 1989, claimant injured his low 
 
            back while employed by Foster.  Claimant slipped from a pipe 
 
            on which he was standing, twisted  and fell onto his back. 
 
            This finding is made from claimant's consistent reports of 
 
            injury to fellow employees, his supervisor and emergency 
 
            room physicians at St Luke's Hospital in Davenport, Iowa 
 
            where Foster management sent him for treatment after the 
 
            injury.   The diagnosis of the injury was "contusion and 
 
            ligamentous strain, rule out disc."    X-rays of claimant's 
 
            back at the time were interpreted as normal.  
 
            
 
                 Claimant returned to work at Foster the same day he 
 
            went to the hospital and continued working until June.  At 
 
            that time, there was a 30-day shut down and a general 
 
            layoff.  He returned to work in August 1989 along with other 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            employees and worked in his regular job continuously until a 
 
            week or two before the project was to be completed at the 
 
            Alcoa plant in November 1989.  Claimant's supervisor stated 
 
            that claimant took off early to go deer hunting "out West"   
 
            The project was completed in November 1989 and all employees 
 
            laid off at that time.  Not much is known about claimant's 
 
            work activities after that time with the exception of 
 
            claimant's father who testified he thought claimant worked 
 
            in Chicago after leaving Foster.    Claimant's attorney 
 
            reported in his motion for continuance that claimant was 
 
            absent from this state due to employment.
 
                 
 
                 On April 20, 1989,  claimant sought treatment for low 
 
            back pain from James Hoffman, M.D., an orthopedic surgeon.  
 
            Dr Hoffman 's assistant took a history of intermittent back 
 
            pain for the last ten years with treatment from three 
 
            physicians and a chiropractor.  It was reported that he had 
 
            some recent pain but was able to continue working without 
 
            "too much difficulty, except for chronic pain."  He reported 
 
            pain upon coughing and sneezing.  The record shows no report 
 
            of leg pain at this time.  An injury in March 1989 was not 
 
            reported according to the records.   Dr Hoffman reviewed a 
 
            prior CT scan in November 1988 which revealed a slight 
 
            herniation at L4/5 level of claimant's spine.  According to 
 
            Dr Hoffman, his tests such as straight leg raising were 
 
            normal and not indicative of a disc problem. The doctor 
 
            opined that claimant was suffering only mechanical pain, not 
 
            pain from a herniated disc, and he did not recommend 
 
            surgery.  He next saw claimant in May 1989  and claimant was 
 
            somewhat improved and he felt that the medication was 
 
            helping to control the pain.  
 
            
 
                 According to the records of Eugene Herzberger, M.D., a 
 
            neurosurgeon, claimant sought medical assistance for low 
 
            back and right leg pain before the work injury herein in 
 
            November 1988.   At that time, Dr Herzberger found an 
 
            abnormal straight leg raising test and ordered the CT scan 
 
            referred to above.  It was Dr Herzberger's interpretation of 
 
            the scan that there were three bulging discs in claimant's 
 
            lower spine and a small herniation at L4/5.  However, the 
 
            doctor did not recommend surgery at that time, only 
 
            continued conservative care with medication.  
 
            
 
                 Dr Herzberger next saw claimant approximately one year 
 
            after the injury herein in March 1990.   According to the 
 
            records, claimant reported that he had been worse for 
 
            approximately "one year's time."   He added that he now 
 
            reported pain aggravated by coughing and sneezing.  This was 
 
            a history different than before.  He also stated to Dr. 
 
            Herzberger, according to the records, that he actually had 
 
            pain since 1988 and has seen several other physicians and 
 
            received a great deal of conservative therapy without 
 
            relief.  Dr Herzberger ordered an MRI of the spine.   This 
 
            imaging revealed a large herniated disc at the L4/5 level 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            and another possible herniation at the L5/Sl level of the 
 
            lower spine.  He recommended surgery but surgery was delayed 
 
            a few weeks until claimant completed his current work as a 
 
            supervisor over a crew.  Surgery was performed in June 1990 
 
            and the herniations at two levels were confirmed.    
 
            Claimant was off work a few weeks for this surgery and 
 
            recovery.  Dr Herzberger states that claimant now has a 5 
 
            percent  permanent partial impairment of the body as a whole 
 
            from his low back condition.
 
            
 
                 The fighting issue in this case is the causal 
 
            connection between the injury of March 14, 1989 and the 
 
            herniated disc and surgery over a year later. Although 
 
            claimant reported a worsening over the period of one year 
 
            before March 1990, Dr Herzberger did not learn of the work 
 
            injury until the date of his deposition in January 1992.  
 
            However, he opined that there would be a causal connection 
 
            in his opinion if, in fact, there were no complaints before 
 
            the injury and continuous complaints after the injury until 
 
            his office visit in March 1990.    Unfortunately, this could 
 
            not be found from the evidence submitted.  The testimony 
 
            from claimant's parents was helpful for claimant but much 
 
            too sketchy upon which to base a causal connection finding.
 
            
 
                 Claimant's fellow workers and supervisor testified that 
 
            claimant had back pain and complained about it after the 
 
            injury but the supervisor said that claimant complained more 
 
            of headaches and nasal problems.  Claimant's mother 
 
            testified that he clearly had back problems after the 
 
            injury.  However, she also said he had no back problems 
 
            before and was unaware of the treatment by Dr Herzberger in 
 
            1988.   Claimant's father clearly recalled the events 
 
            immediately following the work injury but stated that he 
 
            didn't pay much attention to complaints after the fall.  He 
 
            stated that his son was not a complainer.
 
            
 
                 Therefore, Dr Herzberger's causal connection opinion 
 
            cannot be given much weight as the assumptions upon which it 
 
            is founded were not established in the evidence.  The record 
 
            does not indicate what activity claimant has been involved 
 
            in since November 1989 when he left Foster's employment to 
 
            go on a hunting trip.
 
            
 
                 Claimant seeks reimbursement for medical expenses set 
 
            forth in exhibits C-I. Exhibits C-F and H relate to 
 
            treatment of claimant's condition in 1990 which was not 
 
            found work related.  Therefore, they are  not reimbursable.  
 
            Exhibit G contained no date or description of treatment 
 
            offered.  Only Exhibit I related to the injury as the charge 
 
            for the x-rays taken on the day after the injury.
 
            
 
                                 CONCLUSIONS OF LAW
 
            
 
                 I.  Claimant has the burden of proving by a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that claimant received an 
 
            injury arising out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See generally, Cedar Rapids 
 
            Comm. Sch.  Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979);  
 
            Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 
 
            63 (1955).  An employer takes an employee subject to any 
 
            active or dormant health impairments. A work-connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1961), 
 
            and cases cited therein.
 
            
 
                 In the case sub judice, claimant clearly established 
 
            the occurrence of an injurious event on March 14, 1989.   
 
            The real issue is whether or not this injury was the cause 
 
            of his surgery and condition over a year later.
 
                 
 
                 II. The claimant has the burden of proving by a 
 
            preponderance of the evidence that the work injury is a 
 
            cause of  the claimed disability.  A disability may be 
 
            either temporary or permanent.  In the case of a claim for 
 
            temporary disability, the claimant must establish that the 
 
            work injury was a cause of absence from work and lost 
 
            earnings during a period of recovery from the injury.   
 
            Generally, a claim of permanent disability invokes an 
 
            initial determination  of whether the work injury was a 
 
            cause of permanent physical impairment or permanent 
 
            limitation in work activity.                      
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).   
 
            The opinion of experts need not be couched in definite, 
 
            positive or unequivocal language and the expert opinion may 
 
            be accepted or rejected, in whole or in part, by the trier 
 
            of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974). The weight to be given to such an opinion is for the 
 
            finder of fact to determine from the completeness of the 
 
            premise given the expert or other surrounding circumstances.  
 
            Bodish v. Fischer, Inc.,  257 Iowa 516, 133 N.W.2d 867 
 
            (1965).    
 
            
 
                 In the case sub judice, the evidence clearly 
 
            demonstrates that claimant suffers permanent impairment to 
 
            the body as a whole but it could not be found by the greater 
 
            weight of evidence that the injury was the cause of this 
 
            impairment.  There was a gap in the evidence from November 
 
            1989 until March 1990.  The evidence immediately prior to 
 
            and subsequent was too sketchy.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of  reasonable medical expenses incurred 
 
            for treatment of a work injury.  In this case, only one bill 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            submitted, incurred immediately after the injury,  was found 
 
            compensable.
 
            
 
                                                                                            
 
            ORDER
 
            
 
            
 
                 1.  Defendants shall pay to claimant or to the provider 
 
            directly, if not paid by claimant,  the medical charges from 
 
            Dubuque Radiological in the amount of one hundred dollars 
 
            ($160.00) along with any late charges or penalties.
 
            
 
                 2.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 3.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
                 
 
                 Signed and filed this _____ day of October, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James D Bruhn
 
            Attorney at Law
 
            343 Fifth Ave S
 
            Clinton IA 52732-4510
 
            
 
            Mr Elliott R McDonald III
 
            Attorney at Law
 
            3432 Jersey Ridge Rd
 
            P O Box 2746
 
            Davenport IA 52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed October 19, 1992
 
                      Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY McCRAY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 912032
 
            J.M. FOSTER, INC.,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JAMES SPANGLER,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 912157
 
         MARTIN BROTHERS OF CRESTON,   :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL INSURANCE    :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ____________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 31, 1991 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Claimant's attorney urges that the deputy industrial commissioner 
 
         that heard this case held a personal bias against him as shown by 
 
         a comment in a pre-hearing conference in an unrelated case over 
 
         two years earlier.  In the pre-hearing conference in question, it 
 
         is alleged that deputy industrial commissioner Helenjean Walleser 
 
         referred to claimant's attorney's method of practicing law as 
 
         "idiotic."  A complaint was made to the Iowa Industrial 
 
         Commissioner at the time, requesting that deputy Walleser not be 
 
         assigned to any cases claimant's attorney was involved in.  The 
 
         request was denied.
 
         In the two years since the complaint was made, claimant's 
 
         attorney has appeared before deputy Walleser for pre-hearing 
 
         conferences on many occasions without further complaint.  Nothing 
 
         in the conduct of the hearing in this case indicates the presence 
 
         of any personal bias on the part of deputy Walleser toward Mr. 
 
         Miller.  The argument is without merit. 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of September, 1992.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Philip F. Miller
 
         Attorney at Law
 
         309 Court Ave., Ste 200
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Jeffrey M. Margolin
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           9999
 
                                           Filed September 30, 1902
 
                                           Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAMES SPANGLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 912157
 
            MARTIN BROTHERS OF CRESTON,   :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed July 31, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES SPANGLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 912157
 
            MARTIN BROTHERS OF CRESTON,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, James Spangler, against his employer, Martin 
 
            Brothers of Creston, and its insurance carrier, Employers 
 
            Mutual Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of an injury 
 
            sustained on February 3, 1989.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner at Des Moines, Iowa on May 15, 1991.  The 
 
            record consists of joint exhibits A through Y and AA through 
 
            GG, defendants' exhibit Z, and claimant's exhibits 1, 3 and 
 
            6.  The record also consists of the testimony of claimant, 
 
            of Robert Dean Spangler, of Richard L. Rattray, and of Jeff 
 
            L. Johnson.
 
            
 
                 As a preliminary matter, claimant filed a motion 
 
            seeking that the undersigned recuse herself from this 
 
            proceeding, with claimant asserting that claimant's counsel 
 
            had filed a complaint against the undersigned with the prior 
 
            commissioner and that claimant could not receive a fair and 
 
            impartial hearing under such circumstances.  The undersigned 
 
            has no independent recollection of any formal complaint 
 
            having been filed against her by claimant's counsel.  She 
 
            does have some minor recollection of a misperception on the 
 
            part of claimant's counsel, which misperception was 
 
            confirmed at time of hearing that she had referred to 
 
            claimant's counsel as an "idiot" at time of prehearing.  The 
 
            undersigned does not normally refer to counsel as "idiots" 
 
            at prehearing and has no independent recollection of ever 
 
            having referred to claimant's counsel as an "idiot" at 
 
            prehearing.  While she finds claimant's counsel's 
 
            misperception of such unfortunate, she does not believe that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant's counsel's misperception represents due cause for 
 
            recusal.  Also, while she is aware that claimant's counsel 
 
            brought the matter of his misperception to the attention of 
 
            the prior commissioner, no action was initiated relative to 
 
            that misperception.  Therefore, the undersigned has no 
 
            personal bias relative to claimant's counsel from such 
 
            incident that would prevent claimant from receiving a fair 
 
            and impartial hearing.  Recusal is not warranted and at time 
 
            of hearing the undersigned declined to recuse herself.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing order, the prehearing report 
 
            and the oral stipulations of the parties at hearing, the 
 
            parties have stipulated that claimant did receive an injury 
 
            arising out of and in the course of his employment; that a 
 
            causal relationship existed between claimant's injury and an 
 
            entitlement to both healing period and permanent partial 
 
            disability; that claimant was entitled to and has received 
 
            healing period benefits from February 12, 1989 through 
 
            January 30, 1990 and has no further healing period benefit 
 
            entitlement, and that claimant's commencement date for any 
 
            permanent partial disability benefits is February 1, 1990.  
 
            The parties further stipulated that claimant's gross weekly 
 
            wage was $250.00 per week and that claimant was single and 
 
            entitled to one exemption at the time of injury.
 
            
 
                 Issues remaining to be decided are claimant's rate of 
 
            weekly compensation and claimant's permanent partial 
 
            disability entitlement, if any.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant was born on November 6, 1954.  He is a high 
 
            school graduate who maintained a "C" average.  He spent a 
 
            year in community college taking primarily mechanics courses 
 
            in which he did quite well.  Claimant has had work 
 
            experience as a service station attendant and as a farm hand 
 
            as well as a mechanic.  Claimant began work for Martin 
 
            Brothers in 1976, then receiving a gross wage of $150.00 per 
 
            week and receiving full payment of his medical insurance.  
 
            When injured, claimant received a gross wage of $250.00 per 
 
            week for a 44-hour week and the employer paid one-half of 
 
            the total health insurance premium with an additional $17.78 
 
            per week deducted from claimant's gross wage.  The employer 
 
            also paid half of claimant's uniform rental with claimant 
 
            paying $3.63 of such per week.
 
            
 
                 Claimant had seen physicians on several occasions prior 
 
            to February 3, 1989 on account of back incidents at Martin 
 
            Brothers.  He had always returned to work subsequent to 
 
            those incidents, however.  On February 3, 1989, claimant was 
 
            attempting to put a transmission into an automobile when the 
 
            jack gave way causing claimant to manually support the 
 
            transmission.  Claimant sought chiropractic care that day, 
 
            returned to work the next day, but left work permanently 
 
            five and one-half days later.  Claimant then was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            hospitalized with traction for approximately one week and 
 
            underwent a three-week period of bed rest thereafter.  
 
            Claimant subsequently underwent a myelogram, a CT scan, and 
 
            an MRI with a recommendation of conservative care.  Claimant 
 
            next saw William R. Boulden, M.D., an orthopaedic surgeon, 
 
            who performed surgery at the L5 nerve root level.  Claimant 
 
            saw Karen Kienker, M.D., for an independent medical 
 
            evaluation.  Claimant was referred to the University of Iowa 
 
            Hospitals and Clinics for an evaluation in its back 
 
            rehabilitation program.  Claimant has also seen Daniel J. 
 
            McGuire, M.D., for medical examination.
 
            
 
                 Claimant has gone through vocational rehabilitation 
 
            evaluations through both the State of Iowa Rehabilitation 
 
            Program and through Resource Opportunities, Inc.  Claimant 
 
            perceives himself as severely disabled on account of his 
 
            injury and has refused to engage in a variety of recommended 
 
            vocational and recreational activities.  Claimant's counsel 
 
            has recommended that claimant not engage in activities.  
 
            Claimant desires to remain in the Creston area.  Claimant 
 
            reported having applied for a variety of jobs in that area 
 
            and stated that he had been turned down for each.  Claimant 
 
            reported that each potential employer had asked about his 
 
            surgery and that he had been required to report such 
 
            surgery.  It is uncertain which, if any, of these jobs were 
 
            within claimant's physical restrictions.  Claimant expressed 
 
            dissatisfaction with Jane Brown, his physical therapist in 
 
            Creston, Ted Wernimont, University of Iowa program director, 
 
            and Dr. Boulden.
 
            
 
                 Subsequent to his University of Iowa evaluation, 
 
            claimant hauled grain into town in his brother-in-law's 
 
            pickup, a distance of seven miles.  Claimant had earlier 
 
            reported at times having difficulty working the clutch in 
 
            his own pickup truck and at times having been able to do so.  
 
            Claimant owns three pistols and six rifles.  He reloads gun 
 
            shells as a hobby.  Shells are reloaded for his, his 
 
            father's and his brother-in-law's guns.  Claimant reported 
 
            having done some trap shooting subsequent to his injury and 
 
            stated he had pain while doing so.
 
            
 
                 Claimant was enrolled in State of Iowa Vocational 
 
            Rehabilitation from February 13, 1991 to March 3, 1991.  
 
            Richard L. Rattray, vocational rehabilitation counselor with 
 
            the state, reported that claimant's evaluators there 
 
            classified claimant as not competitively employable.  
 
            Claimant had self-reported restrictions of 10 pounds on 
 
            lifting and 10 minutes standing and sitting.  Rattray 
 
            reported claimant had "a lot of psychiatric stuff" and was 
 
            not handling his pain at all.  Rattray opined that a person 
 
            with restrictions of no repetitive bending, lifting or 
 
            twisting; a maximum of 37 pounds occasional lifting, 20 
 
            pounds repetitive lifting, and 30-45 minutes sitting with a 
 
            need to shift among standing, sitting and walking; an 
 
            inability to return to heavy mechanical work or heavy 
 
            mechanical labor; and, having no transferrable skills, would 
 
            not be hired for physical labor.  Rattray agreed that the 
 
            state program requires 100 percent effort from a participant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to avoid tainted results.  He felt, however, that claimant 
 
            had given 100 percent effort.  The record as a whole does 
 
            not support Mr. Rattray's opinion that claimant gave full 
 
            effort while being evaluated at the state facility, however.
 
            
 
                 Jeff L. Johnson, a vocational rehabilitation consultant 
 
            with Resource Opportunities, Inc., worked with claimant as 
 
            apparently did Lori Hackett of that organization.  Johnson 
 
            developed a written vocational rehabilitation plan for 
 
            claimant which claimant signed.  Under the plan, jobs to be 
 
            considered were parts clerk, small assembly, security guard, 
 
            sales clerk, hotel clerk, and light mechanical operator, 
 
            with a job search to be conducted within the Creston, 
 
            Corning and Osceola areas.  Job search was deferred as 
 
            claimant was to undergo state vocational rehabilitation 
 
            evaluation on an on-call basis.  Claimant had agreed to 
 
            vocational rehabilitation counseling, but had remained 
 
            concerned regarding his perception of a need for more 
 
            medical treatment and his fear of being able to physically 
 
            tolerate a job.  Claimant's scores on the general aptitude 
 
            test battery administered were all within the average range 
 
            when the standard deviation was considered.  Johnson opined 
 
            that claimant was employable in light exertional level and 
 
            sedentary work with a salary range in the targeted 
 
            geographic area being from $4.25 to $5.25 per hour.  Johnson 
 
            opined that, in a worse case scenario, claimant would 
 
            receive minimum wage and that such would represent either a 
 
            32 percent or a 22.7 percent wage loss, depending upon 
 
            whether one considers the $250 per week salary a straight 
 
            hourly wage of $6.25 per hour or a wage of $5.50 per hour 
 
            for a 40-hour week with four hours paid at time and 
 
            one-half.  Johnson opined that, under a best case scenario, 
 
            claimant's post-injury earnings would equal $5.25 per hour.  
 
            Under that scenario, claimant would sustain a 16 percent 
 
            wage loss where pre-injury earnings were considered $6.25 
 
            per hour and a 4.54 percent loss where pre-injury earnings 
 
            were considered $5.40 per hour.  Johnson characterized 
 
            claimant's younger age, retained physical abilities and 
 
            aptitudes as strengths.  He reported that claimant was 
 
            retrainable, although he may need pre-training to bring his 
 
            reading scores to the college work level.  Johnson opined 
 
            that statements in practitioners' reports that claimant had 
 
            been told to be inactive for fear of reprisal or that he was 
 
            instructed to live like a hermit would have a negative 
 
            impact upon claimant's motivation.  Johnson reported that he 
 
            did not believe that negative impact was "something brought 
 
            on by claimant by any means."
 
            
 
                 Dr. Boulden, a board-certified orthopaedic surgeon, has 
 
            characterized claimant as having no remaining L5 nerve root 
 
            entrapment subsequent to his surgery.  Dr. Boulden 
 
            restricted claimant from repetitive bending, lifting or 
 
            twisting with the back and from repetitive lifting of 
 
            greater than 20-22 pounds.  Maximum lifting should not be in 
 
            excess of 37 pounds.  Dr. Boulden restricted claimant from 
 
            prolonged sitting or standing, a maximum of 30-45 minutes, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and from returning to heavy mechanical work.  The doctor 
 
            characterized, and the record reflects, that claimant is 
 
            pain fixated.  Dr. Boulden assigned claimant a ten percent 
 
            permanent partial impairment rating under the AMA guides, 
 
            noting that claimant had no loss of motion, a normal EMG, 
 
            and no x-ray evidence of nerve entrapment.  Dr. Boulden 
 
            reported that Dr. Kienker's permanent partial impairment 
 
            rating was not understandable unless claimant had suffered 
 
            loss of range of motion [subsequent to the Boulden 
 
            evaluation].  Dr. Boulden found that claimant's pain 
 
            symptoms following surgery were unlike his pre-surgery pain 
 
            symptoms in that the post-surgery symptoms did not follow 
 
            the L5 dermatone pattern.  Dr. Boulden denied ever having 
 
            told claimant that claimant would need further surgery and 
 
            stated that it was probably very unlikely he would recommend 
 
            further surgery for claimant.  The doctor denied having ever 
 
            told claimant that claimant could suffer paralysis if 
 
            claimant bent the wrong way.
 
            
 
                 Karen Kienker, M.D., a board-certified physical 
 
            rehabilitation physician, opined that claimant's left lower 
 
            extremity symptoms were consistent with a complete loss of 
 
            function of L5 nerve root.  She stated that Dr. Boulden's 
 
            permanent partial impairment rating resulted from one option 
 
            permitted under the AMA guides and that her rating resulted 
 
            from a second option available.  She stated that she had 
 
            used the tables in the guides "as best [she] could," but 
 
            with some difficulty.
 
            
 
                 Dr. Kienker had assigned claimant a 29 percent 
 
            permanent partial impairment rating using the following 
 
            methods:  16 percent of the lumbar spine for loss of range 
 
            of motion; 5 percent of the lower extremity for loss of 
 
            sensory function; 37 percent of the lower extremity for loss 
 
            of motor function; equalling 40 percent permanent partial 
 
            impairment of the lower extremity or 16 percent of the body 
 
            as a whole.  She then combined the 16 percent of the body as 
 
            a whole assigned for loss of range of motion of the lumbar 
 
            spine and the 16 percent of the body as a whole assigned for 
 
            ratings to the lower extremity to achieve a permanent 
 
            partial impairment rating of 29 percent of the body as a 
 
            whole.  Dr. Kienker had recommended tricyclic 
 
            anti-depressant medication for claimant for sleep and that 
 
            claimant utilize a TENS unit.
 
            
 
                 Daniel J. McGuire, M.D., assigned claimant a ten 
 
            percent permanent partial impairment rating subsequent to 
 
            evaluation.  Dr. McGuire disagreed with claimant's 
 
            light-duty work restrictions reporting that claimant 
 
            probably could do more with light conditioning.  The doctor 
 
            reported that it was very obvious claimant had not worked 
 
            hard at physical rehabilitation and physical therapy 
 
            subsequent to his surgery, given claimant's five percent 
 
            range of motion.
 
            
 
                 Thomas W. Bower, licensed physical therapist, assisted 
 
            Dr. Boulden in assessing claimant's permanent partial 
 
            impairment.  Bower opined that loss of range of motion is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            only included in a permanent partial impairment rating where 
 
            there is definite ankylosis of the spine since range of 
 
            motion is otherwise variable and consequently is not a good 
 
            predictor of permanent partial impairment.  He also stated 
 
            that as regards sensory and motor loss, table 49 of the 
 
            guides takes residuals into account and that, therefore, 
 
            unless an individual has proven nerve root entrapment, there 
 
            is no need to assess such separately.
 
            
 
                 Given claimant's freedom from signs of nerve root 
 
            entrapment, the statements of Mr. Bower and the supporting 
 
            rating of Dr. McGuire, the impairment rating which Dr. 
 
            Boulden, the treating physician, assigned is accepted over 
 
            the rating of Dr. Kienker.  The Boulden rating is supported 
 
            by the record as a whole and is more consistent with 
 
            standard assessment techniques under the AMA guides.
 
            
 
                 Mr. Bower characterized claimant's reported resting 
 
            pain level of 8 as a highly unusual perceived pain level.
 
            
 
                 University of Iowa rehabilitation evaluation notes of 
 
            July 26, 1990 state that claimant reports a pain level of 10 
 
            on a scale of 10.  Claimant focused on the fact that [he 
 
            believed] he would be paralyzed if he did anything.  
 
            Claimant's lack of flexibility was found to be probably as 
 
            responsible for his pain as anything else.  It was also 
 
            noted that claimant would benefit significantly from 
 
            increased activity level and a functioning program which 
 
            would improve his functional strength and endurance.
 
            
 
                 Ted Wernimont, M.S.W., rehabilitation director of the 
 
            University of Iowa program, reported that claimant has lost 
 
            a great deal of function because of his inactivity and that 
 
            claimant will continue to lose function if claimant remains 
 
            inactive.  He characterized claimant as feeling out of 
 
            control of his life and as being extremely negative, fearful 
 
            and suspicious.
 
            
 
                 Eugene F. Gauron, Ph.D., a clinical psychologist with 
 
            the program, characterized claimant as very angry and very 
 
            cynical.  Ernest M. Found, Jr., M.D., also with the program, 
 
            opined that claimant was 100 percent rehabilitable to 
 
            full-time employment and would benefit from a rehabilitation 
 
            program, but only after the legal issues involved in his 
 
            situation were settled.
 
            
 
                 Jane Brown, licensed physical therapist, was the 
 
            individual responsible for claimant's physical therapy in 
 
            the Creston area.  She believed claimant's symptoms and 
 
            continuance of symptoms were disproportionate to the 
 
            problems of being treated.  She agreed that claimant walked 
 
            with a limp, but observed that claimant had less limp in his 
 
            gait and straighter posture when in the parking lot with no 
 
            other persons with or about him.
 
            
 
                 The record demonstrates that claimant's counsel bears 
 
            primary responsibility for instructing claimant to seriously 
 
            limit his activities.  Given such, claimant's limitation of 
 
            activities is not considered a direct sequela of his injury 
 
            for which defendants bear liability.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 We first consider the rate question.
 
            
 
                 Claimant argues that claimant's rate of compensation 
 
            should be based on a calculation including both claimant's 
 
            gross wage of $250.00 per week and the employer's 
 
            contribution to claimant's health insurance of $17.78 per 
 
            week and the employer's payment of claimant's uniform 
 
            expenses of $3.63 per week.
 
            
 
                 Claimant's argument is ill founded.  Gross earnings do 
 
            not include reimbursement of expenses, expense allowances 
 
            and the employer's contribution for welfare benefits.  See 
 
            Stevens v. John Morrell & Co., Vol. 1, No. 1, State of Iowa 
 
            Industrial Commissioner Decisions 236 (1984).  The 
 
            employer's contribution to the health insurance is certainly 
 
            a contribution for welfare benefits.  Likewise, the uniform 
 
            allowance must be considered an expense allowance.  Given 
 
            such, claimant's rate is properly calculated under section 
 
            85.36(1).  Under the rate benefit table in effect on 
 
            February 3, 1989, claimant's rate of weekly compensation is 
 
            $155.49.
 
            
 
                 We consider the extent of claimant's permanent partial 
 
            disability entitlement.
 
            
 
                 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, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 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.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            v. Big Ben Coal Co., 388 N.W.2d 181 (Iowa 1980).
 
            
 
                 Claimant has a moderate physical impairment, but an 
 
            impairment which does restrict him from returning to heavy 
 
            mechanical work.  Likewise, claimant's treating physician 
 
            has restricted claimant from lifting more than 20-22 pounds 
 
            repetitively, from bending, stooping and twisting from the 
 
            back, and from prolonged walking or standing.
 
            
 
                 Claimant has some academic handicaps.  Mr. Johnson has 
 
            expressed his opinion that such could be corrected to a 
 
            degree which would enable claimant to seek academic 
 
            retraining.  Vocational consultant Johnson opined that 
 
            light-weight to sedentary jobs which claimant could perform 
 
            could be found in claimant's home area.  Unfortunately, a 
 
            rehabilitation-assisted job search has not taken place.  It 
 
            now appears unlikely that such will take place given 
 
            claimant's subjective assessment of his inability to engage 
 
            in meaningful employment.  Such subjective assessment is 
 
            unfortunate.  As noted in the above findings of fact under 
 
            the circumstances presented, claimant's subjective belief 
 
            cannot properly be considered a direct sequela of claimant's 
 
            injury for which defendants are liable.  Its presence makes 
 
            assessment of claimant's actual loss of earning capacity on 
 
            account of the injury difficult, however.  Claimant's 
 
            perception of himself as totally disabled, the actual 
 
            functional limitations which his refusal to engage in 
 
            prescribed self-help activities has produced, and his 
 
            consistent refusal to test his hypothesis that he is unable 
 
            to be gainfully employed all reflect adversely on claimant's 
 
            motivation to seek gainful employment within the legitimate 
 
            restrictions which his work injury has produced.  Claimant 
 
            has not shown that job opportunities such as Mr. Johnson 
 
            suggested are not available to him in his geographic area.  
 
            Were such available and should claimant avail himself of 
 
            such opportunities, claimant's overall earnings were 
 
            estimated to be from slightly under five percent to 
 
            approximately one-third less than claimant's earnings when 
 
            injured.  (Claimant's earnings when injured were lower than 
 
            those that might have been available for an automobile 
 
            mechanic in a more metropolitan area.  The earnings 
 
            reflected claimant's actual earning capacity at that time, 
 
            however, in that claimant has testified to his desire to 
 
            remain in his own geographic area.)
 
            
 
                 Given claimant's failure to actively seek employment 
 
            within his restrictions and given the nature of claimant's 
 
            restrictions themselves, neither an overly pessimistic nor 
 
            an overly optimistic assessment of claimant's loss of 
 
            earnings capacity can be made.  An industrial disability 
 
            award of 25 percent is appropriate under the circumstances 
 
            presented.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant one hundred twenty-five (125) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred fifty-five and 49/100 dollars ($155.49) per 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            week with such benefits to commence on February 1, 1990.
 
            
 
                 Defendants receive credit for benefits previously paid.
 
            
 
                 Defendants pay all accrued amounts in a lump sum.
 
            
 
                 Defendants pay interest pursuant to Iowa Code section 
 
            85.30, as amended.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Avenue, Suite 200
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Jeffrey M. Margolin
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 3001
 
                           Filed July 31, 1991
 
                           HELENJEAN WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES SPANGLER,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 912157
 
            MARTIN BROTHERS OF CRESTON,   :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL INSURANCE    :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803
 
            Thirty-six-year-old male claimant who could not return to 
 
            former work as automotive mechanic and who refused to engage 
 
            in recommended self-help activities and who subjectively 
 
            perceived self as totally disabled awarded 25 percent 
 
            permanent partial disability benefits.  Claimant's counsel's 
 
            instructions to claimant not to engage in any activity found 
 
            to be an intervening factor impacting on loss of earning 
 
            capacity and not a direct sequela of the work injury for 
 
            which defendants are liable.
 
            
 
            3001
 
            Employer's contribution to claimant's health insurance found 
 
            to be a welfare benefit not included in gross weekly wages.  
 
            Employer's contribution to uniform rental expense found to 
 
            be an expense allowance not included in gross weekly wage.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES ALEXANDER,              :
 
                                          :    
 
                 Claimant,                :          
 
                                          :
 
            vs.                           :  File Nos.  958189 & 912324
 
                                          :     
 
            UNITED PARCEL SERVICES,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            AND                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by James Alexander against his former employer.  
 
            File number 912324 deals with a right shoulder injury which 
 
            occurred on February 21, 1989.  File number 958189 deals 
 
            with a left hand injury which occurred on July 24, 1990.  It 
 
            was stipulated that the claimant sustained injury which 
 
            arose out of and in the course of employment in both files 
 
            and that all healing period benefits have been fully paid.  
 
            There is a dispute with the extent of permanent partial 
 
            disability for which the employer is liable as a result of 
 
            each of the two injuries.  The case also involves a claim 
 
            against the Second Injury Fund of Iowa.  The Second Injury 
 
            Fund asserts that the shoulder injury does not form a basis 
 
            for a prior loss which would support an award against the 
 
            Fund.  The Fund also asserts that the left hand injury is 
 
            limited to the fingers and does not involve the hand and as 
 
            such does not constitute a basis for Fund liability.  It was 
 
            stipulated that the rate of compensation associated with the 
 
            July 24, 1990 injury is $429.45 per week.  
 
            
 
                 The following cases were consolidated for hearing with 
 
            file number 1022305 and were heard at Des Moines, Iowa on 
 
            February 25, 1994.  The record consists of testimony from 
 
            James Alexander, Tim Pertzborn, Bill Mitchell and Kurt 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Kruse.  The record also contains joint exhibits A through G, 
 
            claimant's exhibits 1 through 13 and defendants' exhibits H 
 
            through V and Z. 
 
           
 
                              FINDINGS OF FACT
 
            
 
                 There is no dispute about the occurrences of the 
 
            injuries.  The only disputes deal with disability and the 
 
            parts of the body affected.  
 
            
 
                 With regard to the February 21, 1989 injury to 
 
            claimant's left shoulder, it is apparent that the injury is 
 
            not one that is limited to his arm.  The surgery which was 
 
            performed was excision of the distal clavicle.  (exhibit 3, 
 
            page 17).  The treating orthopedic surgeon assigned an 
 
            impairment rating of 7 percent of the upper extremity which 
 
            he stated was equivalent to 4 percent of the whole person.  
 
            (ex. 3, p. 16).  There was limitation of range of motion but 
 
            no pain was noted.  The medical records indicate conditions 
 
            in the shoulder such as bursitis or tendinitis.  There is 
 
            nothing in the records which makes reference to any 
 
            physiological or anatomical abnormality in the claimant's 
 
            right arm.  It is found that the injury of February 21, 1989 
 
            is not limited to the claimant's right arm, though it does 
 
            impair his ability to make full use of his arm.  The origin 
 
            and situs of the physiological impairment which produces the 
 
            loss of range of motion and loss of use of the arm is found 
 
            within the claimant's shoulder.  The impairments rated by 
 
            Dr. Breedlove are found to be correct.  
 
            
 
                 On July 24, 1990, claimant injured his left hand when a 
 
            trailer dolly dropped on it.  It is apparent from the 
 
            medical records that the original situs of the trauma was 
 
            not limited to claimant's fingers.  (ex. 2, pp. 11-13).  
 
            There are repeated references to the metacarpals which are 
 
            the joints which connect the palm with the digits.  A 
 
            functional capacity evaluation was performed on October 4, 
 
            1990.  The results were considered valid and indicated that 
 
            claimant's left hand was limited to light to medium 
 
            employment.  (ex. 3, p. 24).  James L. Blessman, M.D., has 
 
            rated claimant as having a 6 percent permanent impairment of 
 
            his left hand due to slight limitation of flexion of the 
 
            left index finger at the metacarpal joint.  (ex. 2, p. 8).  
 
            Delwin E. Quenzer, M.D., a hand surgery specialist, rated 
 
            claimant as having a 4.5 percent permanent impairment of the 
 
            left hand due to irritability of the lateral antebrachial 
 
            cutaneous nerve at the level of the hand and difficulty with 
 
            fine motor coordination and cramping of the hand and 
 
            weakness of grip reflecting impairment of the ulnar nerve 
 
            below the forearm.  (ex. 7, p. 29).  It is found that the 
 
            claimant's injury to the hand extends into the hand.  It is 
 
            not limited to his fingers.  
 
            
 
                 It is noted that Dr. Blessman and Dr. Quenzer appear to 
 
            have rated different ailments affecting claimant's hand.  
 
            The functional capacity evaluation appeared to be quite 
 
            limiting.  When all the evidence regarding the claimant's 
 
            loss of use of his left hand is considered, it is found that 
 
            he has a 10 percent loss of use of his left hand as a result 
 
            of the July 24, 1990 injury.  
 
            
 
                 James Alexander is a 41-year-old man who graduated from 
 
            high school in 1972 but has no further formal education.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            His work history has involved construction and truck 
 
            driving.  Alexander had been employed at United Parcel 
 
            Service since May 1984.  He always worked as a feeder 
 
            driver.  This work involved some loading and unloading 
 
            activities.  Following both of the injuries which are the 
 
            subject of this decision, Alexander resumed work with United 
 
            Parcel Service at his customary job without reduction in 
 
            work duties or pay.  Claimant's employment with United 
 
            Parcel Service ended by him being terminated, reinstated and 
 
            then by him simply failing to report for work after he had 
 
            been reinstated.  Claimant has since found other work as a 
 
            truck driver at a job which does not require much in the way 
 
            of loading or unloading.  He hauls fluids and simply 
 
            attaches and detaches hoses and opens and closes valves in 
 
            order to load and unload.  
 
            
 
                 It is found that claimant's shoulder problems would 
 
            provide some impediment to work in the construction industry 
 
            since construction work often involves overhead reaching and 
 
            overhead work.  The results of the injuries which are the 
 
            subject of this decision present some impediment to his 
 
            ability to perform loading and unloading types of 
 
            activities.  He was, however, able to perform those 
 
            activities to the satisfaction of the employer in this case.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 A principal issue in this case deals with the February 
 
            21, 1989 injury.  It has been found that the injury was to 
 
            the shoulder, not to the claimant's arm.  While the major 
 
            impact of the shoulder injury manifests itself in loss of 
 
            ability to make full use of the arm, the source and origin 
 
            of that loss is in the shoulder, not within the arm.  The 
 
            disability is therefore not a scheduled disability of the 
 
            arm.  It is one which is to be compensated industrially.  
 
            Haffner v. Electrical Systems, file number 955542 (App. 
 
            Dec. Feb. 25, 1994); Weavill v. John Morrell and Co., file 
 
            number 903186 (July 22, 1993).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 It is therefore determined that claimant's disability 
 
            resulting from the injury of February 21, 1989 is to be 
 
            compensated under section 85.34(2)(u).  
 
            
 
                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 It is determined that James Alexander has a 5 percent 
 
            permanent partial disability as a result of the injury of 
 
            February 21, 1989.  This is based primarily on his limited 
 
            range of motion affecting his right shoulder and arm.  It 
 
            entitles him to receive 25 weeks of compensation for 
 
            permanent partial disability under section 85.34(2)(u).  
 
            
 
                 The 10 percent permanent partial disability of the 
 
            claimant's left hand entitles him to recover 19 weeks of 
 
            compensation under the provisions of section 85.34(2)(l).
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 The fact that the condition affecting the claimant's 
 
            left hand extends into the metacarpal joint is, by itself, 
 
            sufficient to make the injury one which is not limited to 
 
            the fingers.  Vogel v. Second Injury Fund, file number 
 
            925720 (App. Dec. April 30, 1993).  In view of this 
 
            precedent, it is not necessary to perform an analysis of 
 
            whether or not fingers are a part of the hand as is 
 
            indicated by common usage, medical treatises and legal 
 
            treatises.  This is clearly a case in which the Second 
 
            Injury Fund is potentially liable in view of the shoulder 
 
            injury causing a loss of use of the right arm and the hand 
 
            injury causing a loss of use of the left hand.  
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 When the claimant's disability, including his left hand 
 
            and right shoulder, is considered, it is determined that he 
 
            has a 10 percent permanent partial disability.  The 
 
            compensable value of a 10 percent permanent partial 
 
            disability is 50 weeks.  The compensable value of the left 
 
            hand injury has been established in this decision to be 19 
 
            weeks while the compensable value of the right shoulder 
 
            injury has been determined to be 25 weeks.  Accordingly, the 
 
            Second Injury Fund is responsible to pay six weeks of 
 
            compensation to the claimant.  
 
            
 
                 The hearing reports filed in these cases indicate that 
 
            the claimant has been paid 20 2/7 weeks of permanent partial 
 
            disability for the right shoulder injury at the stipulated 
 
            rate of $377.66 per week.  The report in file number 958189 
 
            representing the left hand injury shows that 11 4/7 weeks of 
 
            permanent partial disability benefits have been paid at the 
 
            stipulated rate of $429.45 per week.  The award in this 
 
            decision provides claimant 25 weeks of compensation for 
 
            permanent partial disability representing a 5 percent 
 
            permanent partial disability resulting from the right 
 
            shoulder injury.  Accordingly, the employer has underpaid 
 
            benefits in that case by 4 5/7 weeks which are payable at 
 
            the rate of $377.66 per week.  In file number 958189 the 
 
            employer's liability is 19 weeks.  This leaves an unpaid 
 
            balance of 7 3/7 weeks of benefits which are payable at the 
 
            rate of $429.45 per week.  The liability of the Second 
 
            Injury Fund is for 6 weeks of benefits at the rate of 
 
            $429.45 per week.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that in file number 912324, 
 
            based upon the right shoulder injury of February 21, 1989, 
 
            that the defendants employer and insurance carrier pay an 
 
            additional four and five-sevenths (4 5/7) weeks of 
 
            compensation to the claimant for permanent partial 
 
            disability at the rate of three hundred seventy-seven and 
 
            66/100 dollars ($377.66).  The entire amount thereof is past 
 
            due and owing and shall be paid in a lump sum together with 
 
            interest pursuant to section 85.30 computed from June 3, 
 
            1991.
 
            
 
                 It is further ordered that in file number 958189, the 
 
            defendants employer and insurance carrier pay to claimant 
 
            seven and three-sevenths (7 3/7) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of four 
 
            hundred twenty-nine and 45/100 dollars ($429.45) per week 
 
            payable commencing November 6, 1990.  The entire amount 
 
            thereof is past due and owing and shall be paid in a lump 
 
            sum together with interest pursuant to section 85.30.
 
            
 
                 It is further ordered that the Second Injury Fund of 
 
            Iowa pay the claimant six (6) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of four 
 
            hundred twenty-nine and 45/100 dollars ($429.45) payable in 
 
            a lump sum on the date of this decision.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed equally between the employer and the Second Injury 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Fund of Iowa.
 
            
 
                 It is further ordered that all defendants in this case 
 
            file claim activity reports as requested by this agency 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this __________ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steven Cantonwine
 
            Attorney at Law
 
            Breakwater Bldg
 
            3708 75th St
 
            Des Moines, Iowa  50322
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                            51803.1, 51803, 51302.2
 
                                            Filed May 31, 1994
 
                                            Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES ALEXANDER,    
 
                          
 
                 Claimant,           
 
                      
 
            vs.                          File Nos.  958189 & 912324
 
                           
 
            UNITED PARCEL SERVICES,  
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                      
 
            AND       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            51803.1
 
            
 
            Shoulder injury held an injury to the body as a whole, not 
 
            an injury to the arm.
 
            
 
            51803
 
            Hand injury held to be 10 percent based upon ratings of 4.5 
 
            percent, 6 percent and a functional capacity evaluation 
 
            which limited the hand to medium work.  
 
            
 
            51302.2
 
            Shoulder injury which produced loss of use of arm held to be 
 
            a basis for the prior loss.  A hand injury which involved 
 
            the metacarpal joint held to be a qualifying second injury 
 
            for Second Injury Fund liability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEOLA M. FISHER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 912471
 
            QUAKER OATS COMPANY,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant, Leola Fisher, seeks benefits under the Iowa 
 
            Workers' Compensation Act upon her petition in arbitration 
 
            against defendant Second Injury Fund of Iowa.  She sustained 
 
            a work injury on March 8, 1989 while in the employ of Quaker 
 
            Oats Company.  That employer was originally a defendant in 
 
            this action, but has separately entered into an agreement 
 
            for settlement with claimant.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa on 
 
            March 30, 1992.  Claimant testified personally.  Claimant's 
 
            exhibits 1-5 and Second Injury Fund exhibits A and B were 
 
            received into evidence.  Second Injury Fund exhibit C was 
 
            offered, but claimant's objections as to relevance were 
 
            taken under advisement.  Those objections are now overruled 
 
            and the exhibit is received.
 
            
 
                                      issues
 
            
 
                 Claimant and the Second Injury Fund of Iowa have 
 
            stipulated that she sustained an injury arising out of and 
 
            in the course of employment on March 8, 1989.  The parties 
 
            have also stipulated to a compensation rate of $387.82 per 
 
            week.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The nature and extent of permanent disability;
 
            
 
                 2.  Whether the Second Injury Fund of Iowa is liable on 
 
            the claim.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Leola Fisher, 57 years of age at hearing, is a college 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            graduate who was employed by a radio manufacturer from 1953 
 
            to 1981, except for approximately two years when she went 
 
            into the construction business with her then husband.  At 
 
            Collins Radio, she was group leader, mostly in a repair 
 
            department.  
 
            
 
                 Ms. Fisher took work with Quaker Oats in July 1982, and 
 
            has remained in that employment to the present time, except 
 
            for intermittent layoffs.  She has worked primarily in the 
 
            package department, although holding various other jobs for 
 
            brief periods.  Ms. Fisher characterized all her work with 
 
            Quaker Oats as manual labor.
 
            
 
                 In March 1989, claimant was operating a machine in the 
 
            package department, earning $12.34 per hour.  In 12 of the 
 
            13 weeks prior to her injury, claimant worked an average of 
 
            53.08 hours per week.  She testified to working all 
 
            available overtime hours prior to the work injury.
 
            
 
                 Claimant was injured while descending on a "man lift" 
 
            at the end of her shift.  This is apparently an endless loop 
 
            device equipped with steps or rungs upon which employees can 
 
            stand.  Claimant missed her stepping off point and her feet 
 
            became jammed by the next step or rung.  She suffered a 
 
            crush injury with severe lacerations across the dorsum of 
 
            both feet near the ankle joint.
 
            
 
                 Prior to this injury, claimant had no medical 
 
            restrictions on her activities.  Unfortunately, her recovery 
 
            has been incomplete.  The primary treating physician, Warren 
 
            N. Verdeck, M.D., has imposed restrictions against standing 
 
            more than 2-3 hours at a time, lifting over 40 pounds 
 
            (occasionally) and against working in excess of eight hour 
 
            days.  On April 20, 1990, Dr. Verdeck assigned an impairment 
 
            rating of five percent of each lower extremity due to 
 
            complaints of residual pain.  In a letter to defense counsel 
 
            dated March 9, 1992, Dr. Verdeck estimated that 
 
            approximately 50 percent of those symptoms related to the 
 
            work injury, and 50 percent to a chronic degenerative 
 
            condition.
 
            
 
                 Due to these restrictions, claimant was unable to 
 
            return to her former job.  Quaker Oats was able to give her 
 
            a job meeting the restrictions, but at a base wage 17.5 
 
            cents per hour less than her former job (both jobs are at a 
 
            substantially higher hourly rate than at the time of 
 
            injury).  Claimant's major loss of income is due to her 
 
            restriction against overtime hours.
 
            
 
                 Claimant was also seen by James E. Crouse, M.D., for 
 
            evaluation.  Noting that the crush injury had resulted in 
 
            pain, swelling and numbness to both feet resulting in an 
 
            abnormal gait and limited standing and walking, Dr. Crouse 
 
            assigned an impairment rating of 13 percent of each foot, 
 
            equivalent to a nine percent impairment of each leg.
 
            
 
                 Ms. Fisher now complains of continued pain and 
 
            numbness, an inability to stand over two hours, climb stairs 
 
            or ladders, do gardening, or walk long distances.  She has 
 
            moved her residence to a one-story house due to her problem 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with stairs.
 
            
 
                 In the view of this writer, the impairment rating 
 
            assigned by Dr. Crouse better reflects claimant's  continued 
 
            symptoms and physical restrictions than the rating assigned 
 
            by Dr. Verdeck.
 
            
 
                 Following a fall down stairs in 1971, claimant 
 
            underwent surgery to the left knee.  A very severe 
 
            chondritis of the patella was repaired by shaving.  Although 
 
            the record does not show that any physician has assigned an 
 
            impairment rating, Dr. Crouse opined that the injury 
 
            resulted in degenerative arthritis and impairment.
 
            
 
                 In 1987, claimant sustained injury to her right arm 
 
            when it was pinned against a wall by a forklift truck.  Ms. 
 
            Fisher complains of continued symptoms with repetitive 
 
            movement, and Dr. Crouse concurs that there is residual 
 
            impairment.  Again, no numerical impairment rating appears 
 
            of record.
 
            
 
                 Based on claimant's residual symptoms without medical 
 
            restrictions, it seems reasonable to assign a five percent 
 
            impairment to both the left leg and right arm for purposes 
 
            of determining Second Injury Fund liability.
 
            
 
                                conclusions of law
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Although claimant's previous losses to the left leg and 
 
            right arm have not been assigned numerical impairment 
 
            ratings, claimant has established some loss of function.  
 
            The work injury has clearly caused loss to both feet.  Fund 
 
            liability is triggered.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Even though claimant is now earning an hourly wage in 
 
            excess of her wage at the time of injury, her medical 
 
            restrictions severely limit the types of physical labor she 
 
            might otherwise do.  Not all potential employers are likely 
 
            to be so accommodating as Quaker Oats has been in this case.  
 
            And, claimant has suffered a significant diminution in her 
 
            actual earnings due to the restriction against working 
 
            overtime.  It will be recalled that she was working an 
 
            average of 13 hours per week overtime shortly before the 
 
            work injury, the only time period reflected in the record.  
 
            On the other hand, it will be recalled that claimant has a 
 
            bachelor's degree and many years of experience as a steady 
 
            employee, including supervisory duties with Collins Radio.
 
            
 
                 Given then these factors in particular and the record 
 
            otherwise in general, it is concluded that claimant has 
 
            sustained an industrial disability equivalent to thirty 
 
            percent of the body as a whole by reason of the subject work 
 
            injury.
 
            
 
                 Thirty percent of 500 weeks is 150 weeks.  To determine 
 
            Second Injury Fund liability, one must deduct from this 
 
            total the impairment of the work injury, plus the 
 
            preexisting impairment to the left leg and right arm.  Under 
 
            Iowa Code section 85.34, the loss of an arm is compensated 
 
            by benefits for 250 weeks.  Five percent of this is 12.5 
 
            weeks.  The leg is compensated during 220 weeks; five 
 
            percent is equivalent to eleven weeks.  The loss of a foot 
 
            is compensated during 150 weeks.  Thirteen percent is 
 
            equivalent to 19.5 weeks, or 39 weeks for both feet.  The 
 
            total is 62.5 weeks, which, when deducted from 150 weeks, 
 
            leaves Second Injury Fund liability at 87.5 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 The Second Injury Fund of Iowa shall pay unto claimant  
 
            eighty-seven point five (87.5) weeks of benefits at the rate 
 
            of three hundred eighty-seven and 82/100 dollars ($387.82) 
 
            per week.
 
            
 
                 Interest shall accrue from the date of this decision.
 
            
 
                 Each party shall be responsible for its own costs.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr Robert R Rush
 
            Attorney at Law
 
            526 2nd Avenue SE
 
            Cedar Rapids Iowa 52406
 
            
 
            Mr James E Shipman
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids Iowa 52401
 
            
 
            Mr Robert D Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-3201
 
                                          Filed December 3, 1992
 
                                          DAVID R. RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEOLA M. FISHER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 912471
 
            QUAKER OATS COMPANY,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-3201
 
            Second Injury Fund liability was determined.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAREN LANGHOFF
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                 File No. 912693
 
         SAPP BROTHERS PETROLEUM, INC.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FEDERATED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Karen 
 
         Langhoff, n/k/a Karen Barry, claimant, against Sapp Brothers 
 
         Petroleum, Inc., employer, and its insurance carrier, Federated 
 
         Insurance, defendants.  The case was heard by the undersigned in 
 
         Council Bluffs, Iowa on May 4, 1990.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Steve Schuster, claims 
 
         adjuster, for defendant-insurance carrier.  Additionally, the 
 
         record consists of joint exhibits 1-5.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted 
 
         and approved on May 4, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1. Whether there is a casual relationship between the 
 
         alleged injuries and the disability;
 
         
 
              2. Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 
         
 
              3. Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing,.the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2. That claimant sustained an injury on March 13, 1989, 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3. That the injury is a cause of temporary disability 
 
         during a period of recovery;
 
         
 
              4. That in the event of an award of weekly benefits, the 
 
         rate of weekly compensation is stipulated to be $97.44 per week; 
 
         and,
 
         
 
              5. That defendants paid claimant 8 2/7 weeks of 
 
         compensation at the rate of $97.44 per week prior to hearing.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 28 years old.  She testified she worked on two 
 
         separate occasions for defendant.  During the second period of 
 
         employment, claimant was hired as a janitor to clean a portion of 
 
         defendant's truck stop.
 
         
 
              On the date in question, claimant stated she had just 
 
         completed filling two plastic garbage bags with trash.  She 
 
         testified she walked outdoors carrying a bag in each hand.  She 
 
         reported she was just ready to fling a bag over her head and into 
 
         the company dumpster when she fell backwards onto the pavement.  
 
         Claimant testified she landed on her buttocks, but she was able 
 
         to pull herself back up and continue with her duties.  Claimant 
 
         testified she was able to complete her designated shift.
 
         
 
              According to claimant's testimony, she had two scheduled 
 
         days off following the date of her injury.  She stated she 
 
         experienced increasing pain in her neck, back and hips.  As a 
 
         result, claimant reported she sought treatment from Deanna J. 
 
         Rogge, D.C.
 
         
 
              Claimant indicated she returned to a light duty position as 
 
         a cashier for two days subsequent to her injury.  However, 
 
         claimant testified she was unable to continue working in this 
 
         light duty position.  As a result, claimant stayed away from 
 
         work.
 
         
 
              Steve Schuster testified for defendants.  He reported he 
 
         was the claims adjuster assigned to handle claimant's workers' 
 
         com-
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 3
 
         
 
         
 
         pensation file.  Mr. Schuster testified he informed claimant she 
 
         was to have an examination by Len Weber, M.D., a board certified 
 
         neurologist.  Mr. Schuster also testified that he later notified 
 
         claimant by a letter dated April 18, 1989, that her workers' 
 
         compensation benefits would terminate 30 days from the date of 
 
         the letter and that her authorized treating medical practitioner 
 
         was Dr. Weber and not Dr. Rogge.
 
         
 
              Dr. Weber testified by way of deposition that he examined 
 
         claimant on April 14, 1989, for purposes of an evaluation.  Dr. 
 
         Weber reported the exam lasted 45 to 50 minutes.  Dr. Weber 
 
         opined to a reasonable degree of medical certainty that:
 
         
 
              Q.  Doctor, could you tell us what your diagnosis or 
 
              impressions of Miss Langhoff were on April 14th, 1989?
 
              
 
              A.  My impressions were four, first, that she had fallen on 
 
              her buttocks on the date of March 13th, 1989; secondly, that 
 
              her complaints of neck and shoulder and back discomfort 
 
              appeared to be simple muscle soreness that were related to 
 
              the fall on the buttocks; the third was that she had some 
 
              mild injury of nerves called the lateral femoral cutaneous 
 
              nerves of the thighs.  I felt that these mild injuries were 
 
              present on both sides in that they were incidental and 
 
              unrelated to the fall onto the buttocks and that they were 
 
              manifested by some slight decrease in her ability to feel 
 
              the sharpness of pin and the coolness of a cool tuning fork 
 
              on the lateral aspect of the thighs bilaterally.  I see that 
 
              there is a typographical error in that third impression on 
 
              page three of that report.  That should read manifested by 
 
              some mild diminution of sharpness of pin and coolness of the 
 
              cool tuning fork on the lateral thighs bilaterally.  The 
 
              fourth impression was that the neurologic examination was 
 
              otherwise objectively normal.
 
              
 
              Q.  Doctor, with respect to your third finding of mild 
 
              injury of the lateral femoral cutaneous nerves of the thighs 
 
              bilaterally, you indicated that that finding was not related 
 
              in any way to her fall of March 13, 1989.
 
              
 
              A.  That's correct.
 
              
 
              Q.  Could you explain for the Industrial Commissioner the 
 
              reason that you found that that finding was unrelated to her 
 
              fall of March 13th?
 
              
 
              A.  The lateral femoral cutaneous nerves are nerves that run 
 
              across the front of the thigh.  The fall was
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 4
 
         
 
         
 
              onto the buttocks and anatomically distant from the site 
 
              where these nerves are.  The second thing is that these 
 
              nerves are commonly injured simply in obese individuals.  
 
              And with:her height of five foot, five and a half inches, 
 
              and her weight of 220 pounds, she'd be a setup to have these 
 
              type of nerve injuries.  The other thing that was in favor 
 
              of this simply being related to her build and simply 
 
              compression of the nerves across the thighs would be the 
 
              symmetry of the findings.
 
              
 
              Q.  Doctor, based on your examination of Miss Langhoff and 
 
              your expertise as a neurologist, do you have an opinion 
 
              within a reasonable degree of medical certainty as to 
 
              whether Karen Langhoff manifested any permanent disability 
 
              at the time that you saw her on April 14th?
 
              
 
              A.  Yes, sir.
 
              
 
              Q.  And what is that opinion?
 
              
 
              A.  I saw nothing that would suggest permanency in her 
 
              symptoms.
 
              
 
              Q.  Doctor, did you place any restrictions on Ms. Langhoff's 
 
              activities, be they vocational or otherwise?
 
              
 
              A.  No, sir.
 
              
 
              Q.  Doctor, based on your, again, your expertise as a 
 
              neurologist and your examination of Ms. Langhoff, do you 
 
              have an opinion within a reasonable degree of medical 
 
              certainty as to whether any further neurologic testing was 
 
              needed at that time? April 14th, I mean.
 
              
 
              A.  I do have an opinion.
 
              
 
              Q.  And what is that opinion, sir?
 
              
 
              A.  That further neurologic testing was not needed.
 
              
 
              Q.  Again based on your experience and your examination, did 
 
              you have an opinion as to whether any further treatment was 
 
              needed for Ms. Langhoff?
 
              
 
              A.  Yes.
 
              
 
              Q.  And what is that opinion, sir?
 
              
 
              A.  I felt that the best thing that she could do would be to 
 
              get back into her job activities to take
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 5
 
         
 
         
 
              her mind off the soreness, that the work would encourage her 
 
              to use and stretch these muscles that were sore, which I 
 
              felt was what she really needs to do to get to feeling 
 
              better faster.
 
              
 
              Q.  Doctor, once again based on your examination of Ms. 
 
              Langhoff and your expertise, do you have an opinion within a 
 
              reasonable degree of medical certainty as to whether or not 
 
              Ms. Langhoff was capable of doing her job or something 
 
              substantially similar on April 14th
 
              
 
              A.  Yes, sir.
 
              
 
              Q.  -- of 1989? And what is that opinion?
 
              
 
              A.  As I stated, I felt that she could return to job 
 
              activities without any restrictions.
 
              
 
              Q.  Doctor, as of April 14th, 1989, was there any medical 
 
              reason or any medical evidence that Karen Langhoff should 
 
              have sought chiropractic care?
 
              
 
                   MR. PETERS:  Could you read that question back, please?
 
              
 
                   (WHEREUPON, the requested portion of the record was 
 
              read by the Reporter.)
 
              
 
              A.  I didn't see any medical indication for it.
 
              
 
              Q.  (Mr. Grotnes, continuing) Doctor, did you recommend that 
 
              Karen Langhoff seek chiropractic care?
 
              
 
              A.  I think I stated that if she was desirous of continuing 
 
              chiropracty, that if she was going to see the chiropractor, 
 
              she ought to see him at a time when it wouldn't interfere 
 
              with her job activities.  I didn't recommend that she 
 
              continue chiropracty.  I saw no reason for it.
 
              
 
                   MR. GROTNES:  That's all I have, Doctor.  Thank you.
 
         
 
         (Exhibit 2, pages 17-21)
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of March 13, 1989, is casually 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 6
 
         
 
         
 
         Lindahl v. L. 0. 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 casual connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with 
 
         all other evidence introduced bearing on the casual 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. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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 v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 7
 
         
 
         
 
         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).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has not proven by a preponderance of the evidence 
 
         that she has sustained a permanent disability.  Dr. Weber is a 
 
         board certified neurologist.  He found no manifestations of any 
 
         functional impairment.  Dr. Weber in no way restricted claimant's 
 
         activities.  He recommended claimant return to work to stretch 
 
         her muscles.
 
         
 
              Claimant's treating chiropractor, Deanna J. Rogge, wrote in 
 
         her report of April 12, 1990:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              I am writing in response to the request you sent
 
              recently for an impairment rating on Karen Langhoff.
 
              
 
              This requires an indepth [sic] exam and analysis of
 
              the exam results utilizing a computerized service in
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 8
 
         
 
         
 
              Kansas City.  This can take 2-4 weeks advance notice by
 
              you and we also request payment in advance.  The cost is 
 
              $150.00.
 
              
 
                 During Karens' last visit to this office on 04-09-90, I 
 
              performed a re-examination and Karen received a chiropractic 
 
              spinal treatment.
 
              
 
                 Karen has requested to be released from care at this time 
 
              and I have agreed to do so.
 
              
 
                 ...
 
              
 
                 I.expect that she will require a chiropractic 
 
              treatment,every 2-4 weeks for the forseeable [sic] future to 
 
              remain symptom free.
 
              
 
                 The prognosis in this case is good at the present time.  
 
              This patient has shown considerable relief of her 
 
              symptomatic state.  It should be borne in mind that post 
 
              traumatic pathology is probable since the principle injury 
 
              was one of ligamentous and muscular sprain and strain of the 
 
              joints of the body.  Comparative examinations including 
 
              x-rays should be made periodically to evaluate this 
 
              patient's improvement and to determine the actual degree of 
 
              post traumatic pathology and disability, if any.  According 
 
              to the 1989 "AMA Guide To The Evaluation Of Permanent 
 
              Impairment", if a patient is not symptom free after 6 months 
 
              of continuous treatment there is a permanent impairment.  I 
 
              believe that she has sustained a degree of permanent 
 
              impairment, although an exact rating has not been assigned 
 
              to this patient.
 
         
 
              Even Dr. Rogge did not assign a functional impairment 
 
         rating.  Dr. Rogge it appears did not determine whether there was 
 
         any "actual degree of post traumatic pathology."  Nor did Dr. 
 
         Rogge discuss whether x-rays revealed objective abnormalities.  
 
         In light of the fact Dr. Weber is a board certified neurologist, 
 
         and Dr. Rogge is a chiropractor with less education, the 
 
         undersigned has determined the greater weight of the evidence is 
 
         with Dr. Weber.  This is consistent with the rational found in 
 
         Reiland v. Palco Inc., Thirty-Second Biennial Report of the 
 
         Industrial Commissioner 56 (1975).  Therefore, it is held that 
 
         claimant does not have a permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The next issue to address is whether claimant is entitled 
 
         to temporary total disability benefits.  Section 85.33(l) governs 
 
         the payment of temporary total disability benefits.  The section 
 
         reads as follows:
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 9
 
         
 
         
 
              1. Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to,work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
              Dr. Weber released claimant to return to work as of April 
 
         14, 1989.  No restrictions were placed upon claimant.  Dr. Rogge 
 
         did not release claimant to return to work until claimant made a 
 
         request of her chiropractor on April 12, 1990.  Again more weight 
 
         is given to the opinion of the board certified neurologist.  It 
 
         is the determination of the undersigned that as of April 14, 
 
         1989, claimant was medically capable of returning to employment 
 
         substantially similar to the employment in which she was engaged 
 
         at the time of the injury.  Weekly benefits are due from the date 
 
         of the injury, March 13, 1989 to April 14, 1989.
 
         
 
              Finally, there is the issue whether certain chiropractic 
 
         treatments are authorized medical procedures under section 85.27.  
 
         Defendants paid claimant's chiropractic bills through April 18, 
 
         1989.  That was the date defendant insurance carrier notified 
 
         claimant in writing that Dr. Rogge was not an authorized 
 
         practitioner and additional chiropractic treatment from Dr. Rogge 
 
         would be considered unauthorized.
 
         
 
              Section 85.27 of the Iowa Code provides in relevant portion 
 
         that:
 
         
 
              For purposes of this section, the employer is obliged to 
 
              furnish reasonable services and supplies to treat an injured 
 
              employee, and has the right to choose the care.
 
         
 
              As of April 18, 1989, claimant was notified that Dr  
 
         Leonard Weber was the authorized treating physician.  Dr. Weber 
 
         was a medical doctor who was board certified.  Defendants were 
 
         offering his services to claimant.  The services were reasonable.  
 
         Claimant refused additional treatment by him.  It was her 
 
         voluntary decision.
 
         
 
              Claimant, however, selected to continue treating with Dr. 
 
         Rogge.  This was done with the full knowledge the treatment was 
 
         unauthorized.  This was claimant's prerogative.  It is the 
 
         determination of this deputy that chiropractic charges subsequent 
 
         to April 18, 1989, were for unauthorized medical treatment.  
 
         Therefore, defendants are not liable for the same.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant argues that even if the treatments were 
 
         unauthorized, they provided relief to claimant.  Therefore, 
 
         defendants
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 10
 
         
 
         
 
         should be held liable for the charges since the treatments 
 
         provided relief.
 
         
 
              Once again the undersigned refers the reader to 
 
         Reiland, supra.  Here, as above, greater weight is accorded to 
 
         the determination of Dr. Weber who is a board certified 
 
         neurologist.  Dr. Weber opined claimant sustained simple muscle 
 
         soreness.  Therefore, the chiropractic treatments would not have 
 
         been necessary after claimant wAs released to return to work.  
 
         Again, defendants are not liable for the chiropractic changes 
 
         after April 18, 1989.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              Finding 1. As a result of her work injury on March 13, 
 
         1989, claimant sustained a temporary total disability.
 
         
 
              Finding 2. Claimant was temporarily and totally disabled 
 
         from March 13, 1989 to April 14, 1989.
 
         
 
              Finding 3. As of April 14, 1989, claimant was notified that 
 
         Leonard Weber, M.D., was her authorized treating physician.
 
         
 
              Finding 4. After April 18, 1989, claimant continued to 
 
         treat with Deanna J. Rogge, D.C., even though claimant knew Dr. 
 
         Rogge was not an authorized treating practitioner.
 
         
 
              Finding 5.  Claimant incurred certain expenditures from Dr. 
 
         Rogge after April 18, 1989.
 
         
 
              Conclusion A. Claimant has proven by a preponderance of the 
 
         evidence that she was temporarily and totally disabled from March 
 
         13, 1989 to April 14, 1989.
 
         
 
              Conclusion B. Defendants are not liable for claimant's 
 
         medical bills incurred from Dr. Rogge after April 18, 1989.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant four point 
 
         seven-one-four (4.714) weeks of temporary total disability 
 
         benefits at the stipulated rate of ninety-seven and 44/100 
 
         dollars ($97.44) per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
         
 
         
 
         LANGHOFF V. SAPP BROTHERS PETROLEUM, INC.
 
         Page 11
 
         
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Each party shall bear its own costs.
 
         
 
              Defendants shall file a claim activity report.
 
         
 
         
 
         
 
              Signed and filed this 11th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               MICHELLE A. McGOVERN
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacob Peters
 
         Attorney at Law
 
         P 0 Box 1078
 
         Council Bluffs  IA  51502
 
         
 
         Mr. Frank T. Harrison
 
         Mr. Matt Grotness
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801; 5-2700
 
                                               Filed May 11, 1990
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAREN LANGHOFF,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                 File No. 912693
 
         SAPP BROTHERS PETROLEUM, INC.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FEDERATED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1801
 
         
 
              Claimant was only temporarily disabled after a fall on the 
 
         employer's premises.
 
         
 
         
 
         5-2700
 
         
 
              As of April 18, 1989, claimant was notified her 
 
         chiropractic treatments were unauthorized.  Claimant with full 
 
         knowledge continued the treatments.  Held: chiropractic 
 
         treatments were unauthorized.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MATTHEW R. FLEMING,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 912741
 
            THOMS-PROESTLER COMPANY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Matthew 
 
            R. Fleming, claimant, against Thoms-Proestler Company, 
 
            employer (hereinafter referred to as Thoms-Proestler), and 
 
            Liberty Mutual Insurance Company, insurance carrier, 
 
            defendants, for workers' compensation benefits as a result 
 
            of an alleged injury on March 6, 1989.  On May 8, 1991, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On March 6, 1989, claimant received an injury which 
 
            arose out of and in the course of his employment with 
 
            Thoms-Proestler.
 
            
 
                 2.  The injury was a cause of a period of temporary 
 
            total disability during recovery from the injury.  Claimant 
 
            was off work for three periods of time:  from March 7, 1989 
 
            through March 20, 1989; from March 24, 1989 through May 21, 
 
            1989; and, from December 16, 1989 through April 12, 1990.  
 
            The defendants voluntarily paid temporary total disability 
 
            benefits for the first two periods of time and agrees that 
 
            claimant was off work as a result of the injury for these 
 
            times.  In this proceeding claimant is seeking temporary 
 
            total disability or healing period benefits for only the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            last period of time and defendants agree that he was not 
 
            working during this time.  Defendants assert that the 
 
            claimant's disability during that period of time was not 
 
            related to the work injury.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation shall be 
 
            $256.10.
 
            
 
                 5.  With reference to the requested medical expenses 
 
            set forth in the prehearing report, defendants agree that 
 
            they were fair and reasonable and causally connected to the 
 
            medical condition upon which the claim is based but dispute 
 
            the causal connection of these expenses to a work injury.
 
            
 
                 6.  It was agreed that defendants are entitled to 
 
            credit under Iowa Code section 85.38(2) for the disability 
 
            income payments claimant received as set forth in the 
 
            prehearing report.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to disability 
 
            benefits; and,
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.  Also, all other witnesses 
 
            testifying appeared credible, including the defense witness.
 
            
 
                 Claimant has worked for Thoms-Proestler since 1982 and 
 
            continues to do so at the present time.  During this 
 
            employment, claimant has been a warehouseman.  His duties 
 
            consist of driving fork lift trucks and manually moving 
 
            freight as required.  At times, claimant is required to lift 
 
            up to 100 pounds in his job.  Thoms-Proestler is in the food 
 
            distribution business. 
 
            
 
                  Claimant's work injury in March 1989, involved the low 
 
            back after lifting a 100 pound sack of potatoes.  Claimant 
 
            suffered an immediate onset of low back and right leg pain 
 
            after this lifting incident and sought immediate treatment.  
 
            The week to week clinical treatment of this condition was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            performed by Paul Hartman, M.D., a general practitioner.  
 
            Dr. Hartman's only diagnosis was low back sciatica.  
 
            
 
                 According to Dr. Hartman's office records, claimant has 
 
            a history of back problems dating back to 1985 when he 
 
            injured his low back at work after being pinned between a 
 
            fork lift truck and a railing.  Claimant was off work for 
 
            three weeks at that time.  In February 1986, claimant 
 
            injured his back while lifting.  In May 1986, claimant 
 
            injured his middle and thoracic back which was diagnosed at 
 
            the time as a contusion.  In August 1986, claimant suffered 
 
            another low back injury after lifting and was off work for 
 
            approximately three days.
 
            
 
                 As a result of the injury of March 6, 1989, claimant 
 
            was absent from his job for not only the first two periods 
 
            of time set forth in the parties' stipulation in the 
 
            prehearing report but for the third period of time as well 
 
            from December 16, 1989 through April 12, 1990.  This finding 
 
            is based upon the views of a board certified neurosurgeon, 
 
            Richard A. Roski, M.D., who was referred to claimant by Dr. 
 
            Hartman in January 1990.  Defendants disputed the causal 
 
            connection of the third period of absence from work on the 
 
            basis of a conversation claimant and his wife had with Mike 
 
            Thoms, Vice President of Operations at Thoms-Proestler, in 
 
            December 1989.  Mr. Thoms testified that he was told by 
 
            claimant that he injured his back while hunting on December 
 
            16, 1989 and would not be able to report for work due to 
 
            this injury upon doctor's advice.  Claimant testified that 
 
            although he and three other fellows from his resident town 
 
            went "road hunting" for deer near his home on that date, he 
 
            did nothing more than ride around in his vehicle looking for 
 
            deer but found none.  Claimant stated that the low back pain 
 
            just started with no apparent reason.  Claimant's account of 
 
            the onset of back pain was verified by two of his fellow 
 
            hunters at the time of hearing.  Their testimony appeared 
 
            credible.  Claimant's account was also verified by the 
 
            history of the incident he gave to Dr. Hartman.  
 
            
 
                 Dr. Hartman concluded that the onset of pain was 
 
            causally connected to the vacation hunting and not from the 
 
            original injury.  However, Dr. Roski opines that this onset 
 
            of pain or flare-up, despite the delay, was due to the 
 
            original March 6, 1989 injury.  He made this conclusion 
 
            after reviewing the two CT scans which had been taken 
 
            immediately after the March 6, 1989 injury and the December 
 
            16, 1989 incident.  The views of Dr. Roski were given 
 
            greater weight due to his superior qualifications as a board 
 
            certified specialist in neurosurgery.  It is apparent to the 
 
            undersigned that the vice president of operations simply 
 
            misunderstood what claimant was stating at that time.  It 
 
            would be logical to interpret claimant's reference to the 
 
            onset of pain as an injury.
 
            
 
                 As a result of the work injury of March 6, 1989, 
 
            claimant has a seven percent permanent partial impairment to 
 
            the body as a whole.  Also, claimant is permanently 
 
            restricted to light duty work with occasional lifting up to 
 
            15-25 pounds.  Again, Dr. Hartman denied that claimant 
 
            suffered permanent impairment but the above findings of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            impairment and activity restrictions are based upon the 
 
            views of Dr. Roski due to his superior qualifications.
 
            
 
                 As a result of the work injury of March 6, 1989, 
 
            claimant has suffered only a mild 10 percent loss of earning 
 
            capacity at this time.  Claimant's medical condition before 
 
            the injury was certainly not excellent with the past history 
 
            of back problems, however, he had no ascertainable 
 
            functional impairments or disabilities prior to the work 
 
            injury in this case.  Claimant was able to fully perform 
 
            physical tasks involving heavy lifting, repetitive lifting, 
 
            bending, twisting and stooping and prolonged standing and 
 
            sitting.  As a result of the work injury, claimant now has 
 
            serious activity restrictions.  On the other hand, these 
 
            restrictions have not prevented him from returning to his 
 
            job.  Due to accommodations made by his employer and 
 
            claimant's own desire to return to work, claimant has 
 
            rehabilitated himself and returned to his job without loss 
 
            of pay.  Claimant said that he is now watching what and how 
 
            he lifts in his job.  Claimant admits that he is able to 
 
            lift on occasion up to 100 pounds.  Although claimant has 
 
            not suffered a loss of actual earnings, his employability 
 
            has been effected and he has suffered a loss of earning 
 
            capacity.  Claimant's only work history has involved work in 
 
            unskilled, manual labor jobs.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical 
 
            condition has resulted in an industrial disability is 
 
            determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, 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.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 In this decision, it was found that claimant suffered a 
 
            loss of earning capacity despite a lack of showing of a loss 
 
            of actual earnings.  A showing that claimant had no actual 
 
            loss of earnings does not preclude a finding of industrial 
 
            disability.  See, Michael v. Harrison County, Thirty-Fourth 
 
            Biennial Report, Iowa Industrial Commissioner 218, 220 
 
            (Appeal Decision 1979).
 
            
 
                 Furthermore, it was found that claimant has suffered a 
 
            10 percent loss of earning capacity as a result of the work 
 
            injury.  Based upon such a finding, claimant is entitled as 
 
            a matter of law to 50 weeks of permanent partial disability 
 
            benefits under Iowa Code section 85.34(2)(u) which is 10 
 
            percent of 500 weeks, the maximum allowable for an injury to 
 
            the body as a whole in that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is also entitled to weekly 
 
            benefits for healing period under Iowa Code section 85.34 
 
            from the date of injury until claimant returns to work; 
 
            until claimant is medically capable of returning to 
 
            substantially similar work to the work he was performing at 
 
            the time of the injury; or, until it is indicated that 
 
            significant improvement from the injury is not anticipated, 
 
            whichever occurs first.  It was found that the third period 
 
            of time claimant was off work as set forth in the prehearing 
 
            report is causally connected to the work injury.  Healing 
 
            period benefits will be awarded accordingly.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses, 
 
            otherwise, claimant is entitled to only an order directing 
 
            the responsible defendants to make such payments.  See Krohn 
 
            v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the dispute over medical expenses 
 
            was the causal connection of the condition of the disability 
 
            beginning on December 16, 1989, to the work injury.  The 
 
            causal connection of the expenses to that disability was not 
 
            in dispute.  As the disputed disability was found causally 
 
            connected, the medical expenses will be awarded under the 
 
            parties' stipulation.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred fifty-six and 10/l00 dollars ($256.10) per week from 
 
            April 13, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from December 16, 1989 through April 12, 1990, at 
 
            the rate of two hundred fifty-six and 10/l00 dollars 
 
            ($256.10) per week.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report and exhibit 3.  Claimant shall be 
 
            reimbursed for any of these expenses paid by him.  
 
            Otherwise, defendants shall pay the provider directly along 
 
            with any lawful late payment penalties imposed upon the 
 
            account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 5.  Defendants shall receive credit for previous 
 
            payment of benefits under a non-occupational group insurance 
 
            plan, as set forth in the prehearing report less any tax 
 
            deductions for those payments.
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 7.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendants shall file activity reports on the 
 
            payment of this award pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William G. Gillies, Jr.
 
            Mr. Christopher J. Kockau
 
            Attorneys at Law
 
            P O Box 3460
 
            Rock Island  IL  61204
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed June 20, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MATTHEW R. FLEMING,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 912741
 
            THOMS-PROESTLER COMPANY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Extent of permanent disability benefits.