BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         FLOYD EARL MILLER,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 913296
 
         UNITED ROOFING COMPANY, INC.,   
 
                                                   A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         LIBERTY 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 
 
         March 26, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of June, 1993.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William H. Habhab
 
         Attorney at Law
 
         1216-A Central Ave.
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Joseph S. Cortese II
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1804
 
                                                Filed June 30, 1993
 
                                                Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            FLOYD EARL MILLER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 913296
 
            UNITED ROOFING COMPANY, INC.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            5-1804
 
            Non-precedential, permanent total disability benefits 
 
            awarded to mildly retarded worker who was rendered 
 
            unemployable in the competitive labor market by an inability 
 
            to perform heavy lifting work.  He was found to be odd-lot.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FLOYD EARL MILLER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913296
 
            UNITED ROOFING COMPANY, INC., :
 
                                          :    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 Floyd E. 
 
            Miller, claimant, against United Roofing Company, Inc., 
 
            employer (hereinafter referred to as United Roofing), and 
 
            Liberty Mutual Insurance Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on June 17, 1987.  On February 24, 1992, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On June 17, 1987, claimant received an injury aris
 
            ing out of and in the course of employment with United 
 
            Roofing.
 
            
 
                 2. Claimant's entitlement to healing period benefits 
 
            extends from June 17, 1987 through August 16, 1989.
 
            
 
                 3.  The injury is a cause of some degree of permanent 
 
            disability.  If permanent disability benefits are awarded, 
 
            they shall begin on August 17, 1989.
 
            
 
                 4.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $213.23.  He was single and entitled 
 
            to one exemption.  Claimant's weekly rate of compensation is 
 
            $135.19 according to the Industrial Commissioner's published 
 
            rate booklet for FY 87.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                  5.  All requested medical benefits have been or will 
 
            be paid by defendants. 
 
            
 
                                      ISSUE
 
            
 
                 The only issue presented by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to weekly benefits for permanent disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for United Roofing and its predecessor, 
 
            Ft. Dodge Roofing, since his military service in Vietnam.  
 
            He had also worked for this company on two different periods 
 
            of time prior to Vietnam.  He performed various duties at 
 
            United Roofing including the tending of a hot kettle of 
 
            asphalt, maintenance and driving of trucks and miscellaneous 
 
            manual labor work during tear off of old roofs and 
 
            installing flashings.  Claimant earned from $5.00 - $5.25 
 
            per hour in this job at the time of the injury.  Claimant 
 
            left his employment after the injury and has not returned to 
 
            roofing work.
 
            
 
                 The injury of June 17, 1987 involved a fall from a roof 
 
            on which claimant was working.  Claimant indicated that he 
 
            struck a truck bed before hitting the ground.  The evidence 
 
            was conflicting as to the exact length of the fall but all 
 
            agree that it was at least 20 feet.  The actual cause of the 
 
            fall appeared confused in the record due to conflicting 
 
            accounts by claimant but this confusion did not appear mate
 
            rial as defendants admitted to a work injury.
 
            
 
                 From his fall, claimant suffered multiple fractures.  
 
            The treating orthopedic surgeon, Joe Fellows, M.D., diag
 
            nosed fractures of the clavicle and scapula of the left 
 
            shoulder, left tibial plateau of the knee and multiple ribs.  
 
            Also, there was a diagnosis of acromioclavicular separation 
 
            in the left shoulder.  Two surgical procedures were per
 
            formed to install plates and screws in the left shoulder 
 
            clavicle and tibia near the left knee.  The tibia fracture 
 
            required a bone graft as well.  Claimant was discharged and 
 
            referred to the Veterans Hospital and the care of another 
 
            surgeon, Donald Blair, M.D., in July 1987.  He was not dis
 
            charged from that facility until August 1987.  Due to com
 
            plication with chronic infection of the tibia injury, 
 
            claimant was re-admitted a couple of weeks later for a short 
 
            time.  Claimant was admitted in March 1988 to again deal 
 
            with infection and for physiotherapy.  He was re-admitted in 
 
            August 1989 to remove the plate and screws from the clavi
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            cle.  As stated above, it was agreed at hearing that 
 
            claimant's healing period ended when he reached maximum 
 
            healing in August 1989.
 
            
 
                 The work injury of June 17, 1987 was a cause of a sig
 
            nificant permanent impairment to the body as a whole.  All 
 
            of the physicians who have evaluated claimant's shoulder 
 
            find that the shoulder is impaired due to continuing pain 
 
            and loss of range of motion which adversely impacts the use 
 
            of the arm.  A social security evaluator, E. D. DeHaan, 
 
            M.D., opined such an impairment of use in January 1988.  A 
 
            family practice physician, Dan Cole, M.D., found that as a 
 
            result of shoulder impairment, claimant suffers from a seven 
 
            percent impairment to the upper extremity and four percent 
 
            to the body as a whole using the AMA guides.  Dr. Blair ini
 
            tially found no impairment to the shoulder in April 1991, 
 
            but in a second evaluation using instruments at a later 
 
            date, he found a one percent impairment to the upper extrem
 
            ity due to loss of range of motion to the shoulder.  
 
            Claimant testified that he continues to experience diffi
 
            culty with his shoulder and leg which restricts his ability 
 
            to lift objects and walk.  Dr. Blair has imposed restric
 
            tions consisting of no heavy lifting and to only sedentary 
 
            work at ground level with no climbing of ladders or kneel
 
            ing.  Dr. Cole was a little more specific in his restric
 
            tions by prohibiting lifting over 30 pounds.  Therefore, it 
 
            is found that the injury and permanency extends into the 
 
            body as a whole as claimant's permanent impairment or loss 
 
            of use extends beyond the arm and into the use of the shoul
 
            der due to the fractures and treatment of those fractures.
 
            
 
                 Also, the injury of June 17, 1987, was a cause of a 43 
 
            percent permanent partial impairment to the left lower 
 
            extremity due to his continuing problems from the fracture 
 
            to his leg.  This finding is based solely on the views of 
 
            Dr. Blair who was the only physician to rate claimant's leg 
 
            problems.
 
            
 
                 Claimant is 43 years of age.  He has only a sixth grade 
 
            education and was not able to complete the seventh grade.  
 
            Intellectual testing indicates that he functions at the 
 
            tenth grade level in reading; fifth grade level in arith
 
            metic; and, at the third grade level in spelling.  Claimant 
 
            is mildly retarded and intellectually not suited to retrain
 
            ing.  This is the view of Dan Byers, Ph.D., a clinical psy
 
            chologist, who has evaluated claimant's intellectual and 
 
            memory skills.  Dr. Byers' opinions are uncontroverted.  
 
            Claimant is best suited to unskilled manual labor work given 
 
            his lack of education, intellectual skills and work history.  
 
            Claimant's only past work experience has been work requiring 
 
            heavy lifting such as roofer, plasterer tender, road con
 
            struction worker, animal skinner and "junker."  A junker is 
 
            a person who collects scrap metal, cuts the metal into small 
 
            pieces and sells the metal by the ton to a local scrape iron 
 
            dealer.  Claimant admits he is doing some junker work today 
 
            but can only earn $10 a day due to gas expenses for his 
 
            truck and the fact that he must share income from helpers to 
 
            do the heavy work.  Claimant states that he has contacted 
 
            three employers, including United Roofing to return to roof
 
            ing work but has been rejected.  Claimant remains unemployed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            today except for occasional junking which he has not done 
 
            for at least six months.
 
            
 
                 Two vocational counselors of relative equal training 
 
            and skills have evaluated claimant's employability.  Carma 
 
            Mitchell opines that the work restrictions imposed by either 
 
            Dr. Blair or Dr. Cole excludes 87 percent to 91 percent of 
 
            the jobs that were available to claimant prior to the work 
 
            injury herein.  These figures were obtained from QUEST, a 
 
            computer software which utilizes the Dictionary of 
 
            Occupational Titles and supplements.  She stated that if 
 
            claimant were not able to stand for 6 out of 8 hours, there 
 
            would be no jobs available to him.  Mitchell also goes on to 
 
            state that the availability of the remaining jobs to 
 
            claimant are dependant upon claimant receiving extensive 
 
            vocational assistance in obtaining employment contacts, 
 
            advice on personal appearance and assistance in filling out 
 
            applications.  Also, she stated that these remaining jobs 
 
            are those low functioning jobs that exist in a sheltered 
 
            workshop setting such as can and bottle sorting and sticking 
 
            labels on containers.  Unfortunately, these jobs are gener
 
            ally located in major metropolitan centers rather than 
 
            claimant's current residence.
 
            
 
                 Another vocational counselor, Daniel J. Frommelt, 
 
            retained by defendants, essentially agreed with Mitchell in 
 
            that there are few jobs available in the labor market to 
 
            claimant and that he would need special assistance to obtain 
 
            this employment.  Frommelt admitted in his January 31, 1992 
 
            report, with reference to locating available work, that 
 
            claimant is not capable of functioning effectively in a com
 
            petitive sense due to this work injury.  He then identified 
 
            various "openings" available to claimant in his area of res
 
            idence.  This evidence was objected to as not timely served 
 
            upon claimant.  However, once claimant waived objection to 
 
            the lateness of the January 31, 1992 report
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            from Frommelt under the guidelines of the hearing assignment 
 
            order, he cannot later on rely upon those guidelines to keep 
 
            out evidence related to the report.
 
            
 
                 However, although these openings were considered, they 
 
            failed to show that competitive, gainful employment is 
 
            available to claimant.  Only two employment possibilities 
 
            were shown.  The first was that of a junker.  However, the 
 
            counselor offered no projection as to the potential income 
 
            from this line of self employment.  Only the price paid per 
 
            ton was shown.  No attempt was made to refute claimant's 
 
            testimony that at most he can only earn $10 per day.  Far 
 
            below an amount needed to sustain himself.  The second open
 
            ing was a part-time job at the land fill sorting junk at 
 
            minimum wage. Whether or not this was one hour or 30 hours 
 
            per week is unknown.  This again fails to go forward to show 
 
            the availability of gainful employment to claimant.
 
            
 
                 Due primarily to the physician imposed work restric
 
            tions against heavy lifting combined with claimant's low 
 
            intellectual functioning, the work injury of June 17, 1987, 
 
            was a cause of a total loss of earning capacity.  Claimant 
 
            is odd-lot.  He has not returned to work and has made a rea
 
            sonable but unsuccessful effort to find suitable work within 
 
            the geographical area of his residence.  Claimant is only 
 
            able to perform services which are so limited in quality, 
 
            dependability or quantity that a reasonably stable market 
 
            for them does not exist.  Claimant is not employable in the 
 
            competitive labor market within the geographical area of 
 
            this residence.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 It was found the injury extended into the body as a 
 
            whole.  Generally, body as a whole injuries are those that 
 
            involve a loss or loss of use of more portions of the human 
 
            body than those specifically scheduled in Iowa Code sections 
 
            85.34(2)(a-t). In this agency's specialized expertise, the 
 
            medical term lower extremity includes more portions of the 
 
            body than the arm.  Also, a shoulder or hip joint impairment 
 
            is not a scheduled impairment simply because it impacts on 
 
            the arm or leg.  See Lauhoff Grain Co. v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 
 
            290 N.W.2d 348 (Iowa 1980); Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber 
 
            Co. 233 Iowa 758, 10 N.W.2d 569 (1943). 
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, 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).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 A physical impairment or restriction on work activity 
 
            may or may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, Feb. 28, 1985).
 
            
 
                 Although it was shown that claimant is capable of cer
 
            tain types of light duty work, claimant requested an award 
 
            of permanent total disability due to the so-called "odd-lot" 
 
            doctrine.  This doctrine is a procedural device designed to 
 
            shift the burden of proof with respect to employability to 
 
            the employer in certain factual situations.  Klein v. Furnas 
 
            Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986).  A worker 
 
            becomes an "odd-lot" employee when an injury makes the 
 
            worker incapable of obtaining employment in any well-known 
 
            branch of the labor market.  Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101, 105 (Iowa 1985).  An odd-lot worker can only 
 
            perform services that are so limited in quality, dependabil
 
            ity or quantity that a reasonably stable market for them 
 
            does not exist.  Id.
 
            
 
                 In Guyton, the Supreme Court held that under the 
 
            odd-lot doctrine, there is no presumption that merely 
 
            because the worker is physically able to do certain work, 
 
            such work is available.  When a worker makes a prima facie 
 
            case of total disability by producing substantial evidence 
 
            that the worker is not employable in the competitive labor 
 
            market, the burden to produce evidence shifts to the 
 
            employer.  If the employer fails to produce such evidence 
 
            and if the trier of fact finds that worker does fall in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Id. at 106.
 
            
 
                 In the case sub judice, claimant made a reasonable 
 
            effort to find suitable work and produced ample evidence of 
 
            his unemployability in the competitive labor market.  
 
            Defendants' evidence failed to show actual availability of 
 
            gainful employment to claimant.  The only jobs discussed 
 
            were evidence that claimant probably is odd-lot.  Therefore, 
 
            claimant shall be awarded permanent total disability bene
 
            fits accordingly.
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 100 percent or total loss of his earning capacity as 
 
            a result of the work injury.  Such a finding entitles 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant to permanent total disability benefits as a matter 
 
            of law under Iowa Code section 85.34(3) which consists of 
 
            weekly benefits indefinitely during the period of claimant's 
 
            disability.  Absent a change of condition, these benefits 
 
            will be paid during the rest of his life.  Certainly, if the 
 
            sheltered employment setting and extensive vocational assis
 
            tance changes claimant's employability prospects, this 
 
            agency is available to review the matter at a later date.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant permanent total 
 
            disability benefits at a rate of one hundred thirty-five and 
 
            19/l00 dollars ($135.19) per week indefinitely during the 
 
            period of his disability from June 17, 1987.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. William H. Habhab
 
            Attorney at Law
 
            1216-A Central Ave
 
            Fort Dodge, Iowa  50501
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1804
 
                                          Filed March 26, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FLOYD EARL MILLER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 913296
 
            UNITED ROOFING COMPANY, INC., :
 
                                          :    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.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1804
 
            
 
                 Non-precedential, permanent total disability benefits 
 
            awarded to mildly retarded worker who was rendered 
 
            unemployable in the competitive labor market by an inability 
 
            to perform heavy lifting work.  He was found to be odd-lot.
 
                 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHARLOTTE NICHOLS,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 913298,
 
            DES MOINES COMMUNITY SCHOOL          921018, 939136
 
            DISTRICT, 
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed November 22, 1991, is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street, Suite 16
 
            Des Moines, IA  50312
 
            
 
            Ms. Patricia J. Martin
 
            Ms. Elizabeth Gregg Kennedy
 
            Attorney at Law
 
            100 Court Ave., Suite 600
 
            Des Moines, IA  50309
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                       5-1402.30; 5-1801.1; 5-1802;                 
 
                                       5-1803; 5-4000 
 
                                       Filed April 26, 1993
 
                                       Byron K. Orton
 
                       
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHARLOTTE NICHOLS,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 913298,
 
            DES MOINES COMMUNITY SCHOOL          921018, 939136
 
            DISTRICT, 
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1402.30; 5-1801.1; 5-1802; 5-1803
 
            
 
                 Claimant was found entitled to temporary total 
 
            disability benefits from December 19, 1988, through January 
 
            3, 1989, as a result of a work-related neck injury on 
 
            December 7, 1988.  Her treating physician released her to 
 
            return to work without restrictions on January 3, 1989.
 
            
 
                 Claimant found entitled to healing period benefits from 
 
            June 26, 1989, through May 8, 1991, and 15 weeks of 
 
            permanent partial disability benefits commencing May 9, 
 
            1991, for work-related bilateral carpal tunnel syndrome.
 
            
 
                 Claimant found entitled to temporary total disability 
 
            benefits from November 16, 1989, through May 21, 1990, for 
 
            work-related thoracic outlet syndrome.  However, because 
 
            claimant was also drawing healing period benefits during 
 
            this time, she cannot simultaneously receive temporary total 
 
            disability and healing period benefits.  Both benefits are 
 
            intended to compensate for loss of income.
 
            
 
            5-4000
 
            
 
                 Generally, penalty benefits are not awarded where there 
 
            is a legitimate dispute on either causation or the extent of 
 
            impairment.  Just v. HyGrade Food Products Corp., IV Iowa 
 
            Industrial Commissioner Report 190 (App. Decn. 1984).  Where 
 
            a claim is "fairly debatable," defendants are entitled to 
 
            argue their position, whether the debate concerns a matter 
 
            of fact or law.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's claims in this case were fairly debatable 
 
            and consequently penalty benefits were not awarded.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLOTTE NICHOLS,            :
 
                                          :
 
                 Claimant,                :         File Nos. 913298
 
                                          :                   921018
 
            vs.                           :                   939136
 
                                          :
 
            DES MOINES COMMUNITY SCHOOL   :      A R B I T R A T I O N
 
            DISTRICT,                     :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Charlotte Ann Nichols, claimant, against Des 
 
            Moines Community School District, employer, and Employers 
 
            Mutual Insurance Company, insurance carrier, to recover 
 
            benefits under the Iowa Workers' Compensation Act.  In file 
 
            number 913298, claimant alleges an injury to her neck on 
 
            December 7, 1988; in file number 921018, claimant alleges a 
 
            cumulative trauma to her wrists culminating in surgery on 
 
            June 26, 1989; and, in file number 939136, claimant alleges 
 
            a thoracic outlet syndrome commencing November 16, 1989.
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on October 30, 1991, in Des 
 
            Moines, Iowa.  The record was considered fully submitted at 
 
            the close of the hearing.  The parties requested and were 
 
            given leave to file briefs by November 6, 1991.  The record 
 
            in this case consists of claimant's testimony and joint 
 
            exhibits 1A(1-6), 1B(1-6) and 2.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report/order and statement 
 
            of the parties, the following stipulations were made:
 
            
 
                 1.  Claimant sustained bilateral carpal tunnel syndrome 
 
            on June 26, 1989, and was taken off work until May 8, 1991;
 
            
 
                 2.  Claimant is entitled to 15 weeks of permanent 
 
            partial disability benefits as a result of her bilateral 
 
            carpal tunnel syndrome commencing May 9, 1991, at the rate 
 
            of $226.42 per week;
 
            
 
                 3.  Claimant incurred a neck injury on December 7, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            1988, and was off work from December 19, 1988 through 
 
            January 4, 1989;
 
            
 
                 4.  Claimant returned to work with employer for three 
 
            days commencing January 4, 1989; and,
 
            
 
                 5.  Claimant is married with two exemptions, and had 
 
            gross weekly earnings of $366.00 per week.
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant's December 19, 1988, neck injury 
 
            continues and, if so, whether claimant is entitled to a 
 
            running award of temporary total disability benefits;
 
            
 
                 2.  Whether claimant sustained work-related thoracic 
 
            outlet injury on November 16, 1989, which arose out of and 
 
            in the course of employment with employer;
 
            
 
                 3.  Whether claimant's alleged injury on November 16, 
 
            1989, is a cause of temporary disability and, if so, the 
 
            extent thereof;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27; and,
 
            
 
                 5.  Whether penalty benefits under Iowa Code section 
 
            86.13 should be awarded to claimant.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on December 11, 1939, and completed 
 
            the ninth grade of school.  At all times pertinent herein, 
 
            she has been married with adult children.  She worked at 
 
            various times as a waitress, laundress, presser and 
 
            assembler.  Claimant began her employment with Des Moines 
 
            Independent Community School District in March of 1980 and 
 
            last worked on January 6, 1989 (exhibit 6).  Claimant has 
 
            received long-term disability benefits from the Des Moines 
 
            Independent Community School District since January 7, 1989.  
 
            She receives a monthly check of $796.00.
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            on November 13, 1976, claimant was involved in a rear end 
 
            automobile collision.  On December 11, 1976, she underwent a 
 
            neurological evaluation by Robert A. Hayne, M.D.  Her 
 
            complaints were referable to pain in her neck region, 
 
            weakness in her arms and mild aching in her upper 
 
            extremities.  The examination was entirely within normal 
 
            limits.  X-rays of the cervical spine taken on December 11, 
 
            1976, showed no abnormalities.  A diagnosis of mild neck 
 
            strain was made (exhibit 1(A)(1), page 1).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Being dissatisfied with Dr. Hayne's assessment, 
 
            claimant conferred with David B. McClain, D.O., who 
 
            hospitalized her at Des Moines General Hospital from May 2 
 
            through May 8, 1977.  She was seen in consultation by Wade 
 
            S. Brantley, D.O.  At this time, she had complaints of low 
 
            back pain, and right cervical pain with radiation over the 
 
            right shoulder and into the right arm causing some numbness 
 
            of the small and ring fingers of the right hand.  Cervical 
 
            spine and chest x-rays were normal, but lumbar spine x-rays 
 
            showed disc degeneration at L-5 through S-1.  Diagnoses of 
 
            lumbar strain/sprain and possible radiculopathy of the 
 
            brachial plexus of the right were made (exhibit 1(A)(2), 
 
            pages 7-8).
 
            
 
                 On February 7, 1989, claimant was seen in the emergency 
 
            room with complaints of pain, numbness and swelling in her 
 
            right hand.  She was diagnosed with acute tenosynovitis of 
 
            the right wrist and treated with medication (exhibit 
 
            1(A)(2), page 9).
 
            
 
                 Claimant was hospitalized from October 5, 1980 through 
 
            November 6, 1980, to undergo physical therapy for relief of 
 
            back pain as a result of a fall while climbing stairs at 
 
            work.  Claimant was treated with traction, ultrasound and 
 
            medication.  X-rays of the lumbosacral spine, cervical spine 
 
            and ribs were within normal limits.  An EMG study showed 
 
            right ulnar neuropathy with nerve denervation and problems 
 
            with conduction along the right median nerve.  Manipulative 
 
            therapy was commenced and claimant's symptoms subsided 
 
            (exhibit 1(A)(2), pages 10-12).
 
            
 
                 On November 9, 1981, claimant saw Dr. Hayne for 
 
            complaints referable to right-sided pain.  Dr. Hayne 
 
            reported, "It would appear that Mrs. Nichols's [sic] 
 
            symptomatology can be mainly attributed to a lumbar and 
 
            cervical strain.  There appears to be a functional overlay 
 
            to her symptomatology."  (Exhibit 1(A)(1), pages 2-3).
 
            
 
                 On May 13, 1985, claimant fell while getting into a 
 
            bus.  A neurological examination was performed by Thomas A. 
 
            Carlstrom, M.D., on June 25, 1985.  At this time, claimant 
 
            complained of pain in her back, neck, shoulders, knee, 
 
            hands, elbows, headaches, pain in the chest and hips, 
 
            tingling in the feet and the right side of the face and 
 
            head.  She had x-rays taken of her elbow, shoulder and neck 
 
            and these were normal.  Upon examination, she had pain in 
 
            her neck with any motion but nearly full range of motions 
 
            present.  Dr. Carlstrom felt that the neurological 
 
            examination was normal.  He felt she was suffering from 
 
            mechanical back and neck pain and arranged for physical 
 
            therapy.  When reevaluated on September 3, 1985, she 
 
            complained of low back pain as well as neck pain.  Dr. 
 
            Carlstrom, "I would think that a future job should include 
 
            no heavy lifting or heavy exertion, and should exclude 
 
            prolonged sitting or standing, and particularly should 
 
            exclude truck or bus driving."  (Exhibit 1(A)(1), page 5).  
 
            On follow-up examination, October 8, 1985, claimant reported 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            the same symptoms as previously.  At this time, Dr. 
 
            Carlstrom advised a vigorous rehabilitation program and gave 
 
            claimant a permanent impairment rating of 3-4 percent of the 
 
            body as a whole (exhibit 1(A)(1), pages 4-6).
 
            
 
                 Claimant presented to the emergency room of Des Moines 
 
            General Hospital on May 11, 1988, complaining of back pain 
 
            of two weeks' duration.  She saw William Eischen, D.O., who 
 
            diagnosed lumbar radiculitis (exhibit 1(A)(2), pages 13-15).  
 
            She was referred by her family physician, Martin S. 
 
            Rosenfeld, D.O., to M. J. Stein, D.O., for a neurological 
 
            evaluation on May 16, 1988.  Dr. Stein found no objective 
 
            neurological signs (exhibit 1(A)(2), page 16-17).  On May 
 
            19, 1988, claimant commenced physical therapy treatment at 
 
            Southridge Medical Services which continued until August 19, 
 
            1988 (exhibit 1(A)(3), pages 19-29).
 
            
 
                 Dr. Rosenfeld referred claimant to William Stanley, 
 
            D.O., for evaluation of possible thoracic outlet syndrome.  
 
            She was seen on August 8, 1988, and presented with pain in 
 
            her neck and right shoulder radiating down the posterior 
 
            aspect of the right arm and into the right fifth finger.  
 
            She performed an elevated arm stress test which exaggerated 
 
            her symptoms.  She had tenderness in the right 
 
            supraclavicular area near the thoracic outlet.  Dr. Stanley 
 
            diagnosed right thoracic outlet syndrome and recommended 
 
            exercises.  A chest and cervical spine x-ray was taken and 
 
            were both normal with no evidence of any cervical rib.  An 
 
            earlier EMG was also normal.  A final examination with Dr. 
 
            Stanley was conducted on January 17, 1989.  Claimant's right 
 
            arm symptoms persisted, but she was encouraged to pursue 
 
            non-operative treatment (exhibit 1(A)(6), pages 35-38).
 
            
 
                 On December 7, 1988, claimant was injured at work.  
 
            While sitting in the driver's seat of the school bus, an 
 
            adult developmentally disabled student tripped while running 
 
            up the stairwell of the bus and fell on her striking her 
 
            right side in the rib, neck and shoulder area.  Claimant 
 
            filed an accident report the next day.  She continued to 
 
            work and did not see a physician until December 19, 1988, 
 
            when she saw Dante R. Toriello, D.O.  Thoracic spine x-rays 
 
            were taken and showed mild narrowing of the T9-10 and T10-11 
 
            disc interspaces with minimal sclerosis of adjacent bone 
 
            ends.  Cervical spine x-rays were normal (exhibit 1(B)(1), 
 
            page 49).  Dr. Toriello took claimant off work until January 
 
            3, 1989, when he released her without restrictions (exhibit 
 
            1(B)(1), page 53).  Dr. Toriello's progress notes indicate 
 
            that claimant worked one-half day on January 6, 1989, and 
 
            not thereafter (exhibit 1(B)(1), page 43).  Claimant 
 
            continued to see Dr. Toriello until February 7, 1989, when 
 
            employer removed her from his care (exhibit 1(B)(1), page 
 
            66).  Employer then sent claimant to Don Green, M.D., who 
 
            referred her to David J. Boarini, M.D., neurological 
 
            surgeon.  Dr. Boarini saw claimant on February 27, 1989, for 
 
            complaints of right arm, neck and shoulder pain.  She 
 
            related that these symptoms have persisted for many years.  
 
            Dr. Boarini noted that, "She split the midline to tuning 
 
            fork testing which clearly indicates this is a functional 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            problem."  Because of her longstanding myofascial neck and 
 
            shoulder pain, normal neurologic examination and normal 
 
            x-rays, a bone scan and repeat EMG was ordered.  Prior to 
 
            receiving the result of these tests, Dr. Boarini released 
 
            claimant to return to work on March 7, 1989, without any 
 
            work restrictions.  The bone scan taken on March 29, 1989, 
 
            was essentially normal showing minimal degenerative 
 
            abnormality in the fifth lumbar vertebra.  EMG studies taken 
 
            on March 30, 1989, showed a mild to moderate right carpal 
 
            tunnel syndrome and normal right upper extremity needle 
 
            examination (exhibit 1(B)(2), pages 73-76).
 
            
 
                 Claimant was referred by her attorney to Alexander 
 
            Matthews, M.D., for evaluation on April 17, 1989.  Dr. 
 
            Matthews reported that her clinical picture showed severe 
 
            bilateral thoracic outlet compression.  He recommended 
 
            surgical decompression of the thoracic outlets by 
 
            transaxillary resection of her first ribs.  Claimant 
 
            declined surgery pending a second opinion and a visit to 
 
            Robert C. Jones, M.D., regarding her carpal tunnel problem 
 
            (exhibit 1(B)(3), page 79).
 
            
 
                 Claimant initially saw Dr. Jones on May 4, 1989.  
 
            Progress notes dated May 26, 1989, indicate that she has had 
 
            carpal tunnel syndrome since 1985.  Dr. Jones indicated that 
 
            it is medically reasonable to relate her carpal tunnel 
 
            syndrome to her bus driving.  However, he did not know 
 
            precisely what relation her December 1988 injury had with 
 
            respect to this.  He indicated that it is reasonable to 
 
            conclude that her December 7, 1988, injury resulted in a 
 
            cervical strain type of injury, or that her carpal tunnel 
 
            syndrome refers pain up her arm into her neck.  An EMG of 
 
            the left arm was performed and showed left carpal tunnel 
 
            syndrome.  On June 26, 1989, Dr. Jones performed a right 
 
            carpal tunnel release.  He then referred claimant back to 
 
            Dr. Matthews regarding her thoracic outlet syndrome (exhibit 
 
            1(B)(4), pages 90-115).
 
            
 
                 On November 16, 1989, Dr. Matthews performed 
 
            transaxillary resection of the right first rib.  He was 
 
            assisted by Robert O. Thompson, M.D.  On January 17, 1990, 
 
            claimant's right hand grip was reported good and her Roos 
 
            test on the right was negative.  Claimant's care was 
 
            transferred to Dr. Thompson due to Dr. Matthews' retirement.  
 
            Follow-up examination were conducted in February, March, 
 
            April and May, 1990.  On May 21, 1990, Dr. Thompson reported 
 
            that, "Her range of motion is excellent and she has good 
 
            strength in both hands. . . . from the standpoint of her 
 
            thoracic outlet syndrome I think she has made a full 
 
            recovery."  (Exhibit 1(B)(3), page 82).
 
            
 
                 On October 18, 1990, claimant underwent left carpal 
 
            tunnel release.  Dr. Jones performed the surgery.  On July 
 
            10, 1991, Dr. Jones reported to claimant's attorney, "As 
 
            stated previously in 1989, I believe Mrs. Nichols' bilateral 
 
            carpal tunnel syndromes are related to her employment as a 
 
            bus driver."  (Exhibit 1(B)(4), page 123).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that she became dissatisfied with 
 
            Dr. Thompson's services and assessment of her condition and 
 
            on April 3, 1991, sought a second opinion from David Smith, 
 
            M.D.  Claimant presented with numerous complaints including 
 
            bilateral pain and tingling in her hands and arms with pain 
 
            and numbness in the right arm and shoulder.  She also 
 
            complained of occipital headaches, pain in the neck, 
 
            shoulder, shoulder blade, chest, upper arm, hand, and face.  
 
            She alleged numbness in her fingers, hand and arm on the 
 
            right and some paresthesias in the left hand.  After 
 
            conducting a physical examination, Dr. Smith's impression 
 
            was a mild form of thoracic outlet syndrome which, in his 
 
            opinion, should be fairly well tolerated.  He advised her to 
 
            refrain from any activity which causes her to work with her 
 
            hands overhead or perform repeated or repetitious activities 
 
            and avoid lifting heavy weights.  She was seen for a 
 
            follow-up examination on May 7, 1991, and she stated that 
 
            her symptoms had returned.  Dr. Smith diagnosed recurrent 
 
            right thoracic outlet syndrome and recommended no bus 
 
            driving and alternative employment (exhibit 1(B)(5), pages 
 
            124-127).
 
            
 
                                conclusions of law
 
            
 
                 At the hearing, defendants admitted liability for 
 
            claimant's bilateral carpal tunnel syndrome.  The parties 
 
            stipulated that, in file number 921018, claimant is entitled 
 
            to healing period benefits from June 26, 1989 through May 8, 
 
            1991, and 15 weeks (500 X 3%) of permanent partial 
 
            disability benefits commencing May 9, 1991.  However, the 
 
            parties stipulated to an incorrect weekly compensation rate.  
 
            Claimant's gross weekly earnings on June 26, 1989, were 
 
            $366.00.  She was married and entitled to two exemptions.  
 
            According to the July 1, 1988, Guide to Iowa Workers' 
 
            Compensation Claim Handling rate book, claimant's rate of 
 
            weekly compensation is $232.22 rather than $226.42 
 
            stipulated to by the parties.
 
            
 
                 Defendants also agreed to pay the following medical 
 
            bills:
 
            
 
                 Dante Toriello, M.D.                $   815.00
 
                 Neuro-Associates, P.C.                  938.00
 
                 Iowa Methodist Medical Center           275.00
 
                 Des Moines General Hospital             132.00
 
                 Orthopaedic Services, Inc.               78.00
 
                 Pathology Laboratory, P.C.               95.00
 
                 Iowa Lutheran Hospital                   79.57
 
                 Dahl's Pharmacy                          30.02
 
                 Mercy Hospital Medical Center         6,452.56
 
                 Mercy Medical Center (5/19/89)          836.00
 
                 Mercy Medical Center (6/2/89)           263.00
 
                 Mercy Medical Center (6/26/89)        1,114.46
 
                 Total                               $11,108.61
 
            
 
                 Defendants dispute that claimant sustained permanent 
 
            injuries to her neck or thoracic outlet area as a result of 
 
            injuries on December 7, 1988 (file no. 913298) and November 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            16, 1989 (file no. 939136).
 
            
 
                 In file number 913298, claimant requests temporary 
 
            total disability benefits from December 19, 1988 through 
 
            January 3, 1989, and from January 7, 1989, to the present 
 
            and continuing.  Claimant does not request permanent partial 
 
            disability benefits as to her neck injury because she is 
 
            still under treatment for this condition.
 
            
 
                 In file number 939136, claimant requests a running 
 
            award of temporary total disability benefits commencing 
 
            November 16, 1989, to the present and continuing.  Claimant 
 
            does not request permanent benefits at this time because she 
 
            is still being treated for thoracic outlet syndrome.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of December 
 
            7, 1988 (neck) and November 16, 1989 (thoracic outlet 
 
            syndrome) are causally related to the disability on which 
 
            she now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 
 
            Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
            (1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 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).
 
            
 
                 The record clearly demonstrates that claimant has a 
 
            long history of neck problems, right hand complaints, 
 
            right-sided pain and back pain.  As early as November 13, 
 
            1976, claimant complained of neck pain and arm weakness 
 
            after being involved in a motor vehicle accident.  She was 
 
            diagnosed with mild neck strain.  In 1980, claimant fell 
 
            while climbing stairs and hurt her neck and back.  When seen 
 
            by Jerome G. Bashara, M.D., on July 21, 1981, she complained 
 
            of pain, numbness and tingling in the back of her neck and 
 
            into her right upper extremity as well as back pain.  On 
 
            March 15, 1982, claimant underwent surgery due to ruptured 
 
            discs at the L4-5 and L5-S1 levels.  Dr. Bashara indicated 
 
            in a deposition taken on February 18, 1983, that claimant's 
 
            neck complaints are probably related to her low back 
 
            problems.  However, it was his opinion that she did not have 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            a significant organic problem in her neck and that her 
 
            symptoms were at most a strain (joint exhibit 2).  In May 
 
            1985, claimant fell while getting into a bus and was 
 
            diagnosed with mechanical back and neck pain.  On April 24, 
 
            1988, claimant was hit by a heavy door and stumbled.  She 
 
            presented to physical therapy on May 19, 1988, with 
 
            complaints of right lower back pain and right neck and 
 
            shoulder pain.  Claimant was in physical therapy for these 
 
            complaints through August 19, 1988, with minimal improvement 
 
            (exhibit 1(A)(3), pages 19-30).
 
            
 
                 With claimant's long history of neck problems, Dr. 
 
            Jones nevertheless stated on May 30, 1989, that, "It is also 
 
            reasonable that she sustained a cervical strain type of 
 
            injury from this recent injury.  Her carpal tunnel can 
 
            sometimes refer pain up the arm and neck and this could be 
 
            playing a role in the continuation of her neck problem."  
 
            (Exhibit 1(B)(4), page 102).
 
            
 
                 However, cervical spine x-rays taken on December 19, 
 
            1988, at the request of Dr. Toriello showed disc spaces 
 
            normally maintained and good range of motion of the neck, on 
 
            flexion and extension views (exhibit 1(B)(1), page 49).  Dr. 
 
            Toriello released claimant to return to work without 
 
            restrictions on January 3, 1989 (exhibit 1(B)(1), page 53).  
 
            Claimant returned to work for three days and felt that her 
 
            symptoms were exacerbated by driving a bus and did not 
 
            return to work after January 6, 1989.  When she returned to 
 
            Dr. Toriello on January 10, 1989, she did not complain of 
 
            neck pain.  She did complain of pain through the frontal 
 
            chest, shoulders and between the scapulae (exhibit 1(B)(1), 
 
            page 43).  Her complaints on January 23, 1989, were also 
 
            referable to her right chest wall, shoulder and scapula.  
 
            She made no further mention of neck pain (exhibit 1(B)(1), 
 
            page 45).  On January 31, 1989, Dr. Toriello's progress 
 
            notes state that, "Neck doing very well."  (Exhibit 1(B)(1), 
 
            page 45).  On February 7, 1989, Dr. Toriello noted, "Pain 
 
            thru neck & rt shoulder has been worse in past few days.  
 
            Etiology unknown, no falls or injury.  Ribs also bothering 
 
            more again."  (Exhibit 1(B)(1), page 46).
 
            
 
                 Claimant's initial visit with Dr. Boarini on February 
 
            27, 1989, revealed a near normal range of motion in the neck 
 
            with a possible slight decrease in flexion-extension.  Dr. 
 
            Boarini indicated claimant has no neurologic abnormality and 
 
            no abnormality on x-ray.  He released her to return to work 
 
            on March 7, 1989, with a diagnosis of myofascial neck pain 
 
            (exhibit 1(B)(2), page 74).  A final examination by Dr. 
 
            Boarini on May 6, 1991, revealed normal range of motion in 
 
            the neck and shoulders with no evidence of atrophy of 
 
            fasciculation in any extremity.  Dr. Boarini indicated that, 
 
            "I don't think the patient had any significant neck injury.  
 
            She has clearly chronic myofascial pain with some strong 
 
            functional overtones. . . . I would find no basis for 
 
            assigning a permanent partial impairment for any neck 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            problems, nor due to the injury she sustained in 1989."  
 
            (Exhibit 1(B)(2), pages 77-78).
 
            
 
                 After carefully considering the total evidence, the 
 
            undersigned concludes that on December 7, 1988, claimant 
 
            suffered an exacerbation of a neck injury and was off work 
 
            for this condition from December 19, 1988 through January 3, 
 
            1989.  At that time, she was released to return to work by 
 
            Dr. Toriello without restrictions.  Claimant worked three 
 
            days and then took herself off work.  She felt that her 
 
            symptoms of hand, shoulder and chest pain were exacerbated 
 
            by her work activity.  Therefore, in file number 913298, 
 
            claimant is entitled to temporary total disability benefits 
 
            from December 19, 1988 through January 3, 1989.
 
            
 
                 Defendants dispute that claimant sustained an injury on 
 
            November 16, 1989 (file number 939136) resulting in thoracic 
 
            outlet syndrome.  Claimant's treatment for thoracic outlet 
 
            syndrome was provided by Dr. Matthews and his associate Dr. 
 
            Thompson.  Claimant underwent transaxillary resection of the 
 
            right first rib on November 16, 1989.  On November 24, 1989, 
 
            post-operative notes state that, "The patient is doing well.  
 
            The operative site is well-healed.  The Roos test is 
 
            negative and her grip is strong."  A notation dated December 
 
            19, 1989, states that, "The patient has improved 
 
            considerably.  Her grip is now strong on the right and the 
 
            Roos test is entirely negative."  On May 21, 1990, progress 
 
            notes indicate that:
 
            
 
                 Charlotte returns today, her wound is fine, her 
 
                 numbness has decreased in both hands.  Her Roos 
 
                 test is negative.  The patient is doing well from 
 
                 the standpoint of the decompression of her 
 
                 thoracic syndrome. . . . She feels she has made a 
 
                 lot of improvement . . . .  Her range of motion is 
 
                 excellent and she has good strength in both hands. 
 
                 . . . I have told her that I am going to write to 
 
                 Principal Financial & tell them that from the 
 
                 standpoint of her thoracic outlet syndrome I think 
 
                 she has made a full recovery. . . .
 
            
 
            (Exhibit 1(B)(3), pages 79-89)
 
            
 
                 After carefully considering the total evidence, the 
 
            undersigned concludes that, in file number 939136, claimant 
 
            is entitled to temporary total disability benefits from 
 
            November 16, 1989 through May 21, 1990, when her treating 
 
            surgeon indicated that she had obtained maximum medical 
 
            improvement.
 
            
 
                 Defendants dispute that claimant's thoracic outlet 
 
            syndrome is causally related to her work with employer.  
 
            However, the uncontroverted medical evidence from claimant's 
 
            treating surgeon, Dr. Matthews, states that, "I do believe 
 
            that Mrs. Nichols' thoracic outlet compression syndrome is 
 
            causally related to her bus driving."  (Exhibit 1(B)(3), 
 
            page 83).  While Dr. Boarini stated that, "Her thoracic 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            outlet syndrome surgery was of little benefit, and it is not 
 
            clear that she, in fact, had a symptomatically significant 
 
            thoracic outlet problem," he rendered no opinion as to 
 
            whether this problem arose out of or in the course of 
 
            claimant's employment.  Dr. Jones expressed no opinion in 
 
            this regard either.  Therefore, the only opinion rendered is 
 
            from claimant's treating surgeon.  Since such is 
 
            uncontroverted, it is entitled to significant weight and 
 
            consideration.
 
            
 
                 Since all of claimant's injuries are found to be 
 
            causally related to her employment with employer, defendants 
 
            are liable for her medical bills generated by such 
 
            treatment.  These include:
 
            
 
                 Alexander Matthews, M.D.              $ 1,575.00
 
                 Medical Center Anesthesiologists           23.10
 
                 Guy Stines, M.D.                          450.00
 
                 Des Moines Anesthesiologists, P.C.        594.00
 
                 Rehabilitation Equipment, Inc.            288.60
 
                 Central Iowa Orthopaedics                 180.00
 
                 Manual Therapy Center                      52.50
 
                 Mercy Medical Center                    4,239.10
 
                 Total                                 $ 7,402.30
 
            
 
                 The final issue for resolution involves the question of 
 
            whether claimant is entitled to penalty benefits under Iowa 
 
            Code section 86.13 (1991).  Iowa Code section 86.13 
 
            provides, in pertinent part, as follows:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Where a claim is "fairly debatable," defendants are 
 
            entitled to argue their position, whether the debate 
 
            concerns a matter of law or fact.  Generally, penalty 
 
            benefits are not awarded where there is a legitimate dispute 
 
            on either the causation or the extent of impairment.  Just 
 
            v. HyGrade Food Products Corp., IV Iowa Industrial 
 
            Commissioner Report 190 (App. Decn. 1984).  If it is alleged 
 
            that an employer wrongfully withholds weekly compensation 
 
            benefits from a claimant, claimant must establish that the 
 
            benefits were withheld unreasonably or terminated 
 
            unreasonably in order for the claimant to receive additional 
 
            benefits under section 86.13.  Curtis v. Swift Indep. 
 
            Packing, IV Iowa Industrial Commissioner Report 88, 93 
 
            (1984).  If there are no contradictions in the claimant's 
 
            claim, then a penalty will be assessed.  Willis v. Ruan 
 
            Transp. Corp., IV Iowa Industrial Commissioner Report 395, 
 
            396 (1984) (The doctors' reports and the claimant's 
 
            statements regarding the injury and its connection to an 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            incident at work are consistent.  Withholding benefits in 
 
            this instance was found to be unreasonable and a penalty was 
 
            assessed to the healing period benefits.  Employer was given 
 
            the benefit of the doubt as to whether the injury caused a 
 
            permanent impairment due to claimant's preexisting back 
 
            complaints.); Peterman v. Am. Freight Sys., File No. 747931 
 
            Slip Op. at 3-4 (Iowa Industrial Comm'r Arb. August 10, 
 
            1988).
 
            
 
                 In view of claimant's long history of orthopaedic 
 
            complaints and frequent doctoring for numerous aches and 
 
            pains and nonwork-related injuries, her claims are fairly 
 
            debatable and legitimately caused defendants to question 
 
            whether such injuries arose out of and in the course of her 
 
            employment with employer and, if so, the extent of her 
 
            impairments, if any.  Therefore, it is determined that 
 
            claimant is not entitled to penalty benefits under Iowa Code 
 
            section 86.13(4).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 913298:
 
            
 
                 That defendants pay to claimant two point two eight six 
 
            (2.286) weeks of temporary total disability benefits at the 
 
            rate of two hundred thirty-two and 22/100 dollars ($232.22) 
 
            per week (July 1, 1988 rate book) for the period December 
 
            19, 1988 through January 3, 1989.
 
            
 
                 In file number 921018:
 
            
 
                 That defendants pay to claimant ninety-seven point four 
 
            two nine (97.429) weeks of healing period benefits at the 
 
            rate of two hundred thirty-two and 22/100 dollars ($232.22) 
 
            per week (July 1, 1988 rate book) for the period June 26, 
 
            1989 through May 8, 1991.
 
            
 
                 That defendants pay to claimant fifteen (15) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred thirty-two and 22/100 dollars ($232.22) per week 
 
            commencing May 9, 1991.
 
            
 
                 In file number 939136:
 
            
 
                 That defendants pay to claimant twenty-six point seven 
 
            one four (26.714) weeks of temporary total disability 
 
            benefits at the rate of two hundred thirty-three and 17/100 
 
            dollars ($233.17) per week (July 1, 1989 rate book) for the 
 
            period November 16, 1989 through May 21, 1990.
 
            
 
                 Since claimant will be receiving healing period 
 
            benefits from June 26, 1989 through May 8, 1991, she cannot 
 
            at the same time receive temporary total disability benefits 
 
            because both temporary total disability and healing period 
 
            benefits are intended to replace lost income and to receive 
 
            them simultaneously would be a double recovery windfall.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant is entitled to recover medical benefits under 
 
            Iowa Code section 85.27 for treatment received related to 
 
            her neck, bilateral carpal tunnel and thoracic outlet 
 
            syndrome.  Defendants are to pay all outstanding medical 
 
            expenses not previously paid.
 
            
 
                 That defendants pay claimant accrued amounts in a lump 
 
            sum.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports in each 
 
            file as required by this agency pursuant to rule 343 IAC 
 
            3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl, III
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Elizabeth Gregg Kennedy
 
            Attorney at Law
 
            100 Court Avenue, Suite 600
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
            Page   1
 
            
 
                           5-1402.30; 5-1801.1
 
                           5-1802; 5-1803; 5-4000
 
                           Filed November 22, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLOTTE NICHOLS,            :
 
                                          :
 
                 Claimant,                :         File Nos. 913298
 
                                          :                   921018
 
            vs.                           :                   939136
 
                                          :
 
            DES MOINES COMMUNITY SCHOOL   :      A R B I T R A T I O N
 
            DISTRICT,                     :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.30; 5-1801.1; 5-1802; 5-1803
 
            
 
                 Claimant was found entitled to temporary total 
 
            disability benefits from December 19, 1988, through January 
 
            3, 1989, as a result of a work-related neck injury on 
 
            December 7, 1988.  Her treating physician released her to 
 
            return to work without restrictions on January 3, 1989.
 
            
 
                 Claimant found entitled to healing period benefits from 
 
            June 26, 1989, through May 8, 1991, and 15 weeks of 
 
            permanent partial disability benefits commencing May 9, 
 
            1991, for work-related bilateral carpal tunnel syndrome.
 
            
 
                 Claimant found entitled to temporary total disability 
 
            benefits from November 16, 1989, through May 21, 1990, for 
 
            work-related thoracic outlet syndrome.  However, because 
 
            claimant was also drawing healing period benefits during 
 
            this time, she cannot simultaneously receive temporary total 
 
            disability and healing period benefits.  Both benefits are 
 
            intended to compensate for loss of income.
 
            
 
            5-4000
 
            
 
                 Generally, penalty benefits are not awarded where there 
 
            is a legitimate dispute on either causation or the extent of 
 
            impairment.  Just v. HyGrade Food Products Corp., IV Iowa 
 
            Industrial Commissioner Report 190 (App. Decn. 1984).  Where 
 
            a claim is "fairly debatable," defendants are entitled to 
 
            argue their position, whether the debate concerns a matter 
 
            of fact or law.
 
            
 
                 Claimant's claims in this case were fairly debatable 
 
            and consequently penalty benefits were not awarded.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed December 18, 1990
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAMARIE VISSER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :   File No. 913299 & 809069
 
            ROLSCREEN COMPANY,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYER'S MUTUAL COS.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Extent of disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANE UNGLESBEE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913334
 
            HAWKEYE GLOVE MANUFACTURING,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Jane 
 
            Unglesbee, claimant, against Hawkeye Glove Manufacturing, 
 
            employer, and Royal Insurance Company, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on March 
 
            17, 1989.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on May 12, 1992, 
 
            in Fort Dodge, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Also present and testifying were 
 
            Sherry Lynn Glover, Marilyn Olson and Diane McGuire.  The 
 
            documentary evidence identified in the record consists of 
 
            claimant's exhibits 1 through 15 and defendants' exhibits 1, 
 
            8, 11, 12, and 15.  
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            by the parties on May 12, 1992, the following issues have 
 
            been presented for resolution:
 
            
 
                 1.  The extent of claimant's entitlement to weekly 
 
            compensation for temporary total disability or healing 
 
            period benefits;
 
            
 
                 2.  The extent of claimant's entitlement to weekly 
 
            compensation for permanent disability benefits;
 
            
 
                 3.  The type of permanent disability benefits; and
 
            
 
                 4.  The commencement date for permanent partial 
 
            disability benefits, in the event such benefits are awarded.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on March 21, 1940, and completed the 
 
            twelfth grade of school.  Claimant worked 25 years for 
 
            employer as a production line worker.  She also worked 
 
            part-time from 1975 through 1976 as a motel housekeeper and 
 
            from 1984 through April 1989 as a motel laundress.  Claimant 
 
            voluntarily quit her job with employer in April 1989 
 
            allegedly at the request of Robert J. Weatherwax, M.D., her 
 
            treating surgeon.  
 
            
 
                 The medical evidence of record reveals that claimant 
 
            was seen at Central Iowa Orthopaedics by R.J. Weatherwax, 
 
            M.D., on January 28, 1989, with complaints of bilateral 
 
            shoulder pain as well as neck and upper back pain.  Right 
 
            shoulder x-rays were negative but neck x-rays showed 
 
            degenerative disc disease with foraminal encroachment and 
 
            facet arthritis at C-5, 6 and C7.  On March 16, 1989, she 
 
            was seen by Rodney E. Johnson, M.D., at the request of Dr. 
 
            Weatherwax.  Dr. Johnson noted that x-rays showed 
 
            significant narrowing of the spinal canal at C5, 6 and C6, 7 
 
            levels, as well as foraminal encroachment at those levels.  
 
            He diagnosed cervical spondylomyelopathy and cervical spinal 
 
            stenosis.  EMG's were performed but showed no radicular 
 
            pattern to her symptoms.  However, due to her shoulder 
 
            complaints, an arthrogram and referral back to Dr. 
 
            Weatherwax was recommended (defendants' exhibit 1, pages 1-2 
 
            and claimant's exhibit 12, pages 7-8).  
 
            
 
                 The arthrogram of claimant's right shoulder revealed a 
 
            tendon tear with leakage of dye up above the shoulder.  On 
 
            May 11, 1989, Dr. Weatherwax admitted claimant to Iowa 
 
            Lutheran Hospital where he performed right shoulder 
 
            decompression surgery with an anterior acromioplasty and 
 
            resection of the coracoacromial ligament and repair of the 
 
            rotator cuff tendon (cl. ex. 12).  
 
            
 
                 Despite surgery, claimant continued to have pain in her 
 
            right shoulder.  She also had persistent symptoms in her 
 
            left shoulder and evidence of bilateral carpal tunnel 
 
            syndrome.  On September 26, 1989, Dr. Weatherwax reported 
 
            that claimant had nearly full passive range of motion and 
 
            full forward flexion and extension.  She lacked about 10 
 
            degrees of full abduction.  He noted that her strength was 
 
            improving but she still had some mild discomfort with 
 
            circular motions.  He reported, "She has decided because of 
 
            her mild carpal tunnel symptoms to not return to the 
 
            production line at Hawkeye Glove and instead is seeking 
 
            employment elsewhere."  At this time, Dr. Weatherwax felt 
 
            she had gained enough improvement to be released to work 
 
            with restrictions including no overhead work above the 
 
            horizontal and no lifting greater than 10 pounds above the 
 
            waist.  He felt that these restrictions were not permanent 
 
            and would improve with further shoulder rehabilitation (def. 
 
            ex. 1, p. 9).  
 
            
 
                 Claimant continued to have left shoulder symptoms and 
 
            in November 1989 Dr. Weatherwax ordered an arthrogram.  The 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            rotator cuff was not torn on the left side and her symptoms 
 
            were attributable to impingement syndrome.  On November 21, 
 
            1989, Dr. Weatherwax gave claimant a 22 percent upper limb 
 
            impairment rating as to her right shoulder (def. ex. 1, pp. 
 
            12-13).
 
            
 
                 On March 16, 1990, claimant presented to Dr. Weatherwax 
 
            with bilateral shoulder discomfort and symptoms of bilateral 
 
            carpal tunnel syndrome.  She received an injection in her 
 
            right shoulder and night splints for carpal tunnel.  On 
 
            February 3, 1990, an arthrogram was taken of her right 
 
            shoulder.  It revealed that the rotator cuff had a massive 
 
            re-rupture.  Dr. Weatherwax felt this warranted a 
 
            re-exploration of the right shoulder and re-repair of the 
 
            rotator cuff, excising the distal clavicle in addition to 
 
            excising more of the tissue that might be impinging.  He 
 
            also felt that he could take care of the right carpal tunnel 
 
            at the same time (def. ex. 1, pp. 15-20).
 
            
 
                 On May 24, 1990, claimant underwent re-repair of the 
 
            right rotator cuff tendon and right carpal tunnel release 
 
            (def. ex. 1, p. 21).
 
            
 
                 On September 25, 1990, Dr. Weatherwax reported that 
 
            claimant had a small twinge of right shoulder pain, but 
 
            excellent passive and active motion.  Her carpal tunnel 
 
            syndrome was noted to be relieved on the right.  She 
 
            continued to be symptomatic in the left shoulder and left 
 
            carpal tunnel.  On October 18, 1990, Dr. Weatherwax 
 
            performed decompression of the left shoulder with excision 
 
            of the distal clavicle and left carpal tunnel release (def. 
 
            ex. 1, pp. 21-27).
 
            
 
                 On March 12, 1991, Dr. Weatherwax reported that 
 
            claimant had full active passive motion on the left with 
 
            some discomfort in both shoulders, right more than left, and 
 
            a symptomatic left wrist.  He indicated that she had reached 
 
            maximum medical benefit and he released her back to full 
 
            duty, but recommended that she not obtain a job in a 
 
            production plant where there is constant repetitive 
 
            activities.  He gave her a 17 percent impairment rating to 
 
            the body as a whole (def. ex. 1, p. 29).  
 
            
 
                 Repeat EMG studies were performed in September 1991 
 
            which showed carpal tunnel syndrome on the left.  Dr. 
 
            Weatherwax suggested surgical decompression of the carpal 
 
            tunnel and re-exploration (def. ex. 1, p. 30).  Dr. 
 
            Weatherwax testified in a deposition on March 23, 1992, that 
 
            the second carpal tunnel release on the left was performed 
 
            around October 1, 1991.  He felt that the repeat surgery 
 
            would not add to or increase the previous impairment 
 
            ratings.  He further testified that claimant should avoid 
 
            any factory type positions which involve production line 
 
            work; work which requires arm extension; work involving 
 
            repetitive overhead arm use; and work requiring repetitive 
 
            lifting of more than 15 pounds (cl. ex. 14).
 
            
 
                 Claimant was referred by her attorney to Mary-Franklin 
 
            G. Paulus, M.D., orthopedic surgeon, for evaluation on 
 
            February 20, 1991.  Using goniometers, she measured 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's range of motion in her shoulders, elbows, wrists, 
 
            and hands and made permanent impairment ratings, which were 
 
            not converted to the body as a whole (cl. ex. 6).  
 
            
 
                 Dr. Weatherwax testified that his impairment rating 
 
            figures, as to shoulder impairment, would correlate somewhat 
 
            with those of Dr. Paulus.  He noted that none of the 
 
            procedures he performed on claimant would result in loss of 
 
            wrist motion or loss of grip strength and disputed Dr. 
 
            Paulus' findings in this regard (cl. ex. 14, pp. 29-33).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether claimant's 
 
            bilateral upper extremity injury is confined to her arms or 
 
            extends into the body as a whole.  
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory.  The statute conferring 
 
            this right can also fix the amount of compensation payable 
 
            for different specific injuries.  The employee is not 
 
            entitled to compensation except as the statute provides.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 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.
 
            
 
                 Even though a doctor assigns a permanent partial 
 
            impairment rating to an extremity and not to an arm or leg 
 
            or hip or shoulder, that assignment is not controlling in 
 
            determining whether the disability is properly rated as to a 
 
            scheduled member or to the body as a whole.  The statute 
 
            sets forth scheduled permanent partial disability 
 
            compensation for the loss or loss of use of an arm or of a 
 
            leg, not for the loss or loss of use of an upper extremity 
 
            or lower extremity.  Where an injury to a joint connecting 
 
            an extremity to the body as a whole is present, disability 
 
            in the form of actual impairment to the body as a whole also 
 
            must be present for the injury to be indusstified that the combination 
 
            of the three tendons is really a thick cuff over the top of 
 
            the ball of the shoulder joint and claimant had a hole or 
 
            tear in the cuff from chronic irritation and rubbing.  There 
 
            was complete detachment of the rotator cuff insertion.  This 
 
            was repaired on May 11, 1989.  Surgery involved taking out 
 
            the components in the shoulder that pinch on the cuff by 
 
            excising the ligament that crosses over the top of the 
 
            rotator cuff.  
 
            
 
                 In addition to right shoulder problems, claimant also 
 
            had some chronic impingement type symptoms.  The symptoms 
 
            were evident at the time of initial examination in February 
 
            1989.  Decompression surgery of the left shoulder was 
 
            performed which did not involve the rotator cuff tendon.  
 
            
 
                 Dr. Weatherwax testified: 
 
            
 
                    The right upper extremity -- first of all, I 
 
                 indicated that both shoulders had mild limitation 
 
                 of motion which resulted in three percent 
 
                 impairment to the right extremity and two percent 
 
                 impairment to the left upper extremity due to loss 
 
                 of motion; resection of the distal clavicle, which 
 
                 would be the ends of the collarbone through the 
 
                 joint, represents five percent upper impairment 
 
                 based on the American Academy of Orthopedic 
 
                 Surgeons' Guidelines; and further, that the right 
 
                 upper extremity had approximately 70 percent of 
 
                 normal strength which I rated as 12 percent 
 
                 impairment that -- even going back to 1990, I 
 
                 believe, and this equated to 20 percent upper 
 
                 extremity impairment on the right, and eight 
 
                 percent upper limb impairment on the left.  And as 
 
                 a whole person taking the AMA guides and using the 
 
                 conversion table of 20 would result in 17 percent 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 whole person impairment.
 
            
 
            (claimant's exhibit 14, pages 26-27)
 
            
 
                 Accordingly, claimant has met her burden of proof that 
 
            her upper extremity injuries extend beyond the scheduled 
 
            member and into the body as a whole.  Kellogg v. Shute and 
 
            Lewis Coal Company, 130 N.W.2d 667 (1964).  
 
            
 
                 The next issue to be determined is the extent of 
 
            entitlement to weekly compensation for temporary total 
 
            disability or healing period benefits.  Defendants argue 
 
            that claimant is entitled to intermittent healing period 
 
            benefits from April 10, 1989 through November 21, 1989; from 
 
            May 24, 1990 through March 21, 1991; and from October 1, 
 
            1991 through January 23, 1992.  Claimant argues that her 
 
            healing period has been continuous and ongoing and that she 
 
            has never reached maximum medical improvement.  
 
            
 
                 Healing period benefits may be characterized as that 
 
            period during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached.  Armstrong Tire & Rubber Co. 
 
            v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code section 85.34(1) (1991), the Kubli court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined.  Kubli, 312 N.W.2d at 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury.  Kubli, 312 N.W.2d 
 
            at 65.  When a permanent rating is given, it indicates that 
 
            the physician does not expect the claimant to improve and 
 
            this conclusion meets the criteria of Iowa Code section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Ia. Ct. App. 1984).  The finding of a 
 
            termination of healing period necessarily precludes the 
 
            discussion of the running award.  Hoskins v. Quaker Oats, 
 
            Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181, 
 
            185 (App. 1985).  Since the healing period contemplates an 
 
            inability to work, a healing period cannot start until 
 
            claimant leaves work.  This is true even if claimant is 
 
            experiencing symptoms on the job but does not leave work for 
 
            a variety of reasons.  Boyd v. Western Home, file number 
 
            890207 (Iowa Industrial Commissioner App. June 26, 1991).
 
            
 
                 In this instance, claimant began experiencing symptoms 
 
            in March 1989, however, she did not cease working due to her 
 
            symptoms until April 10, 1989.  On March 12, 1991, Dr. 
 
            Weatherwax felt that claimant had reached maximum medical 
 
            recovery from her bilateral surgeries and gave her a 
 
            permanent impairment rating.  Dr. Weatherwax testified that 
 
            when he examined claimant on March 12, 1991, she had nearly 
 
            full passive and active motion on the left with some 
 
            discomfort in both shoulders, the right more than the left 
 
            and a bothersome left wrist.  Electrical studies performed 
 
            in late 1991 revealed carpal tunnel nerve compression on the 
 
            left side either due to an incompletely released band or 
 
            scarring over the epineurium.  However, repeat carpal tunnel 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            surgery was carried out on October 1, 1991.  Dr. Weatherwax 
 
            testified that claimant would be ready for discharge and 
 
            available for work in a modified status seven weeks after 
 
            surgery.  She was last seen by him on October 8, 1991.  It 
 
            was his opinion that repeat carpal tunnel surgery on the 
 
            left would neither add to nor increase any of the previous 
 
            impairment ratings that he had given claimant (cl. ex. 14, 
 
            pp. 33-36).  
 
            
 
                 The greater weight of the evidence in this case 
 
            demonstrates that claimant's healing period began on April 
 
            10, 1989, and lasted until January 8, 1992, when Dr. 
 
            Weatherwax indicated that she would obtain maximum medical 
 
            improvement.  Claimant underwent right shoulder surgery on 
 
            May 11, 1989.  At the same time, she had impingement 
 
            symptoms in the left shoulder.  However, surgery was delayed 
 
            until improvement in her right shoulder symptoms.  On May 
 
            24, 1990, claimant underwent a re-repair of her right 
 
            shoulder and right carpal tunnel release.  The fact that her 
 
            shoulder had to be re-repaired indicates that she had not 
 
            reached maximum medical improvement or an ability to return 
 
            to work activity.  On October 18, 1990, claimant underwent 
 
            left shoulder surgery and left carpal tunnel release.  Her 
 
            left hand symptoms persisted and on October 1, 1991, she 
 
            underwent re-release of the left carpal tunnel.  Dr. 
 
            Weatherwax stated that a recuperation period of three months 
 
            was to be expected.  Therefore, it is determined by the 
 
            undersigned that claimant had one continuous injury from 
 
            April 10, 1989 through January 8, 1992, and is entitled to 
 
            143.429 weeks of healing period benefits at the weekly rate 
 
            of $105.58.  
 
            
 
                 The next issue to be determined is whether claimant is 
 
            permanently and totally disabled as a result of her injuries 
 
            either as an odd-lot employee or otherwise.  
 
            
 
                 In examining the odd-lot question, there are two cases 
 
            that offer guidance.  In Guyton v. Irving Jensen Co., 373 
 
            N.W.2d 101, 105 (Iowa 1985) the supreme court adopted the 
 
            odd-lot doctrine.  Under this doctrine, the court found that 
 
            a worker becomes an odd-lot employee when an injury makes 
 
            the worker incapable of obtaining employment in any well 
 
            known branch of the labor market.  An odd-lot worker is thus 
 
            totally disabled if the only services the worker can perform 
 
            are so limited in quality, dependability or quantity that a 
 
            reasonably stable market for them does not exist.  In Hainey 
 
            v. Protein Blender, 445 N.W.2d 398, 400 (Iowa App. 1989), 
 
            the court of appeals provided some explanation of the 
 
            Guyton, decision.  Among other things, the court concluded 
 
            that if a person has no reasonable prospect of steady 
 
            employment, that individual has no prospect of material 
 
            earning capacity.  Additionally, this standard contemplates 
 
            that the injured worker will take other steps to improve the 
 
            prospects for re-employment.  If the injured worker remains 
 
            unemployable even after this effort, then an odd-lot 
 
            designation can be made.  Guyton, 373 N.W.2d 105, Hainey, 
 
            445 N.W.2d 398, 400.
 
            
 
                 Ultimately, the application of the odd-lot doctrine 
 
            involves an allocation of the burden of production of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            evidence.  The supreme court found that the burden of 
 
            persuasion on the issue of industrial disability always 
 
            remains with the worker.  If the evidence of the degree of 
 
            obvious physical impairment coupled with other factors such 
 
            as claimant's mental capacity, education, training, or age 
 
            place claimant prima facie in the odd-lot category, the 
 
            burden should be on the employer to show that some kind of 
 
            suitable work is regularly and continuously available to the 
 
            claimant.  Guyton, 373 N.W.2d 105, Hainey, 445 N.W.2d 398, 
 
            400.
 
            
 
                 In this case, claimant has not made a prime facie 
 
            showing that she is totally disabled and cannot compete in 
 
            the labor market available to her.  Claimant's treating 
 
            surgeon does not agree that she is unable to work due to her 
 
            bilateral upper extremity impairments.  Dr. Weatherwax 
 
            testified that claimant should avoid activities requiring 
 
            repetitive reaching out horizontally and lifting more than 
 
            15 pounds (cl. ex. 14, pp. 37-40).  In fact, Dr. Weatherwax 
 
            approved four jobs consistent with claimant's restrictions 
 
            which were submitted to him by Diane McGuire, rehabilitation 
 
            specialist (def. ex. 8, p. 81).  
 
            
 
                 Claimant's attempt to find work has been minimal.  Her 
 
            cooperation with Mrs. McGuire has been less than 
 
            satisfactory.  In view of her pending social security 
 
            disability case and workers' compensation claim, her 
 
            motivation to be retrained or re-enter the employment market 
 
            is suspect.
 
            
 
                 Accordingly, the greater weight of the evidence does 
 
            not support a finding that claimant is an odd-lot employee.
 
            
 
                 Nevertheless, claimant has an impairment to the body as 
 
            a whole, and has sustained an industrial disability.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935) as 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 person.  The essence 
 
            of an earning capacity inquiry then, is not how much has the 
 
            claimant been functionally impaired, but whether that 
 
            impairment, in combination with the claimant's age; 
 
            education; work experience; pre and post injury wages; 
 
            motivation and ability to get a job within the given 
 
            restrictions, if any restrictions have been imposed; have 
 
            caused a loss of earning capacity.  Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Diederich, 219 Iowa 587, 593, 258 N.W. 899; Peterson v. 
 
            Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654, 658 (Appeal Decision 
 
            February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 
 
            3, State of Iowa Industrial Commissioner Decisions 529 
 
            (Appeal Decision March 26, 1985).
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            formulae which can be applied and then added up to determine 
 
            the degree of industrial disability to the body as a whole.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  Peterson, vol. 1, no. 3 
 
            State of Iowa Industrial Commissioner Decisions at 658; 
 
            Christensen, vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions at 535.
 
            
 
                 Claimant was born on March 21, 1940.  Claimant's 
 
            proximity to normal retirement age effects her industrial 
 
            disability.  Claimant is near the end of the normal work 
 
            life.  Compared to a younger worker with the same injury, 
 
            claimant has lost less future earning capacity as a result 
 
            of her injury.  McClellan v. Midwest Biscuit Co., file 
 
            number 802020 (Iowa Industrial Commissioner Appeal September 
 
            20, 1989).  Claimant graduated from  high school the last in 
 
            her class.  Her past work activity has been primarily 
 
            production line, factory type work.  Dr. Weatherwax 
 
            testified that claimant must avoid any factory type position 
 
            which involves production line work.  He also indicted that 
 
            she must avoid work which requires extension of her arms, 
 
            repetitive overhead use of her arms and repetitive lifting 
 
            in excess of 15 pounds.  These restrictions severely limit 
 
            claimant's access to the job market.  Achievement testing 
 
            indicates that claimant functions at the third grade reading 
 
            and mathematics level and at the sixth grade in the area of 
 
            written language.  Her aptitude scores were in the low range 
 
            with the exception of clerical perception which was within 
 
            the average range (cl. ex. 3).  Nevertheless, jobs were 
 
            identified by Mrs. McGuire and approved by Dr. Weatherwax 
 
            which would accommodate claimant's restrictions. 
 
            
 
                 It is apparent that claimant is foreclosed from 
 
            performing production type of employment for employer which 
 
            required the repetitive use of her hands, arms and 
 
            shoulders.  This results in a substantial industrial 
 
            disability loss.  Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe 
 
            Products Co., I Iowa Industrial Commissioner Report 282 
 
            (1984).
 
            
 
                 Claimant's motivation to be retrained or re-enter the 
 
            job market is questionable.  Her application for social 
 
            security disability benefits and the stated intention to 
 
            appeal the denial decision indicates that she is more 
 
            interested in being disabled then in finding real work in 
 
            the competitive labor market.  Since claimant has not made a 
 
            serious effort to be employed, there is a paucity of 
 
            evidence to determine what claimant can and cannot do within 
 
            the boundaries of her restrictions and disability.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit from a serious attempt to find work in the 
 
            competitive employment market.  Hild v. Natkin & Co., I Iowa 
 
            Industrial Commissioner Report 144 (Appeal Decision 1981).  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Employers are responsible for the reduction in earning 
 
            capacity caused by the injury.  They are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability and employing agency 
 
            expertise, it is determined that claimant has sustained a 50 
 
            percent industrial disability.  Claimant is entitled to 150 
 
            weeks of permanent partial disability benefits at the rate 
 
            of $105.58 per week commencing January 9, 1992.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred forty-three 
 
            point four two nine (143.429) weeks of healing period 
 
            benefits at the rate of one hundred five and 58/100 dollars 
 
            ($105.58) per week for the period from April 10, 1989, 
 
            through January 8, 1992.
 
            
 
                 That defendants pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred five and 58/100 dollars ($105.58) per week 
 
            commencing January 9, 1992.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert L. Ulstad
 
            Attorney at Law
 
            103 Central Ave
 
            PO Box 1678
 
            Fort Dodge, Iowa  50501 4001
 
            
 
            Mr. Paul Thune 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            218 6th Ave STE 300
 
            PO Box 9130
 
            Des Moines, Iowa  50306 9130
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      1803.1; 51802 4100; 51803
 
                      Filed May 27, 1992
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANE UNGLESBEE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913334
 
            HAWKEYE GLOVE MANUFACTURING,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803.1
 
            
 
                 Defendants argue that claimant's disability is to the 
 
            upper extremity only.  A shoulder injury is an injury to the 
 
            body as a whole if the injury affects the body side of the 
 
            shoulder joint.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 
 
            (Iowa 1986).  An arthrogram of claimant's right shoulder 
 
            revealed a rotator cuff tendon tear with leakage of dye up 
 
            above the shoulder.  Dr. Weatherwax, claimant's treating 
 
            surgeon, reported that the rotator cuff tendon actually is a 
 
            combination of three muscles coming from the back of the 
 
            shoulder blade and attaching on the very lateral or most 
 
            outward portion of the shoulder, on the ball of the 
 
            shoulder, coming underneath the tip of the shoulder blade.  
 
            He noted that claimant had a tear in the tendinous tissue 
 
            that attaches in the bone and forms a thick cuff over the 
 
            top of the ball of the shoulder joint.  There was complete 
 
            detachment of the rotator cuff insertion at the point where 
 
            the tendon attaches in the bone.
 
            
 
                 Claimant has met her burden of proof that her injury 
 
            extends beyond the upper extremity into the body as a whole.  
 
            Kellogg v. Shute and Lewis Coal Company, 130 N.W.2d 667 
 
            (1964).
 
            
 
            51802
 
            
 
                 Parties dispute the extent of claimant's healing 
 
            period.  Defendants argue that claimant's healing period was 
 
            interrupted after a determination by her treating surgeon 
 
            that she had reached maximum medical improvement.  The 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            record reveals that claimant underwent right rotator cuff 
 
            surgery on May 11, 1989; re-repair of the right rotator cuff 
 
            on May 24, 1990, due to a massive re-rupture; right carpal 
 
            tunnel release on May 24, 1990; left shoulder and left 
 
            carpal tunnel release on October 18, 1990; and re-repair of 
 
            the left carpal tunnel on October 1, 1991.  Claimant reached 
 
            final maximum medical improvement three months after her 
 
            last surgery.  The undersigned found that claimant had one 
 
            continuous injury for the period from April 10, 1989, when 
 
            she stopped working; through January 8, 1992, when her 
 
            treating surgeon determined she obtained maximum recovery.  
 
            
 
            4100
 
            
 
                 The greater weight of the medical evidence doe not 
 
            support claimant's contention that she is incapable of 
 
            obtaining employment in any well known branch of the labor 
 
            market.  A vocational rehabilitation specialist found jobs 
 
            in claimant's geographic area which Dr. Weatherwax, her 
 
            treating surgeon, felt that she would be able to perform.  
 
            Claimant resisted all attempts at vocational rehabilitation 
 
            and retraining and was more intent in pursuing social 
 
            security disability benefits and permanent total disability 
 
            for purposes of workers' compensation benefits.  Employer 
 
            demonstrated that some kind of suitable work was regularly 
 
            and continuously available to claimant, but she made no 
 
            attempt to return to work even on a trial basis.  Therefore, 
 
            the evidence does not support a finding that claimant is an 
 
            odd-lot employee.  Guyton v. Irving Jensen Co., 373 N.W.2d 
 
            101 (Iowa 1985); Hainey v. Protein Blender, 445 N.W.2d 398, 
 
            400 (Iowa App. 1989).
 
            
 
            51803
 
            
 
                 After careful consideration of all of the factors of 
 
            industrial disability including claimant's age (49-53); 
 
            education (high school graduate); past relevant work 
 
            (production line worker); restrictions (avoidance of work 
 
            which requires extension of arms, repetitive overhead use of 
 
            the arms and repetitive lifting of more than 15 pounds); an 
 
            inability to return to any type of factory position 
 
            involving production line work; motivation to return to the 
 
            competitive labor market; and loss of earning capacity; it 
 
            was determined that claimant sustained 50 percent permanent 
 
            partial disability.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JANE UNGLESBEE,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 913334
 
         HAWKEYE GLOVE MANUFACTURING,  :
 
                                       :   M O D I F I C A T I O N
 
              Employer,                :
 
                                       :            O F
 
         and                           :
 
                                       :       D E C I S I O N
 
         ROYAL INSURANCE,              :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         A decision was rendered in the above case on May 27, 1992.  
 
         Subsequently it was discovered that a computation error exists in 
 
         the last paragraph on page ten and in the second paragraph of the 
 
         order.
 
         Claimant was awarded 50 percent industrial disability.  This 
 
         translates to 250 weeks of permanent partial disability benefits 
 
         and not 150 weeks as erroneously stated in the decision and 
 
         order.
 
         THEREFORE, such is amended to read that claimant is entitled to 
 
         250 weeks of permanent partial disability benefits.
 
         Signed and filed this ____ day of May, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Robert L. Ulstad
 
         Attorney at Law
 
         103 Central Ave
 
         PO Box 1678
 
         Fort Dodge, Iowa  50501 4001
 
         
 
         Mr. Paul Thune 
 
         Attorney at Law
 
         218 6th Ave STE 300
 
         PO Box 9130
 
         Des Moines, Iowa  50306 9130
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROSE OLIVE MEEK,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913372
 
            FEDERAL RESERVE BANK          :
 
            OF CHICAGO,                   :
 
                                          :    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 Rose 
 
            Olive Meek, claimant, against Federal Reserve Bank of 
 
            Chicago, employer (hereinafter referred to as the Federal 
 
            Reserve), and Liberty Mutual Insurance Company, insurance 
 
            carrier, for workers' compensation benefits as a result of 
 
            an alleged injury on March 17, 1989.  On January 14, 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 con
 
            tested issues and stipulations which was approved and ac
 
            cepted 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 17, 1989, claimant received an injury 
 
            which arose out of and in the course of her employment with 
 
            the Federal Reserve.
 
            
 
                 2.  Claimant's entitlement to temporary total disabil
 
            ity or healing period benefits extends from March 18, 1989 
 
            through July 16, 1989.
 
            
 
                 3.  The injury was a cause of permanent disability, the 
 
            extent of which is in dispute.
 
            
 
                 4.  Permanent partial disability benefits shall begin 
 
            on July 17, 1989.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  Claimant's rate of weekly compensation is $275.82.
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for the Federal Reserve since 
 
            February 1976 and continues to do so at the present time.  
 
            Claimant's duties have always consisted of clerical work.  
 
            Initially, she was assigned to the mail cage but later she 
 
            was assigned to the research area.  Claimant was performing 
 
            her work in the research area at the time of the injury.  In 
 
            the research job, claimant was required to climb stairs at 
 
            times as much as twelve times per day, carrying heavy 
 
            computer printouts.  According to claimant's supervisor, 
 
            claimant is a dedicated, hard working employee and not a 
 
            complainer.  Due to restrictions after the work injury, 
 
            claimant is now assigned to a different job which has 
 
            reduced her need to climb stairs and to carry heavy 
 
            documents.  Claimant is now operating a computer and her 
 
            supervisor stated that claimant will perform almost all of 
 
            her work in the future at her desk.
 
            
 
                 On or about March 17, 1989, claimant injured her left 
 
            hip when she tripped and fell at work.  The injury was diag
 
            nosed as a subcapital fracture of the left hip.  Treatment 
 
            of this condition involved a surgical left hip bipolar re
 
            placement on March 18, 1989.  Claimant returned to light 
 
            duty on May 17, 1989 and to full duty on July 17, 1989.  
 
            Claimant's primary treating physician was an orthopedic 
 
            physician by the name of Paul K. Ho, M.D.
 
            
 
                 As a result of the work injury of March 17, 1989, 
 
            claimant has a 25 percent permanent partial impairment to 
 
            the body as a whole.  Also, claimant is permanently re
 
            stricted from activity consisting of limited walking and 
 
            standing and only moderate stair climbing.  Claimant must be 
 
            able to change positions frequently.  As the hip replacement 
 
            involved both the ball and socket of the hip joint, the in
 
            jury extended into the body as a whole and was not limited 
 
            to the left leg.  The finding of percentage of impairment 
 
            was based upon the opinion of Martin Rosenfeld, D.O., an 
 
            orthopedic surgeon, who evaluated claimant in September 
 
            1989.  Dr. Ho also rated claimant.  Dr. Ho felt that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant suffered a 43 percent permanent impairment to the 
 
            left leg.  This rating was not used in the finding of im
 
            pairment because Dr. Ho did not convert the rating to the 
 
            body as a whole.  As the injury extended into the body as a 
 
            whole, only a rating of the body as a whole could be used.   
 
            The findings relating to claimant's restrictions are based 
 
            upon claimant's testimony, the views of Dr. Ho and the views 
 
            of Dr. Rosenfeld.
 
            
 
                 Claimant had no symptoms in the left hip prior to the 
 
            work injury.  There is evidence of a slight arthritis of 
 
            both hips but the main problem was on the right not the left 
 
            hip.  In any event, the left hip was not giving claimant 
 
            problems prior to the injury.  Claimant currently suffers 
 
            from hip and leg pain along with pain in the left knee.  
 
            This knee pain is also causally connected to the work injury 
 
            as the hip replacement lighted up or aggravated the prior 
 
            existing arthritis of the knee.  The causal connection of 
 
            the knee problems to the work injury is supported by the un
 
            controverted views of Dr. Ho.
 
            
 
                 As a result of the work injury of March 17, 1989, and 
 
            the resulting permanent partial impairment, claimant has 
 
            suffered only a 15 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was ex
 
            cellent and she had no functional impairments or ascertain
 
            able disabilities.  Claimant was able to fully perform phys
 
            ical tasks involving standing and sitting and frequent 
 
            climbing of stairs.  Due to the physical limitations, 
 
            claimant's medical condition prevents her from returning to 
 
            her former job.
 
            
 
                 However, claimant's loss of earning capacity is mild.  
 
            Claimant's employer has accommodated for the disability by 
 
            providing a suitable and stable job which appears to have 
 
            more potential for advancement than her old job.  Claimant 
 
            has a GED education.  Claimant's past employment outside the 
 
            Federal Reserve consists of a sales clerk and waitress.  
 
            Claimant has considerable motivation to remain employed.  It 
 
            is found claimant has lost some ability to work overtime and 
 
            to earn overtime pay.  Claimant worked a considerable amount 
 
            of overtime before the work injury to the extent that on one 
 
            occasion she received an award for doing so.  Now, she 
 
            rarely works beyond the eight hour period due to aches and 
 
            pains from her work injury.
 
            
 
                                conclusions of law
 
            
 
                 The evidence demonstrated that the injury is not con
 
            fined to the leg.  Consequently, this injury constitutes a 
 
            permanent impairment to the body as a whole because it in
 
            volves a loss or loss of use of more portions of the human 
 
            body than those specifically scheduled in Iowa Code sections 
 
            85.34(2)(a)-(t).  See Farmland Foods, Inc. v. Ten Eyck, 
 
            Court of Appeals Decision filed January 29, 1986; Blacksmith 
 
            v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Alm v. 
 
            Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 
 
            569 (1943).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 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 perma
 
            nent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member dis
 
            abilities, 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 earn
 
            ing 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).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 It is noted that there was evidence submitted as to an 
 
            alleged change in claimant's lifestyle as a result of the 
 
            disability.  However, workers' compensation statutes are 
 
            only designed to compensate for a loss of earning capacity 
 
            and not in an industrial disability case such as the one 
 
            presented by claimant.  There is no provision for compensa
 
            tion for changes in lifestyle.
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 15 percent loss of earning capacity as a result 
 
            of her work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 75 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(u), 
 
            which is 15 percent of 500 weeks, the maximum allowable to 
 
            the body as a whole in that subsection.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred seventy-five and 82/100 dollars ($275.82) per 
 
            week from July 17, 1989.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits as stipulated by the parties in the prehearing 
 
            report.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this _____ day of April, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Donald F Starr
 
            Attorney at Law
 
            3911 Ingersoll  2nd Flr
 
            Des Moines IA 50312
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Mr Joseph A Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed April 15, 1991
 
                      Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROSE OLIVE MEEK,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913372
 
            FEDERAL RESERVE BANK          :
 
            OF CHICAGO,                   :
 
                                          :    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 disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY GRYLLES,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 913535
 
            ERICKSON DISPLAY,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Judy 
 
            Grylles against her employer, Erickson Display, and its 
 
            insurance carrier, Liberty Mutual Insurance Company, based 
 
            upon an injury that occurred on February 25, 1989.  The only 
 
            issue for determination is the claimant's entitlement to 
 
            compensation for permanent partial disability.
 
            
 
                 The case was heard at Des Moines, Iowa on September 4, 
 
            1991.  The evidence consists of testimony from Judy Grylles, 
 
            Chuck Bartholomew and Tom Goldfain.  The record also 
 
            contains joint exhibits 1 through 5.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Judy Grylles is a 42-year-old woman who graduated from 
 
            Lincoln High School in 1966.  She completed airline 
 
            stewardess school in 1967, but never became employed as a 
 
            stewardess.  She recently completed a basic data entry 
 
            course at the Des Moines Area Community College.
 
            
 
                 Over the years, Judy has performed several different 
 
            types of work.  She has been a hotel maid, waitress and mail 
 
            clerk.  She placed the price on records and cassettes and 
 
            filled orders in a music company.  She worked at a 
 
            commercial laundry.  Most of her employment has been in the 
 
            manufacturing or assembly line work.  She is skilled in 
 
            operating industrial machines such as a punch press and 
 
            other metalworking machines.  She has operated forklifts.
 
            
 
                 Judy was employed by Erickson Display for approximately 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            one year, left for other work and then returned to Erickson 
 
            in 1983.  She remains employed by Erickson at this time.  
 
            Erickson Display is in the business of fabricating and 
 
            assembling metal display racks such as those used in retail 
 
            stores for the sale of bread, batteries or other small 
 
            merchandise.
 
            
 
                 Judy initially worked on the assembly line and also 
 
            operated machines in the press room.  The assembly jobs 
 
            normally require considerable twisting and turning, but 
 
            likewise permit some moving about.  The weights handled do 
 
            not normally exceed five pounds.  The press room work is 
 
            likewise not heavy, but does not permit much moving around.  
 
            The work of an assembler is a pay group 2 job.  Judy next 
 
            became a material handler, a pay group 3 job.  She operated 
 
            a forklift and a pry lift.  After approximately one year in 
 
            that position, Judy became a warehouse helper, a pay group 4 
 
            job.  Judy worked primarily on the receiving side of the 
 
            warehouse where she was responsible for unloading materials 
 
            which were delivered to the plant.  Many of the materials 
 
            were unloaded from semis using a forklift.  She had to 
 
            manually handle 55-gallon drums of paint.  Some deliveries 
 
            were handled manually.  She was required to handle as much 
 
            as 75 pounds at a time (exhibit 3, pages 58 and 59).  When 
 
            the receiving side of the warehouse was not busy, she 
 
            assisted the shipping side of the warehouse.  According to 
 
            Judy, the shipping side required less manual handling of 
 
            materials.
 
            
 
                 Judy was injured while manually unloading boxes of 
 
            bolts which had been received from a supplier.  She reported 
 
            the injury and was sent to the company physician who in turn 
 
            referred her to orthopaedic surgeon William R. Boulden, M.D.  
 
            After conservative treatment proved ineffective, appropriate 
 
            diagnostic tests showed Judy to have a herniated lumbar disc 
 
            on the left side of her spine at the L5-S1 level.  The disc 
 
            was surgically excised on April 14, 1989 (exhibit 1, page 
 
            50).  Following an appropriate period for recuperation, she 
 
            returned to work with restrictions.  The maximum amount she 
 
            was allowed to lift was 45 pounds.  She was also restricted 
 
            in pulling, pushing and carrying.  She was further 
 
            restricted against repetitive bending, stooping, climbing, 
 
            kneeling or squatting (exhibit 1, page 15).  She was 
 
            subsequently restricted to working only eight-hour days, 
 
            five days per week (exhibit 1, page 13).
 
            
 
                 Judy resumed work, but had significant residual 
 
            complaints.  It was eventually determined by Dr. Boulden 
 
            that her symptoms were the result of spinal instability and 
 
            that fusion surgery was a reasonable option (exhibit 1, page 
 
            4).  Judy followed the recommendation and fusion surgery was 
 
            performed on October 12, 1990 (exhibit 1, page 45).
 
            
 
                 After an appropriate period for recuperation and work 
 
            conditioning, Judy was released to return to work effective 
 
            April 22, 1991.  Her lifting restriction was placed at 70 
 
            pounds maximum and 30 pounds for repetitive lifting.  From 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            the record it is not possible to ascertain whether the 
 
            restrictions regarding repetitive activity and eight-hour 
 
            work days remain in effect.  In view of the condition of 
 
            claimant's spine, it would certainly be prudent to follow 
 
            those restrictions in order to reduce the chance of further 
 
            injury.  Claimant has been rated as having a 15 percent 
 
            permanent impairment (exhibit 1, pages 1 and 8).  The 
 
            assessment of this case as made by Dr. Boulden and physical 
 
            therapist Thomas W. Bower is found to be correct.
 
            
 
                 Following the first surgery, Judy worked briefly 
 
            performing limited functions as a warehouse helper.  After 
 
            approximately one week, she was moved to an assembler 
 
            position.  The group 4 warehouse helper position paid $8.73 
 
            per hour at the time of injury, but the assembly position 
 
            was a group 2 position which paid only $7.20 per hour.  Judy 
 
            remained in that position until undergoing the second 
 
            surgery.  Following recuperation from the fusion surgery, 
 
            Judy returned to the assembly position.  At the present 
 
            time, she is at the highest pay level in group 2, namely 
 
            $7.63 per hour.  The highest pay rate for group 4 positions 
 
            is currently $9.27 per hour.  Since Judy was at the highest 
 
            level for group 4 positions when she was injured, it is 
 
            reasonable to assume that she would be earning $9.27 per 
 
            hour if she were still working as a warehouse helper.  Based 
 
            upon the foregoing, it is found that her actual earnings 
 
            have been reduced by nearly 18 percent as a result of the 
 
            physical restrictions which have been imposed as a result of 
 
            her injury.  Her access to higher paying jobs has been 
 
            reduced.  She has been strongly advised to not return to the 
 
            warehouse helper job (exhibit 1, pages 8 and 16).
 
            
 
                 Judy continues to have residual leg pain, particularly 
 
            with prolonged standing or sitting.  She appears well 
 
            motivated and is not a complainer.  Judy has not bid on any 
 
            other jobs since the fusion surgery was performed.  She has 
 
            not sought work with any other employer.  It would not be 
 
            expected that she could obtain any employment elsewhere 
 
            which would be more advantageous to her than her current 
 
            position.  The record does not reflect the frequency that 
 
            positions with higher pay grades are available for bidding.  
 
            Based upon testimony from Chuck Bartholomew and Tom 
 
            Goldfain, it appears as though several of those higher 
 
            paying positions would not be appropriate for Judy in view 
 
            of the condition of her back.  Some might be marginally 
 
            appropriate, but would present a risk of further injury.  
 
            From the standpoint of preserving her back, it is certainly 
 
            prudent for Judy to refrain from bidding on jobs which would 
 
            present a greater risk of further injury.  A certain amount 
 
            of uncertainty exists in any employment setting, but it 
 
            appears as though Judy's work with this employer is 
 
            reasonably stable and secure.  It is found that Judy's 
 
            current level of earnings accurately reflects her earning 
 
            capacity.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 The only issue for determination is the extent of 
 
            permanent partial disability which is to be awarded to Judy 
 
            Grylles.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  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.
 
            
 
                 When all the appropriate factors of industrial 
 
            disability are considered, it is determined that Judy has 
 
            experienced a 20 percent loss of earning capacity as a 
 
            result of the February 25, 1989 injury.  She is therefore 
 
            entitled to receive 100 weeks of compensation for permanent 
 
            partial disability payable at the stipulated rate of $222.42 
 
            per week.  Defendants are entitled to full credit for the 78 
 
            and 6/7 weeks of compensation previously paid as related at 
 
            the time of hearing.  The remaining 21 and 1/7 weeks shall 
 
            be paid in weekly payments following entry of this decision.  
 
            Fifty-nine and three-sevenths weeks of permanent partial 
 
            disability compensation had been paid prior to the second 
 
            term of healing period which ran from October 12, 1990 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            through April 21, 1991, a span of 27 and 3/7 weeks.  Since 
 
            78 and 6/7 weeks of permanent partial disability 
 
            compensation had been paid at the time of hearing, 19 and 
 
            3/7 weeks of compensation for permanent partial disability 
 
            were paid subsequent to the second healing period.  That 
 
            makes the payments current as of September 4, 1991.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Judy 
 
            Grylles twenty-one and one-seventh (21 1/7) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of two hundred twenty-two and 42/100 dollars 
 
            ($222.42) per week payable commencing September 5, 1991.
 
            
 
                 IT IS FURTHER ORDERED that each party shall pay its own 
 
            costs incurred in this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Jon K. Hoffmann
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.40; 5-1803
 
                           Filed September 5, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JUDY GRYLLES,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 913535
 
            ERICKSON DISPLAY,   :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.40; 5-1803
 
            Forty-two-year-old woman with high school education, a work 
 
            history consisting primarily of medium physical labor, a 
 
            single level spinal fusion, 15 percent permanent impairment 
 
            and 18 percent reduction in actual earnings with a stable 
 
            employer awarded 20 percent permanent partial disability.