Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            THOMAS W. RYAN,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 915458
 
            UNITED PARCEL SERVICE,   :
 
                      :        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 April 16, 1990, is affirmed as modified below and is 
 
            adopted as the final agency action in this case, with the 
 
            following additional analysis:
 
            Claimant was a part-time employee, earning less than the 
 
            usual weekly earnings of a regular full time adult laborer 
 
            in the line of industry in which he was employed when 
 
            injured.  Regardless of the fact that claimant had been so 
 
            employed less than 12 months, Iowa Code section 85.36(10) is 
 
            applicable.  Claimant's gross earnings are therefore 
 
            calculated based on one-fiftieth of the total earnings which 
 
            the employee would have earned from all employment during 
 
            the twelve calendar months immediately preceding the injury.  
 
            The record reflects that claimant's total earnings from all 
 
            employment during the twelve months preceding his injury 
 
            (his employment with defendant employer and from a summer 
 
            job with a lawn service) equaled approximately $529.19.  
 
            Divided by 50, this yields an average gross weekly wage of 
 
            $10.58.  However, Iowa Code section 85.34(2) provides a 
 
            minimum rate of a full-time student under the age of 
 
            twenty-five for permanent partial disability benefits.  It 
 
            was stipulated at the hearing that claimant was a full-time 
 
            student.  Claimant was under the age of twenty-five at the 
 
            time he was injured.  Under Iowa Code section 85.34(2), 
 
            claimant's weekly benefit amount for permanent partial 
 
            disability benefits is equal to the weekly benefit amount of 
 
            a person whose gross weekly earnings are thirty-five percent 
 
            of the statewide average weekly wage.  Thus, claimant's 
 
            gross weekly wage for permanent partial disability as the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            result of an injury occurring in March of 1989 would be 
 
            $116.00.  (The state wide average weekly wage during this 
 
            time was $333.01).  Claimant, single with one exemption, 
 
            would be entitled to a rate of $77.35 for his permanent 
 
            partial disability benefits.  Under Iowa Code section 85.37, 
 
            claimant's healing period rate is not affected by his status 
 
            as a full-time student.  Thus, claimant's healing period 
 
            benefits shall be paid at the rate of $10.17.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript. 
 
            Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 3rd Avenue
 
            PO Box 1588
 
            Council Bluffs, Iowa 51502
 
            
 
            Mr. James E. Thorn
 
            Attorney at Law
 
            310 Kanesville Blvd.
 
            PO Box 398
 
            Council Bluffs, Iowa 51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      3002
 
                      Filed July 10, 1991
 
                      CLAIR R. CRAMER
 
                      MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            THOMAS W. RYAN,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 915458
 
            UNITED PARCEL SERVICE,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            3002
 
            Claimant was a college student injured shortly after 
 
            beginning employment with employer.  Claimant's rate 
 
            calculated by dividing his earnings from all sources over 
 
            the last 12 months by 50 (which yielded a gross weekly wage 
 
            of $10.58).  However, as a fulltime student under age 25, 
 
            under Iowa Code 85.34(2) claimant was entitled to a minimum 
 
            gross wage of 35 percent of the statewide average weekly 
 
            wage, which resulted in a rate of $77.35 for permanent 
 
            partial disability benefits.  Claimant's rate for healing 
 
            period benefits, which do not contain a minimum for fulltime 
 
            students, was $10.17.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS W. RYAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 915458
 
         UNITED PARCEL SERVICE,
 
                                               A R B I T R A T I 0 N
 
               Employer,
 
                                               D E C I S I 0 N
 
          and
 
         
 
          LIBERTY MUTUAL INSURANCE
 
          COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Thomas W. 
 
         Ryan, claimant, against United Parcel Service, employer and 
 
         Liberty Mutual Insurance Company, the insurance carrier, 
 
         defendants.  The case was heard by the undersigned in Council 
 
         Bluffs, Iowa on March 26, 1990.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of joint exhibits 1-32.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted 
 
         and approved on March 26, 1990, the issues presented by the 
 
         parties are:
 
         
 
              1. Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits; and,
 
         
 
              2. What is the appropriate rate to use for weekly benefits.
 
         
 
                                   STIPULATIONS
 
         
 
              Pursuant to the aforementioned prehearing report, the 
 
         parties entered into a number of stipulations.  The stipulations 
 
         are as follows:
 
         
 
         
 
         
 
         RYAN V. UNITED PARCEL SERVICE
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2. That claimant sustained an injury on March 29, 1989, 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3. That the alleged injury is a cause of temporary and 
 
         permanent disability;
 
         
 
              4. That the extent of entitlement to weekly compensation 
 
         for temporary total disability or healing period, if defendants 
 
         are liable for the injury, is stipulated to be from March 30, 
 
         1989 to March 1, 1990;
 
         
 
              5. That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability is stipulated to be 
 
         an industrial disability to the body as a whole with the 
 
         commencement date stipulated to be March 2, 1990;
 
         
 
              6. That all requested benefits pursuant to Iowa Code 
 
         section 85.27 have been or will be paid by defendants; and,
 
         
 
              7. That defendants paid claimant 48 1/7 weeks of 
 
         compensation at the rate of $10.17 per week prior to the hearing, 
 
         and three weeks of benefits at the rate of $77.35 per week.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is a 21 year old college student.  He is single 
 
         and currently enrolled at Iowa Western Community College.  
 
         Claimant is studying to become a clinical psychologist.  In 
 
         addition to his regular college courses, claimant has also 
 
         obtained a certificate as an emergency medical technician.
 
         
 
              Claimant testified he read a notice of employment on a 
 
         campus bulletin board regarding a part-time position at 
 
         defendant-employer.  According to claimant's testimony, he was to 
 
         be paid $8.00 per hour and he was to work from approximately 4:00 
 
         a.m. to 7:30 a.m. five days a week.  Claimant reported he began 
 
         his employment with defendant on March 25, 1989, and he was hired 
 
         to unload semitrailers and place parcels inside the warehouse.
 
         
 
              On the date of the work injury, claimant testified he 
 
         reported to work at 4:00 a.m.  He stated he was assigned to 
 
         unload trailers and that he was unloading a parcel from the top 
 
         shelf and he bent down.  While he bent down, an 8 to 12 pound 
 
         tire rim fell on claimant's lower back.  Claimant described the 
 
         sensation as if a nail had been put into his back.
 
         
 
         
 
         
 
         RYAN V. UNITED PARCEL SERVICE 
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Claimant stated he reported the incident to his supervisor, 
 
         Mike Bain, and claimant was later taken to the company physician, 
 
         Timothy Ranney, M.D. Medical evidence for claimant establishes 
 
         that:
 
         
 
              MILD LOSS OF SIGNAL INTENSITY IS PRESENT AT THE L4-5 AND 
 
              L5-SL LEVELS CONSISTENT WITH DEGENERATIVE DISC DISEASE.
 
              
 
              A SMALL CENTRAL HERNIATED DISC IS PRESENT AT THE L4-5 LEVEL.  
 
              THERE DOES NOT APPEAR TO BE ANY SIGNIFICANT NERVE ROOT 
 
              ENCROACHMENT.
 
              
 
              NO OTHER DIFFUSE OR FOCAL HERNIATION WAS DETECTED.
 
         
 
              Claimant testified he engaged in physical therapy, a work 
 
         hardening program and he had three caudal blocs to relieve his 
 
         pain.  Claimant testified he continued as a full time college 
 
         student subsequent to the date of his injury.
 
         
 
              On the date of the hearing, claimant indicated he was still 
 
         enrolled as a full time student and that his goal was to become a 
 
         clinical psychologist.  Claimant also stated he had not been 
 
         working 12 months prior to the date he started working for 
 
         defendant-employer and he had not worked since the date of his 
 
         injury.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         RYAN V. UNITED PARCEL SERVICE 
 
         Page 4
 
         
 
         
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985) ; Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any 
 
         sort of work to a claimant after he suffers his affliction may 
 
         justify an award of disability.  McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established he has a permanent functional 
 
         impairment.  Daniel L. McKinney, M.D., a treating neurological 
 
         surgeon, has written as of February 1, 1990:
 
         
 
              Tom Ryan recently underwent a myelogram at Bergan Mercy 
 
              Hospital.  This was considered to be within normal limits.  
 
              I believe that Mr. Ryan has suffered a lumbar strain.  I 
 
              believe that in the future he may have difficulty with work 
 
              which would require heavy lifting or frequent bending.  I 
 
              anticipate a permanent partial disability of the body as a 
 
              whole in the neighborhood of five to ten percent as a result 
 
              of his injury of March 29, 1989.
 
         
 
         (Exhibit 13)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RYAN V. UNITED PARCEL SERVICE 
 
         Page 5
 
         
 
         
 
              Dr. McKinney has also opined:  "Claimant's prognosis is 
 
         reasonably good though he may be symptomatic for some time to 
 
         come."
 
         
 
              Claimant has been prohibited from returning to employment 
 
         at defendant employer.  According to Michael Rennick, PT:
 
         
 
              Feasibility for Employment: Client is not feasible for 
 
              return to previous part-time position at United Parcel 
 
              Service.  Feasibility for other areas was not assessed in a 
 
              6-8 hour, 5-8 day trial period.
 
         
 
              Claimant maintains he has an industrial disability.  It is 
 
         true claimant has certain physical restrictions.  He is only 21 
 
         years old.  He has a lengthy work career ahead of him.  Claimant 
 
         is a full time student who earns good grades.  He intends to 
 
         become a clinical psychologist.  Such a position involves sitting 
 
         and some standing but very little lifting, bending, or twisting.  
 
         Given claimant's current restrictions, he should be able to work 
 
         within those restrictions as a psychologist.  Claimant's current 
 
         condition should not adversely affect his ability to obtain a 
 
         position as a psychologist, once claimant obtains his degree.  
 
         Claimant's condition may affect his ability to obtain other 
 
         part-time positions while he is in college.  Claimant is unable 
 
         to work for defendant-employer in Omaha since the Council Bluffs 
 
         facility is closing.  Claimant is also precluded from engaging in 
 
         other positions which involve lifting or bending and twisting.  
 
         These include positions in construction or landscaping which 
 
         traditionally pays more than other part-time positions in the 
 
         retail or fast food industry.  Claimant's earning capacity is 
 
         affected by his current condition.  His earnings are affected as 
 
         well.  It is the determination of the undersigned that claimant 
 
         has a permanent partial disability of 12 percent.
 
         
 
              The next issue to address is the appropriate rate to use in 
 
         calculating weekly benefits.  Defendants urge this deputy to 
 
         calculate claimant's rate of pay under Code section 85.36(10). In 
 
         support of its position, defendants cite Foster v. Plaza 
 
         Restaurant and Lounge, file no. 821588, Arbitration Decision 
 
         filed (February 27, 1989).
 
         
 
              The Foster case involved a part-time dishwasher who was 
 
         injured on the job.  The deputy industrial commissioner who heard 
 
         the case wrote:
 
         
 
              It can be reasonably urged that claimant's rate of 
 
              compensation should be determined under the provisions of 
 
              Code section 85.36(10).  The record also reflects, however, 
 
              that claimant was paid by the hour.  Accordingly, it could 
 
              be reasonably urged that claimant's rate of compensation 
 
              should be computed under the provisions of
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RYAN V. UNITED PARCEL SERVICE 
 
         Page 6
 
         
 
         
 
              Code section 85.36(6). Nothing in Code section 85.36 
 
              restricts subsections (1) through (9) to full-time 
 
              employment.  In fact, the definition of weekly earnings 
 
              contained in 85.36:states:
 
         
 
                 Weekly earnings means gross salary, wages or earnings of 
 
              an employee    to which such employee would have been 
 
              entitled had the employee worked the customary hours for the 
 
              full pay period in which the employee was injured, as 
 
              regularly .required by the employee's employer for the work 
 
              or employment for which the employee was employed, ... 
 
              [Emphasis added].
 
         
 
              It is clearly stated in the first paragraph of Code section 
 
              85.36 that the weekly rate of compensation should be based 
 
              upon the employee's customary earnings.  This agency has 
 
              recognized and followed that concept in cases where the rate 
 
              was determined under Code section 85.36(6) by excluding 
 
              weeks which were not representative of typical or customary 
 
              earnings.  Lewis v. Aalf's Manufacturing Co., I Iowa 
 
              Industrial Commissioner Report, 206, 207 (App. Decn. 1980); 
 
              Schotanus v. Command Hydraulics, Inc., I Iowa Industrial 
 
              Commissioner Report, 294, 298 (1981).
 
              
 
              It is well recognized that Code section 85.36(10) provides 
 
              an unrepresentative wage if it is applied to an employee who 
 
              has not been in the labor force for the full preceding 12 
 
              months.  Lawyer and Higgs,  Iowa Workers' Compensation Law 
 
              and Practice, section 12-8.  The gross weekly earnings when 
 
              computed under those circumstances are obviously only a 
 
              fraction of the customary earnings.  Code section 85.36(7) 
 
              provides a statutory exception to the 13-week rule provided 
 
              by section 85.36(6). The agency has ruled that where no 
 
              evidence is presented with regard to the hours of work the 
 
              employee would have earned if the employee had been employed 
 
              [sic] for the full 13 calendar weeks immediately preceding 
 
              the injury, the proper method of computing the gross weekly 
 
              earnings is to simply divide the total earnings by the 
 
              number of weeks actually worked.  Barker v. City Wide 
 
              Cartage, I Iowa Industrial Commissioner Report, 12, 15 (App. 
 
              Decn. 1980).
 
              
 
              The Iowa Supreme Court has consistently held that the 
 
              workers' compensation law be construed liberally to benefit 
 
              the injured employee and that its beneficent [sic] intent 
 
              should not be defeated by reading something into the statute 
 
              which is not there or by a narrow and strained construction.  
 
              Caterpillar Tractor Co.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RYAN V. UNITED PARCEL SERVICE 
 
         Page 7
 
         
 
         
 
              v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); Cedar Rapids 
 
              Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); 
 
              Disbrow v. Deering Imp. Co., 233 Iowa 380, 392, 9 N.W.2d 
 
              378, 384 (1943).. Any construction of section 85.36 which 
 
              provides a result that is inconsistent with the stated 
 
              intent, namely of basing the rate of compensation upon 
 
              customary earnings, is at an irreconcilable conflict with 
 
              the directives expressed by the Supreme Court.  The 
 
              undersigned is unable to come up with any rational 
 
              explanation with regard to why a part-time employee who has 
 
              recently entered the work force should have the rate of 
 
              compensation be based upon only a fraction of the customary 
 
              earnings while a full-time employee who has recently entered 
 
              the work force is compensated based upon the entire 
 
              customary earnings.  It could be urged that the beneficent 
 
              [sic] purpose of the workers' compensation statutes would be 
 
              served by applying whichever subsection of section 85.36 
 
              that provided the highest rate of compensation.  Such would 
 
              also, under some circumstances, however, provide a rate 
 
              which would be greatly in excess of a rate that would be 
 
              based upon the customary earnings.  The undersigned 
 
              concludes that the rate of compensation should be based upon 
 
              the employee's customary earnings as is stated in the first 
 
              unnumbered paragraph of code section 85.36.  When the 
 
              computation under one of the subparagraphs of 85.36 is 
 
              obviously in conflict with that stated intent, some 
 
              alteration must be made.  In this case, where the employee 
 
              was not in the work force for the full preceding 12 months, 
 
              and the occupation was not a seasonal occupation, the 
 
              customary earnings should be determined by dividing the 
 
              total earnings of the employee by the number of weeks that 
 
              the employee had worked prior to the injury.  This method of 
 
              computation is consistent with the agency precedent 
 
              established in Barker v. City Wide Cartage, I Iowa 
 
              Industrial Commissioner Report, 12, 15 (App. Decn. 1980).
 
         
 
              It is the determination of this deputy that the rationale 
 
         outlined in the Foster case will be followed in the instant 
 
         matter.  In order to determine the rate of compensation, the date 
 
         of injury must be established.  The parties, in their prehearing 
 
         report stipulated that the date of injury is March 29, 1989.  
 
         Claimant testified he started employment on March 25, 1989. it is 
 
         unclear how many hours he worked during that week.  There is some 
 
         indication claimant worked 8.14 hours that week.  He earned $8.00 
 
         per hour.  Gross earnings equal $65.10.  During the second week, 
 
         there is some indication claimant worked 10.3 hours at $8.00 per 
 
         hour.  His gross earnings equal $81.84.  For the two pay periods, 
 
         claimant earned $146.94 in regular earnings.  Claimant worked one 
 
         week prior to the date of his injury.  When
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RYAN V. UNITED PARCEL SERVICE 
 
         Page 8
 
         
 
         
 
         the gross earnings are divided by one the result is $146.94 per 
 
         week.  Such is found to be representative of claimant's supposed 
 
         weekly earnings.  It is stipulated claimant is single and 
 
         entitled to one exemption.  When $146.94 is applied under the 
 
         July 1, 1988 benefits schedule, the result is $95.67 per week as 
 
         the rate of compensation.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented, the 
 
         stipulations and the principles of law previously stated, the 
 
         following findings of fact and conclusions of law are made:
 
         
 
              Finding 1. claimant has a functional impairment of five to 
 
         10 percent as a result of his work injury on March 29, 1989.
 
         
 
              Finding 2. claimant is a full time student studying to 
 
         become a clinical psychologist.
 
         
 
              Finding 3. Claimant was hired as a part-time employee who 
 
         was to work five days per week for 3.5 to 4.0 hours per day.
 
         
 
              Finding 4. claimant has not returned to any type of 
 
         employment since the date of his work injury.
 
         
 
              Conclusion A. Claimant has met his burden of proving he has 
 
         a 12 percent permanent partial disability attributable to his 
 
         work injury on March 29, 1989.
 
         
 
              Conclusion B. Claimant's rate of compensation is $95.67 per 
 
         week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant 60 weeks of 
 
         permanent partial disability benefits at the rate of ninety-five 
 
         and 67/100 dollars ($95.67) per week.
 
         
 
              Defendants are to also pay unto claimant forty-eight point 
 
         one-four-three (48.143) weeks of healing period benefits at the 
 
         rate of ninety-five and 67/100 dollars ($95.67) per week.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         RYAN V. UNITED PARCEL SERVICE
 
         Page 9
 
         
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report.
 
         
 
         
 
         
 
              Signed and filed this 16th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               MICHELLE A. McGOVERN
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P 0 Box 1588
 
         Council Bluffs  IA  51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         2nd Floor - Northwestern Bell Bldg
 
         310 Kanesville Blvd
 
         P 0 Box 398
 
         Council Bluffs  IA  51502
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed April 16, 1990
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS W. RYAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                              File No. 915458
 
         UNITED PARCEL SERVICE,
 
         
 
                                            A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                               D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE 
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Claimant was awarded a permanent partial disability for a 
 
         back injury.  Claimant was a full time student and a part-time 
 
         worker.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT P. MICHEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 915728
 
            THE ADAMS COMPANY,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY and    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            P. Michel, claimant, against his employer, The Adams 
 
            Company, and United States Fidelity and Guaranty Company, 
 
            insurance carrier, as defendants.  Claimant sustained a 
 
            work-related injury on April 28, 1989, and seeks additional 
 
            workers' compensation benefits.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on May 19, 1992, at Dubuque, 
 
            Iowa.
 
            
 
                 The record in this case consists of the live testimony 
 
            of the claimant, Jerry Roeth, Kathryn Michel and Ronald 
 
            Fitch; and, joint exhibits 1 through 8.
 
            
 
                                      ISSUES
 
            
 
                 The only issues presented are whether claimant received 
 
            a permanent injury, and, if so, the extent of his industrial 
 
            disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Robert Michel was born on February 27, 1940.  At the 
 
            time of the hearing, he was 52 years of age.
 
            
 
                 Mr. Michel earned a high school degree from Dubuque 
 
            High School in June of 1959.  He has had no further formal 
 
            education, but has an extensive amount of on-the-job 
 
            training as a machine operator.
 
            
 
                 For approximately one year after graduation from high 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            school, Mr. Michel worked as a machine operator for The 
 
            Adams Company, the defendant employer in this case.  He 
 
            operated milling machines, drill presses and automatic 
 
            lathes.  Ultimately, his hours were curtailed, and Mr. 
 
            Michel sought employment with Arbor Tool & Die in Dubuque.  
 
            He operated the same type of machines as he did for the The 
 
            Adams Company, and was laid off from this job after 
 
            approximately six months.
 
            
 
                 In 1961, claimant was rehired by The Adams Company as a 
 
            machine operator and set up person.  During an eight and 
 
            one-half period, claimant also exercised supervisory duties.
 
            
 
                 Presently, claimant devotes 50 percent of his time to 
 
            setup duties and 50 percent of his time as an assistant 
 
            foreman.  As a setup person, he assembles machines to 
 
            prepare them to make various parts on production runs.  The 
 
            job requires reaching, lifting of up to eighty pounds and 
 
            bending.
 
            
 
                 On April 28, 1989, claimant sustained a work-related 
 
            injury to his right shoulder and to his low back.
 
            
 
                 Claimant underwent two separate surgeries to his right 
 
            shoulder, an arthroscopy performed in May of 1989, and 
 
            reconstructive surgery to repair a torn rotator cuff in 
 
            March of 1990.  Both surgeries were performed by Gerald L. 
 
            Meester, M.D., an orthopedic specialist.
 
            
 
                 In October of 1989, claimant also underwent back 
 
            surgery to repair a ruptured disk.
 
            
 
                 After these surgeries, claimant was off of work for 
 
            various periods of time, and underwent an extensive amount 
 
            of physical therapy and a work hardening program (Joint 
 
            Exhibit 5, pages 1 through 19).  Claimant expressed that he 
 
            had not received much benefit from the physical therapy 
 
            regimen.
 
            
 
                 According to Ronald Fitch, the company's policy 
 
            regarding injured workers was that no worker was allowed to 
 
            return to work unless they were without restrictions.  Dr. 
 
            Meester was unable to release claimant to return to work 
 
            without restrictions of no lifting of more than ten pounds 
 
            and no lifting, pushing or pulling above mid-chest level on 
 
            his right arm (Jt. Ex. 3, p. 9).  Dr. Meester gave claimant 
 
            a 30 percent functional impairment of the right shoulder 
 
            (Jt. Ex. 3, p. 9).
 
            
 
                 Defendants arranged for claimant to undergo two more 
 
            evaluations, one in January of 1991, and the second in May 
 
            of 1992.  Both were performed by John S. Koch, M.D.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            The January 1991 evaluation found:
 
            
 
                    I find that he has a nine percent impairment of 
 
                 the whole person relative to his back which has 
 
                 had surgery performed upon it and he has slight 
 
                 residual symptoms.  I find that he has a one 
 
                 percent impairment of the whole person relative to 
 
                 his right shoulder which has slight restriction of 
 
                 motion and discomfiture associated with capsular 
 
                 tightness....I would place no restriction on work 
 
                 activities for a man of this age who is beginning 
 
                 to demonstrate degenerative changes of the whole 
 
                 body system.
 
            
 
            (Jt. Ex. 6, p. 4)
 
            
 
                 In May of 1992, Dr. Koch made the following assessment:
 
            
 
                    Passively I can demonstrate full range of 
 
                 motion in the right shoulder.  Pain is the basis 
 
                 for the loss of motion of the right shoulder in 
 
                 active use, and disuse changes resulting in 
 
                 weakness secondary to the effects of pain.  There 
 
                 is a chronic tendinitis or impingement difficulty 
 
                 with the right shoulder resulting in the 12 
 
                 percent impairment of the shoulder due to loss of 
 
                 range of motion, 15 percent as a result of 
 
                 weakness.  This combines to a 25 percent 
 
                 impairment of the right upper extremity, 15 
 
                 percent impairment of the whole person.  The back 
 
                 has an impairment of 9 percent in as much as in a 
 
                 post surgical state with degenerative phenomenon 
 
                 present producing symptomatology resulting in 
 
                 impairment of 9 percent.  Combines whole body 
 
                 impairment of shoulder and back is 24 percent.
 
            
 
                 ...He may continue in his present occupation with 
 
                 restrictions already in place.
 
            
 
            (Jt. Ex. 6, p. 7)
 
            
 
                 Claimant is left hand dominant.  His job as a setup 
 
            person requires him to use extensively both right and left 
 
            upper extremities.  Prior to the injury, claimant was able 
 
            to lift parts weighing more than 80 pounds, but he is 
 
            currently unable to do so.  The company has provided him 
 
            with a work environment that allows him to ask for help on 
 
            an as-needed basis.  And, although initially the company was 
 
            reluctant to modify claimant's position to accommodate his 
 
            physical capabilities, the company has provided claimant 
 
            with appropriate job assignments.
 
            
 
              
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained permanent disabilities due to his work-related 
 
            accident.
 
            
 
                 It is clear from the medical reports from Drs. Meester 
 
            and Koch that claimant has sustained a permanent disability.  
 
            Both doctors have assessed impairment ratings based on 
 
            various test results.  As a result, it is found that 
 
            claimant has sustained a permanent disability.
 
            
 
                 The parties agree that claimant sustained injuries to 
 
            his body as a whole; therefore, an analysis of his 
 
            industrial disability is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 52 years old.  
 
            He is a high school graduate.
 
            
 
                 All of claimant's work experience has been focused on 
 
            duties as a machine operator, setup person for production 
 
            machines, and supervisory duties.  He has worked for the 
 
            defendant for more than thirty years.
 
            
 
                 Claimant's injury on April 28, 1989 affected both his 
 
            low back and his right shoulder.  Claimant underwent surgery 
 
            to repair a herniated disc at the L5-S1 level.  Apparently, 
 
            claimant had an excellent result from the low back surgery, 
 
            as he had no complaints of low back pain or residual 
 
            problems after recovery from the surgery.
 
            
 
                 The right shoulder has been the main cause of 
 
            claimant's disability.  His position as a setup person 
 
            requires him to lift and insert various parts to machines.  
 
            Although prior to the work accident claimant was able to 
 
            fully perform these duties, he must now ask for help when 
 
            placing certain parts into the various machines.  The 
 
            company has provided claimant with help on an as-needed 
 
            basis.
 
            
 
                 At the time of the injury, claimant was earning $13.25 
 
            per hour.  Currently, he earns $13.48 per hour.  This 
 
            increase was due to cost of living adjustments and a 
 
            collective bargaining agreement.
 
            
 
                 Claimant has lost no time from work since returning to 
 
            his position full time.  His last medical treatment was in 
 
            the form of physical therapy which took place in July of 
 
            1990.  He is on no prescription medications, although 
 
            claimant does occasionally take Tylenol for pain and 
 
            soreness.  He no longer performs home exercises, although 
 
            claimant understood that his physical condition is 
 
            deconditioned, and that Dr. Koch recommended some type of 
 
            exercise.
 
            
 
                 Claimant felt, and defendants concurred, that the 
 
            company is satisfied with his job performance.
 
            
 
                 The company also provides hoists to be used to lift 
 
            heavy parts for several machines.
 
            
 
                 Claimant is currently unable to perform all of the jobs 
 
            he was assigned prior to the injury.  He has somewhat severe 
 
            lifting and movement restrictions.  These restrictions 
 
            require claimant to frequently ask for help while performing 
 
            his job tasks.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's condition has worsened since his initial 
 
            return to work.  However, claimant continues to perform his 
 
            job satisfactorily.
 
            
 
                 And, although claimant argues that if he were a new 
 
            employee assigned to duties as a machine operator, he would 
 
            be unable to perform the required duties.  Claimant has not 
 
            been placed in this situation.  Accepting claimant's 
 
            argument would be tantamount to speculating about claimant's 
 
            future.
 
            
 
                 After considering all the factors that are applicable, 
 
            it is found that claimant has sustained a 15 percent 
 
            industrial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for seventy-five (75) weeks at the rate 
 
            of three hundred twenty-two and 08/100 dollars ($322.08) 
 
            beginning July 31, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants are entitled to a credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Stephen W Scott
 
            Attorney at Law
 
            100 W 12th St
 
            P O Box 703
 
            Dubuque IA 52001
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed June 15, 1992
 
                                                Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT P. MICHEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 915728
 
            THE ADAMS COMPANY,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY and    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
            Claimant awarded 15% industrial disability based on 
 
            medically imposed restrictions.
 
            
 
            Employer fully accommodated claimant's restrictions.  
 
            Claimant's actual earnings have increased.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         GLORIA IBARRA,                  :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 915992
 
         ARMOUR FOODS,                   :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         FRED S. JAMES & CO.,            :
 
                                         :
 
              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 
 
         June 30, 1994 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
              Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. H. P. Folkers
 
         Attorney at Law
 
         23 Third St., SW, Ste 200
 
         Mason City, Iowa 50401
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       5-1808
 
                                       Filed October 18, 1994
 
                                       Byron K. Orton
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         GLORIA IBARRA,                  :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 915992
 
         ARMOUR FOODS,                   :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         FRED S. JAMES & CO.,            :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         5-1808
 
         
 
              Found claimant incurred a work injury that resulted in a 
 
         simultaneous bilateral upper extremity (arms) injury resulting in 
 
         claimant incurring a five percent permanent impairment of each 
 
         arm resulting in claimant receiving 30 weeks of permanent partial 
 
         disability under the combined charts of the AMA Guides To The 
 
         Evaluation of Permanent Impairment.  Determined claimant did not 
 
         have a body as a whole injury but came under Iowa Code section 
 
         85.34(2)(s).
 
         
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            GLORIA IBARRA,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 915992
 
            ARMOUR FOODS,                 :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FRED S. JAMES & CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
                                          :
 
            ------------------------------------------------------------
 
                               STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on May 31, 1994, at Mason 
 
            City, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on March 
 
            17, 1989.  The record in the proceeding consists of the 
 
            testimony of the claimant and Carl Brandt; and, claimant's 
 
            exhibits 1 through 7 and defendants' exhibits A through G.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability.  
 
            Claimant is contending an industrial disability and 
 
            defendants are contending an 85.34(2)(s) injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 1982 high school graduate who upon 
 
            graduating went on to cosmetology school and graduated from 
 
            there in 1983.  She then looked for a job as a cosmetologist 
 
            but then decided to apply for work at defendant employer and 
 
            began working there in February of 1984 and was there 
 
            approximately five or six years before her injury on March 
 
            17, 1989.
 
            
 
                 Claimant described the nature of her job which involved 
 
            working with bacon, feeding it onto a scale, packaging it, 
 
            lining it from one belt to another, straightening it up, 
 
            etc.  She was required to do so many per minute and each 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            unit of bacon weighed approximately 16 ounces.  She did this 
 
            type of job for three years and then was shifted to a job as 
 
            a slicer/moulder at which time she would be picking up pork 
 
            bellies weighing 17 to 20 pounds and required her taking 
 
            bellies off a hanger above her head.
 
            
 
                 Claimant testified that from February 1984 to March of 
 
            1989, she had no physical problems and could do her job as 
 
            good as any male.
 
            
 
                 Claimant indicated that on March 17, 1984, she went to 
 
            lift and felt a pulling in her shoulder and neck and the 
 
            back of her head.  She didn't think too much of this 
 
            initially but one week later on March 24, she continued to 
 
            have problems and found it hard to lift and was sent to the 
 
            doctor.
 
            
 
                 Claimant indicated the doctor told her to go on light 
 
            duty and she went back to work in approximately three weeks 
 
            and back to the scale job again.  Claimant testified as to 
 
            her continuing medical treatment.  She indicated that 
 
            Kenneth B. Washburn, M.D., told to her that it was in her 
 
            head and recommended that she go to a psychiatrist.  
 
            Claimant indicated in March of 1990, she did go to a Des 
 
            Moines psychiatrist.  She indicated her physical condition 
 
            was the same.  Claimant said she was prescribed work 
 
            hardening exercises at home and performed them but there was 
 
            no improvement.  Claimant stated she was referred to Raymond 
 
            L. Emerson, M.D., and indicated he diagnosed her as having 
 
            an impingement syndrome in November of 1990 to her left 
 
            shoulder.  She indicated her left was worse than the right 
 
            and she couldn't lift her left arm and could not reach for a 
 
            glass without dropping it.
 
            
 
                 Claimant testified that during the next six months she 
 
            was using her right arm more than the left arm which was in 
 
            a sling.  She said she had right arm surgery on June 17, 
 
            1991.  Claimant said that the doctor indicated that on 
 
            December 16, 1991, which was six months after her surgery, 
 
            she had reached maximum healing and indicated she should not 
 
            lift above her head.  Claimant returned to work and 
 
            eventually got a termination letter in early 1993.
 
            
 
                 Claimant described her efforts to find work and in 
 
            December of 1993, began working for Corporate Farmers 
 
            Financial Consultants doing the bookkeeping and accounts at 
 
            $6.50 per hour, 40 hours per week with no benefits.  She 
 
            indicated the job was going well.  Claimant indicated that 
 
            movements of her arms causes a popping or grinding on top of 
 
            her shoulder.  Claimant described the activities with which 
 
            she had difficulty because of her alleged condition.  
 
            Claimant said that she was released by the doctor in 
 
            December or 1991.  She couldn't do the Armour job for very 
 
            long and couldn't do it now on a day-in, day-out basis.  
 
            Claimant indicated the pay at Armour now is $9.25 per hour 
 
            plus full benefits including dental and health insurance, 
 
            pension and stock purchase rights and that when she worked 
 
            there she averaged 40 hours per week plus a lot of overtime 
 
            which would make a total of about 53 hours per week.  
 
            Claimant said her gross pay in 1988 was $18,000 to $20,000.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant said she liked the job with defendant employer and 
 
            the people she worked with.
 
            
 
                 Claimant said she couldn't do any job more than five 
 
            minutes with her arms above her shoulder.  Claimant 
 
            acknowledged she had a license to drive a forklift but 
 
            doesn't drive one now and does not feel she could operate 
 
            one now because of the requirement of the use of her arms.
 
            
 
                 Claimant said she is now currently working full time 
 
            and has signed up to take classes toward an associates 
 
            science degree.  Claimant indicated that she is going to 
 
            school two days a week for two hours each class and then has 
 
            her 40 hour work week and does her homework.  Claimant 
 
            indicated that when she began working for Corporate Farmer, 
 
            her current employer, she was working at Target in August of 
 
            1993 at $4.90 per hour on the sales floor and as a cashier.  
 
            She indicted she left Target in December of 1993 because 
 
            working two jobs was hard.
 
            
 
                 Claimant acknowledged that she went scuba diving the 
 
            Saturday before her deposition and that she was certified on 
 
            this one occasion.  She indicated she cannot afford to go 
 
            because it is expensive.  Claimant indicated scuba diving 
 
            did not require a lot of arm movement and her arms would be 
 
            kept at her side and she used her feet and legs only.
 
            
 
                 Carl Brandt is a supervisor for defendant employer and 
 
            has worked for them since May 1978.  He acknowledged that he 
 
            supervised claimant in 1984 and 1985 when she worked as a 
 
            scaler and a feeder.  He described the nature of the job 
 
            claimant did and what she had to do in order to do the job.
 
            
 
                 He acknowledged that as a scaler claimant picked up 
 
            boxes up to 15 pounds to bring them to the scaler and wrap 
 
            them up.  He indicated she had to reach two or three feet to 
 
            pick up the box.  He acknowledged claimant told him of her 
 
            injury but doesn't recall claimant indicating that she was 
 
            lifting.  He indicated there is no reason for claimant to 
 
            lift pallets but that she could lift one at the end of a 
 
            shift but that wasn't usually a part of her feeder scaler 
 
            job.
 
            
 
                 He said claimant was off work due to her surgery and 
 
            under union contract rules when you are off 18 months, then 
 
            one is terminated.  
 
            
 
                 He acknowledged that claimant was always a good worker 
 
            and had no problem that he knew of and had no problem doing 
 
            her job prior to March 17, 1989.  He indicated claimant 
 
            could do all the work that she was qualified to do.
 
            
 
                 Claimant testified through her deposition on September 
 
            29, 1993. (Defendants' Exhibit D)  Her testimony related 
 
            prior to this point in this decision was the testimony 
 
            claimant gave at the time of the hearing.
 
            
 
                 In her deposition, claimant indicated she was not 
 
            having any problems with her left shoulder and that 
 
            sometimes she was having problems with her right shoulder.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            She indicated lifting something heavy, the weather, 
 
            overworking, or being more active as to moving around, 
 
            moving her arms sometimes brings on problems.  When asked 
 
            again what was wrong with her right shoulder or what 
 
            problems she is having, she indicated it is fine sometimes, 
 
            sometimes it bothers her and she gets a pain in her joint 
 
            once in awhile and that was it. (Def. Ex. D, pp. 20-23)
 
            
 
                 Raymond L. Emerson, M.D., testified through his 
 
            deposition on September 29, 1993. (Def. Ex. G)  He testified 
 
            he is an orthopedic surgeon and first saw claimant on June 
 
            27, 1990.  The doctor testified that on examination of 
 
            claimant's shoulders, he felt that claimant had signs and 
 
            symptoms of impingement syndrome of both shoulders.  He 
 
            performed conservative treatment and indicated claimant 
 
            improved for awhile but then the symptoms came back.  He 
 
            performed arthroscopy on claimant's left shoulder on 
 
            November 13, 1990, and then proceeded on said date after 
 
            looking inside the shoulder and went ahead and did a 
 
            decompression of the space above the shoulder.  His final 
 
            diagnosis on the surgery then was that claimant had 
 
            impingement syndrome of the left shoulder.  She obtained 
 
            full range of motion of her left shoulder following surgery.  
 
            He then indicated he proceeded to operate on claimant's 
 
            right shoulder on June 17, 1991 and did the same type of 
 
            surgery except he did it arthroscopically instead of openly 
 
            like he did in the first operation.  His diagnosis of the 
 
            right shoulder was also impingement syndrome.  He indicated 
 
            that there was no rotator cuff tear on either shoulder.  He 
 
            felt claimant made a good recovery and that she had reached 
 
            maximum medical improvement following the surgery procedures 
 
            as of December 16, 1991.  He further opined that claimant 
 
            had a 5 percent permanent partial impairment of the upper 
 
            extremity each side.  (Def. Ex. G, p. 8)
 
            
 
                 The doctor was questioned on direct and 
 
            cross-examination concerning whether claimant's injury was 
 
            to the shoulders and implicating the body as a whole or 
 
            whether by shoulders, the doctor meant the upper extremities 
 
            or arms.  One can conclude that whenever he was referring to 
 
            the shoulders, he meant upper extremities and when referring 
 
            to upper extremities, he meant the arms.  The doctor 
 
            indicated the areas involved, the surgery and the particular 
 
            parts of the shoulder or shoulder area involved.  The 
 
            undersigned feels this is a very close issue as to whether 
 
            we have the arms involved or the body as a whole.  On page 
 
            13 of his deposition, when asked whether he equates his 
 
            opinion to an impairment of the body as a whole, he 
 
            indicated what he commonly does for shoulder problems is 
 
            treat that as an impairment of that extremity and not to the 
 
            body as a whole.  In reading the deposition exhibits and 
 
            other medical records of Dr. Emerson, the undersigned is 
 
            troubled by that conclusion and wondering if this doctor is 
 
            one who contrary to the majority of orthopedists treat these 
 
            as injuries to the arm while others may treat it as truly 
 
            shoulder injuries resulting in body as a whole impairments.  
 
            The doctor in a January 8, 1992 letter, which is an exhibit 
 
            on his deposition, indicated that he did not think claimant 
 
            would be able to tolerate repetitious use of either upper 
 
            extremity and in his deposition on page 9, he indicates that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the permanent restrictions that he would place on claimant's 
 
            work activity would be those that would cause pain for her, 
 
            probably those would be repetitious use of the arms in the 
 
            shoulder level or above level type of work.
 
            
 
                 Claimant's exhibit 1 reflects that on August 18, 1989, 
 
            claimant was complaining of discomfort in both shoulders 
 
            more on the left than on the right.  Around December of 
 
            1989, there was consideration in sending claimant to an 
 
            orthopedic specialist.  There is also reference in the 
 
            record concerning claimant's psychophysiological problems.  
 
            The undersigned feels that there is no psychological 
 
            component to the injury that is causing her problems for 
 
            which claimant is seeking compensation.
 
            
 
                 Claimant's exhibit 3 is a letter from John R. Walker, 
 
            M.D., who did not find any permanent impairment as of his 
 
            March 12, 1990 letter.  He indicated he was unable to until 
 
            some of his recommendations are carried out.  He indicated 
 
            in his report that in his inexpert opinion, he thought 
 
            claimant was somewhere in between the center of a scale at 
 
            which one end is a complete total psychophysiological 
 
            conversion reaction and at the other end a total complete 
 
            problem of malingering but that she may lie a little bit 
 
            toward the malingering end of the scale.  He indicated that 
 
            claimant does not demonstrate to him to have any real 
 
            shoulder problems other than the so-called diagnosis of a 
 
            mild sprain of the left shoulder and right shoulder with 
 
            conversion reaction.
 
            
 
                 In a March 5, 1990 report of Michael J. Taylor, M.D., a 
 
            psychiatrist, he found no evidence that claimant suffered 
 
            from any type of psychiatric disorder or that she requires 
 
            any type of psychiatric or psychological treatment.  He did 
 
            not believe claimant was suffering from conversion reaction 
 
            in which he said the current psychiatric diagnosis for such 
 
            a disorder would be conversion disorder.
 
            
 
                 Claimant's exhibit 7 is a letter from John A Grant, 
 
            M.D, in which he did not feel claimant's problems were 
 
            emotional and felt she had some realistic complaints and 
 
            physical findings but suggested an arthroscopic evaluation 
 
            of the subacromial space with possible acromioplasty.  Of 
 
            course, as indicted earlier, procedures were done and it was 
 
            determined that claimant did not have any rotator cuff tear 
 
            or problems.
 
            
 
                 The dispute in this case is whether claimant has a body 
 
            as a whole injury or whether she has an 85.34(2)(s) injury 
 
            which in this case would be a simultaneous bilateral upper 
 
            extremity (arms) injury.
 
            
 
                 As indicated earlier, the undersigned believes this may 
 
            be a very close issue but believes the greater weight of 
 
            medical evidence and the record presented herein would 
 
            indicate that claimant has a bilateral simultaneous injury 
 
            to her left and right arms resulting in a 5 percent 
 
            impairment to each upper extremity.  Only one doctor was 
 
            specifically asked whether the injury is to the body as a 
 
            whole or to the arms.  The undersigned further finds that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            when the word upper extremity is used in this case, the 
 
            doctor is meaning the arms and that when reference to the 
 
            shoulder is made in this case, he means an upper extremity 
 
            which then he relates to the arms.  The undersigned might 
 
            add that it is not uncommon for a doctor to refer to a 
 
            shoulder-body as a whole injury as an upper extremity 
 
            injury.  More often than not, when one refers to a shoulder 
 
            injury, it is more likely not an extremity injury depending 
 
            on further determination of the doctor and explanation of 
 
            what he means.  The undersigned believes the doctor means in 
 
            this case the claimant's arm.  The doctor's explanation of 
 
            what he means when he is using the word shoulder clarifies 
 
            his position that he feels there is an impairment to the 
 
            left and right arms and as he indicated in his deposition, 
 
            he did not feel there was a body as a whole injury.  The 
 
            undersigned therefore finds that claimant incurred a 
 
            bilateral simultaneous upper extremity (arms) injury on 
 
            March 17, 1989, resulting in claimant incurring a 5 percent 
 
            impairment to his left arm and 5 percent impairment to his 
 
            right arm.  In converting the upper extremity impairment 
 
            under the charts, it results in a 3 percent whole person 
 
            impairment of each arm and further, in using the combined 
 
            value charts, it results in a 6 percent whole person 
 
            impairment, entitling claimant to 30 weeks of permanent 
 
            partial disability benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Benefits for permanent partial disability of two 
 
            members caused by a single accident is a scheduled benefit 
 
            under section 85.34(2)(s); the degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a simultaneous bilateral injury to 
 
            his left and right upper extremity (arms) on March 17, 1989, 
 
            causing claimant to incur a 5 percent impairment to his left 
 
            and right upper extremity resulting in an ultimate combined 
 
            values impairment under 85.34(2)(s) of 6 percent of the 
 
            whole person.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant thirty (30) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred eight and 15/100 dollars ($208.15) per week 
 
            beginning December 17, 1991.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  There was no dispute as to 
 
            healing period.  The parties agreed that all healing period 
 
            was paid.  The parties further agreed that thirty (30) weeks 
 
            of permanent partial disability benefits had been paid by 
 
            defendants to the claimant at the two hundred eight and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            15/100 dollars ($208.15) rate, therefore, resulting in 
 
            defendants owing claimant nothing as a result of this 
 
            decision.
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies to:
 
            
 
            Mr H P Folkers
 
            Attorney at Law
 
            5 W State St
 
            Mason City IA 50401
 
            
 
            Mr Marvin E Duckworth
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1808
 
                                              Filed June 30, 1994
 
                                              Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            GLORIA IBARRA,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 915992
 
            ARMOUR FOODS,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            FRED S. JAMES & CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
                                          :
 
            ------------------------------------------------------------
 
            5-1808
 
            
 
            Found claimant incurred a work injury that resulted in a 
 
            simultaneous bilateral upper extremity (arms) injury 
 
            resulting in claimant incurring a 5% permanent impairment of 
 
            each arm resulting in claimant receiving 30 weeks of 
 
            permanent partial disability under the combined charts of 
 
            the AMA Guides To The Evaluation of Permanent Impairment.  
 
            Determined claimant did not have a body as a whole injury 
 
            but came under Iowa Code section 85.34(2)(s).
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA SMITH-MILLER, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 916111
 
            FURNAS ELECTRIC,    
 
                                                
 
                 Employer,  
 
                                                     O R D E R       
 
            and       
 
                                                 P E R M I T T I N G
 
            LIBERTY MUTUAL,     
 
                                                 W I T H D R A W A L
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            This matter came on for hearing on June 21, 1993, upon the 
 
            application to withdraw filed April 27, 1993, by counsel of 
 
            record Ronald G. Cable and Michael E. Hanson.
 
            
 
            Linda Smith-Miller did not comply with the directive from 
 
            this agency to provide this agency with a telephone number 
 
            where she could be reached for purposes of the hearing.  
 
            Linda Smith-Miller was not at either of the two telephone 
 
            numbers provided by counsel.  Counsel submitted a number of 
 
            letters and documents.  
 
            
 
            Upon hearing the statements from counsel and observing the 
 
            documents submitted, it is found that Linda Smith-Miller has 
 
            failed to cooperate with counsel in the prosecution of her 
 
            case.  Counsel are not able to function adequately without 
 
            her cooperation.  Counsel should therefore be allowed to 
 
            withdraw in this matter.
 
            
 
            It is therefore ordered that Ronald G. Cable and Michael E. 
 
            Hanson are permitted to withdraw from this proceeding.  
 
            Their withdrawal is effective immediately.  
 
            
 
            It is further ordered that all further proceedings in this 
 
            case are stayed until July 12, 1993, in order to allow Linda 
 
            Smith-Miller to obtain other counsel and to have that 
 
            counsel appear of record.  If replacement counsel has not 
 
            appeared by July 12, 1993, the case will proceed with 
 
            claimant appearing pro se.
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Michael Hanson
 
            Attorney at Law
 
            2706 Grand Ave
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Ronald Cable
 
            Attorney at Law
 
            414 E. Grand Ave
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Linda Smith-Miller
 
            PO Box 49
 
            Murray, Iowa  50174
 
            REGULAR AND CERTIFIED MAIL
 
            
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         EDGAR O. TRICE,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 916218
 
         PEOPLES NATURAL GAS,          :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         HOME INSURANCE COMPANY,       :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Edgar Trice, against his employer, Peoples Natural Gas 
 
         Company, and its insurance carrier, Home Insurance Company, 
 
         defendants.  The case was heard on November 2, 1992 in Dubuque, 
 
         Iowa at the county courthouse.  The record consists of the testi
 
         mony of claimant.  The record also consists of the testimony of 
 
         Patrice Trice, spouse of claimant; and the testimony of Louis 
 
         Vierling, vocational rehabilitation counselor.  Additionally, the 
 
         record consists of claimant's exhibits 1-14 and defendants' 
 
         exhibits 1-5, 8, 13 and 14.
 
         
 
                                      ISSUE
 
         
 
              The issue to be determined is:
 
         
 
              The nature and extent of claimant's permanent partial 
 
         disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 62 years old.  He is the married father of an 
 
         adult son.  Claimant is a high school graduate with an exemplary 
 
         military career in the United States Navy.  He entered the mili
 
         tary on November 1, 1947 where he remained in active duty for 22 
 
         years.  During his military service, claimant primarily served on 
 
         submarines and he worked with weaponry.  Toward the end of his 
 
         military career, claimant worked as an instructor for fleet 
 
         training groups.  He retired on July 7, 1969.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              Following his retirement from the military, claimant moved 
 
         to northeast Iowa.  In September of 1969, claimant commenced his 
 
         employment with defendant-employer.  He worked there through 
 
         October 1, 1990.
 
         
 
              Initially, claimant was hired as a meter reader.  He held 
 
         that position for 18 months.  Then claimant was promoted to a 
 
         meter repair person in the shop.  His duties included repairing 
 
         large volume meters.
 
         
 
              In 1985, the company was sold.  Claimant remained employed 
 
         at the new company.  However, his position changed to that of a 
 
         Field Measurement Technician I.  As a technician, claimant tested 
 
         and repaired large volume meters, regulators, relief valves, and 
 
         temperature valves.  Because of his duties, claimant traveled in 
 
         the Dubuque area, south to Highway 30 and east to the Mississippi 
 
         River.  Occasionally, claimant traveled to Minnesota and assisted 
 
         employees there.  Fifty percent of his working week consisted of 
 
         time spent on the road.
 
         
 
              In 1983 claimant sustained an injury to his back for which 
 
         he underwent a laminectomy at L4 with a posterior spinal fusion 
 
         in situ without instrumentation. (Claimant's Exhibit 2, page 7).  
 
         Claimant returned to work and resumed his regular full time 
 
         duties.  He progressed without incident.
 
         
 
              The parties stipulated that on January 18, 1989, claimant 
 
         sustained a work-related injury to his back.  Claimant sought 
 
         medical treatment from an orthopedic surgeon, J. Nemmers, M.D.  
 
         Dr. Nemmers performed a "[t]]otal laminectomy L3 with evacuation 
 
         of epidural hematoma and dissection of membrane."  (Cl. Ex. 1, 
 
         p. 18)  Claimant returned to work on or about June 25, 1989.  At 
 
         the time, a lifting restriction of 45 pounds was placed upon him.  
 
         Claimant began experiencing difficulties with his back.  Conse
 
         quently, he returned to his treating surgeon, Dr. Nemmers.  
 
         Because of the complexity of the case, Dr. Nemmers referred 
 
         claimant to the Twin Cities Scoliosis Center.
 
         
 
              At the Twin Cities Scoliosis Center, claimant was seen by 
 
         several specialists in orthopedic surgery.  His primary treating 
 
         physician at the facility was O. Boachie-Adjei, M.D. (hereinafter 
 
         referred to as "Dr. Boachie").  Dr. Boachie performed a 
 
         "[p]osterior pseudoarthrosis repair L2 to the sacrum, decompres
 
         sion L4 to the sacrum, instrumenation [sic] with CD system L3 to 
 
         the sacrum, left iliac crest bone graft."  (Cl. Ex. 2, p. 10).  
 
         The procedure involved the insertion of metal rods at the sides 
 
         of the spine.  The rods were visible in x-ray photographs.  The 
 
         surgery was performed on November 6, 1989.  Following the 
 
         surgery, Dr. Boachie prescribed a fiberglass back brace which 
 
         claimant wore for several months.
 
         
 
              On April 1, 1990, Dr. Boachie released claimant to return to 
 
         work so long as he lifted only 35 pounds from the floor and 50 
 
         pounds from the waist.  He assessed claimant as having a 27.5 
 
         percent functional impairment.
 
         
 
              Claimant returned to work but on light duty.  His duties 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         included performing paperwork, testing instruments and assisting 
 
         other co-employees.  In September of 1990, claimant was assisting 
 
         with the installation of a large meter on a grain bin which was 
 
         located in Hawkeye, Iowa.  He received a telephone call from his 
 
         supervisor, Lynn Manski on September 26, 1990.  Mr. Manski 
 
         requested a meeting with claimant on October 1, 1990.  At the 
 
         October meeting, claimant was notified to return his company 
 
         vehicle, keys and credit card because his work career with the 
 
         company had terminated.
 
         
 
              On October 18, 1990, an embittered claimant returned to the 
 
         scoliosis clinic.  His treating physician was replaced by Serena 
 
         S. Hu, M.D.  Dr. Hu examined claimant.  In her office notes, she 
 
         opined that:
 
         
 
              His back is nontender, his forward flexion extension is 
 
              limited, but nonpainful.  Neurologic exam is intact 
 
              grossly.  X-rays done today show some paucity of calci
 
              fication of low neck L5-Sl interspace on the left side 
 
              of L3-L4.  Given his lack of symptoms, I would not sug
 
              gest additional workup at this time.  At the time he 
 
              was last seen by Dr. Boachie in 4/90, he was given a 
 
              restriction of 35# lift from the floor, and 50# lift 
 
              from the waist.  I discussed with him and his Q.R.C. 
 
              his potential limitations and while he could poten
 
              tially gradually increase his weight restrictions to a 
 
              possible 50-75# from the floor depending on himself, we 
 
              want this to be gradual and the patient, given his 
 
              recent layoff, is bitter about this and he does not 
 
              feel he is a candidate for this.
 
         
 
              His disability rating is still 27.5% because of his 
 
              three level fusion.
 
         
 
              Follow-up in six months with new films.  The patient 
 
              will contact me if there is any problem or if he 
 
              decides to become reemployed in the meantime.
 
         
 
         (Cl. Ex. 2, p. 22)
 
         
 
              Basically, Dr. Hu concurred with the opinion of Dr. Boachie.  
 
         In August of 1991, Dr. Hu left her position in Minnesota and 
 
         moved to California.  Kirkham B. Wood, M.D., another orthopedic 
 
         physician at the Twin Cities Scoliosis Center, modified 
 
         claimant's work restrictions to no lifting or carrying above 75 
 
         pounds and to pushing up to 50 pounds only.
 
         
 
              Lewis Vierling, a vocational rehabilitation consultant with 
 
         Management Consulting & Rehabilitation Services, Inc., had been 
 
         hired by defendant-insurance carrier for medical management and 
 
         later for vocational rehabilitation.  Mr. Vierling denied ever 
 
         advising his clients to terminate claimant.  After claimant's 
 
         employment relationship with defendant-employer had been severed, 
 
         Mr. Vierling discussed employment options with claimant.  While 
 
         claimant desired a return to work with defendant-employer, a 
 
         position in the Dubuque area was not offered to him.  Mr. 
 
         Vierling was never able to find any position for claimant. At the 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         time of the hearing, claimant was still unemployed.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The fighting issue before the undersigned deputy is the 
 
         nature and extent of claimant's permanent partial disability.  
 
         Functional impairment is an element to be considered in determin
 
         ing 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 inabil
 
         ity to engage in employment for which the employee is fitted.  
 
         Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
         (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; earn
 
         ings prior and subsequent to the injury; age; education; motiva
 
         tion; 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 trans
 
         fer for reasons related to the injury is also relevant.  Like
 
         wise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are mat
 
         ters which the finder of fact considers collectively in arriving 
 
         at the determination of the degree of industrial disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of func
 
         tional impairment directly correlate to a degree of industrial 
 
         disability to the body as a whole.  In other words, there are no 
 
         formulae which can be applied and then added up to determine the 
 
         degree of industrial disability.  It therefore becomes necessary 
 
         for the deputy or commissioner to draw upon prior experience as 
 
         well as general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Christensen 
 
         v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commis
 
         sioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
         Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commis
 
         sioner Decisions 654 (App. February 28, 1985).
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              There is no question that claimant has sustained a func
 
         tional impairment.  The treating physicians, Boachie and Hu, have 
 
         opined there is a functional impairment of 27.5 percent.
 
         
 
              Gary DeVoss, M.D., an internist, opined:
 
         
 
              On his x-rays on my review he does infact [sic]  have a 
 
              very complicated lumbar spine problem.  Mr. Trice does 
 
              have a metal devise with pins providing stability.  
 
              This certainly puts him into a different category than 
 
              most all patients who have had lumbar disc surgery.  He 
 
              certainly would be considered to have a very compli
 
              cated lumbar spine injury.  I would certainly expect 
 
              him to continue to be symptomatic from this problem.
 
         
 
              I would expect that the patient should be able to be 
 
              placed on disability if necessary.  I would agree with 
 
              continuing to try him in his current work environment.  
 
              If however you feel he cannot adequately perform his 
 
              job because of his lower back problems, I would recom
 
              mend that perhaps the patient and you seek a disability 
 
              status.  Again, because of this very complicated prob
 
              lem, I would not expect that he would have any diffi
 
              culty in getting Social Security Disability Benefits.
 
         
 
         (Cl. Ex. 6)
 
         
 
              Thomas J. Hughes, a physician in occupational medicine, 
 
         opined that:
 
         
 
                1)  The 20% impairment, which I offered with regard 
 
              to Mr. Trice, was based on my estimation of the conse
 
              quences of his 1-18-89 accident, and I attempted to 
 
              deduct out any component of his pre-existing condition, 
 
              including his 1983 surgical procedure.  The patient's 
 
              age is not a relevant factor in determining an impair
 
              ment, though it certainly has certain implications with 
 
              regard to disability which is not a medical determina
 
              tion.
 
         
 
                2)  It would not be anything more than mere specula
 
              tion as to what type of work restrictions I might have 
 
              placed on Mr. Trice, after his return to work following 
 
              his 1983 accident.  Certainly, I think the patient 
 
              should have been placed on some form of work restric
 
              tion, such as a maximum of 40 pounds of lifting, on his 
 
              initial return to work, and then possibly this could 
 
              have been adjusted upward, depending on his clinical 
 
              progress.  However, I never had the opportunity to 
 
              evaluate this patient at this time, and furthermore, 
 
              the patient was considerably younger, by nearly ten 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
              years, than he is currently, so I am not certain I 
 
              could find fault with the ultimate disposition that he 
 
              was released to unrestricted work at that time.  If I 
 
              had occasion to be requested by his employer to evalu
 
              ate the patient's capacity for work, some time prior to 
 
              his accident in 1989, and in view of his history, I 
 
              would suspicion I would have considered a work restric
 
              tion somewhere in the neighborhood of a maximum of 
 
              40-50 pounds lifting limit, but again, this is purely 
 
              speculation, as I certainly never had the opportunity 
 
              to evaluate this patient at that time, nor was I given 
 
              the opportunity to make that kind of assessment.  Simi
 
              larly, I would not know how I would rate Mr. Trice's 
 
              capacity for work at this time, if he had not had his 
 
              injury and back surgery in 1989, as I have never seen 
 
              this individual preceeding [sic] those injuries, so it 
 
              would be impossible to say what I might have done if 
 
              certain things had not happened, as that is not a real 
 
              situation, and I could not respond to such a hypotheti
 
              cal proposition.
 
         
 
         (Cl. Ex. 13, p. 1)
 
         
 
              The impairment ratings which were obtained for claimant were 
 
         all tied to the work injury in question.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that the injury of January 18, 1989 was causally related 
 
         to the disability on which he based his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         was insufficient; a probability was necessary.  Burt v. John 
 
         Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  
 
         The question of causal connection was essentially within the 
 
         domain of expert testimony.  Bradshaw v. Iowa Methodist Hospital, 
 
         251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              This is a classic case under the rationale of Bearce v. FMC 
 
         Corporation, 465 N.W.2d 531 (Iowa 1991).  Claimant's permanent 
 
         disability is attributable to the January 18, 1989 work injury.  
 
         While claimant had a preexisting back condition, apportionment of 
 
         disability was not proper here because prior to the August 29, 
 
         1989 work injury, claimant was not industrially disabled.  He was 
 
         always capable of handling his regular duties prior to the work 
 
         injury in January of 1989.
 
         
 
              Defendants did not meet their burden of proof regarding the 
 
         apportionment of any disability.  The burden of showing that 
 
         disability is attributable to a preexisting condition is upon 
 
         defendants.  Where evidence to establish a proper apportionment 
 
         is absent, the defendants are liable for the entire disability 
 
         that exists.  Bearce, 465 N.W.2d at 536-37; Varied Enterprises, 
 
         Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  Here, defendants are 
 
         liable for any existing disability.  Claimant had no prior indus
 
         trial disability.
 
         
 
              Claimant has sustained an industrial disability.  He is now 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         62 years old.  Prior to the work injury, claimant had no thoughts 
 
         of retirement.  At the time of the injury, claimant was a produc
 
         tive and dedicated employee who exhibited loyalty to the company.  
 
         Claimant was highly motivated to return to work in April of 1990.  
 
         He engaged in work hardening followed by light duty.  He returned 
 
         to work for six months without incident.  He performed his duties 
 
         in a satisfactory manner.  No member of management discussed with 
 
         claimant any problems he may have experienced on the job until 
 
         the day claimant was terminated.  Despite claimant's extraordi
 
         nary motivation and his efforts to rehabilitate himself, 
 
         defendant-employer terminated claimant on October 1, 1990.  The 
 
         termination came as a complete shock to claimant.  The termina
 
         tion was not recommended by the vocational rehabilitation coun
 
         selor.  Mr. Vierling testified he did not advise his client, the 
 
         employer to dismiss claimant.  The undersigned is absolutely 
 
         appalled by the facts of this case.
 
         
 
              Clearly, the extent of claimant's industrial disability is 
 
         best illustrated by the fact that despite claimant's monumental 
 
         efforts, defendant-employer no longer desired to retain its long 
 
         time dedicated employee.  If the defendant-employer had no use 
 
         for an employee with three back surgeries, it is difficult to 
 
         imagine another employer desiring such an employee who is in his 
 
         sixties.  Moreover, Mr. Vierling had testified he was unable to 
 
         locate a position for claimant in the Dubuque area.  His efforts 
 
         to return claimant to defendant-employer were fruitless.  At 
 
         best, Mr. Vierling testified that in the future, he could locate 
 
         an entry level position for claimant.  There is no doubt in the 
 
         mind of this deputy any entry level position would pay but 
 
         minimum wage.  The undersigned is overwhelmingly persuaded that 
 
         claimant has sustained a 75 percent permanent partial disability.  
 
         Had claimant not exhibited such uncommon motivation, it is this 
 
         deputy's opinion that probably claimant would have been totally 
 
         disabled.  Claimant is entitled to 375 weeks of benefits at the 
 
         corrected stipulated rate of $327.10 per week commencing on April 
 
         1, 1990.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant three hundred 
 
         seventy-five (375) weeks of weekly benefits at the corrected 
 
         stipulated rate of three hundred twenty-seven and 10/l00 dollars 
 
         ($327.10) per week commencing on April 1, 1990.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendants shall receive credit for all benefits previously 
 
         paid.
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.1.
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Brendan T. Quann
 
         Attorney at Law
 
         200 Cycare Building
 
         Dubuque, Iowa  52001
 
         
 
         Mr. Rodney G. Gnuse
 
         Mr. Donald G. Furlow
 
         Attorneys at Law
 
         11404 West Dodge Road
 
         Suite 700
 
         Omaha, Nebraska  68154
 
         
 
 
         
 
 
 
 
 
 
 
 
 
                                           1800
 
                                           Filed November 23, 1992
 
                                           MICHELLE A. McGOVERN
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         EDGAR O. TRICE,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 916218
 
         PEOPLES NATURAL GAS,          :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         HOME INSURANCE COMPANY,       :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         1800
 
         The hearing deputy held that claimant had a 75 percent permanent 
 
         partial disability.  Numerous physicians rated claimant as having 
 
         a 20 percent to 27.5 percent functional impairment.  Claimant had 
 
         held two jobs since 1947.  He retired from the United States Navy 
 
         in 1969.  Several months later, claimant commenced his employment 
 
         with defendant-employer.
 
         At the hearing claimant was 62 years old.  Claimant exhibited 
 
         extraordinary efforts to rehabilitate himself following his third 
 
         back surgery.  Claimant returned to work on a light duty basis 
 
         with lifting restrictions of 35 pounds from the floor and 50 
 
         pounds from the waist.  He worked without incident for six 
 
         months.  After six months, defendant-employer placed claimant on 
 
         the disabled employee list.  The vocational expert, who was hired 
 
         by defendants, testified that he did not advise his client to 
 
         terminate claimant from his employment.  Claimant displayed 
 
         uncommon motivation in rehabilitating himself so he could return 
 
         to his former job.
 
         A vocational rehabilitation consultant assisted claimant after 
 
         his employment status was terminated.  The consultant was unable 
 
         to obtain employment for claimant in the Dubuque area.  The 
 
         consultant testified that at best, in the future, he could find 
 
         entry level employment for claimant.  At the time of the hearing, 
 
         claimant was unemployed.  Numerous efforts by the vocational 
 
         consultant to return claimant to work with defendant-employer 
 
         were fruitless.