Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
             
 
            GLENN A STUBBS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 922117
 
            HETTINGA EQUIPMENT COMPANY,     
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            AMERICAN MANUFACTURES 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.
 
            
 
                                     ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            The Deputy Commissioner erred in finding that the Claimant 
 
            sustained a work-related cumulative injury to his right 
 
            shoulder on July 17, 1990.
 
            The Deputy Commissioner erred in finding that the Claimant 
 
            sustained a 25% industrial Disability to the body as a whole 
 
            as a result of his cumulative injury of July 17, 1990.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed December 5, 1991 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed December 5, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Defendants do not dispute that claimant sustained an 
 
            injury to his left shoulder and left knee which arose out of 
 
            and in the course of his employment with employer and that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            such injury resulted in temporary disability.  However, they 
 
            dispute the extent of claimant's entitlement to weekly 
 
            compensation for temporary total disability benefits.
 
            
 
                 Iowa Code section 85.33(1) provides that an employer 
 
            shall pay temporary total disability benefits until the 
 
            employee has either returned to work or is medically capable 
 
            of returning to employment substantially similar to the 
 
            employment which he was engaged at the time of the injury, 
 
            whichever occurs first.
 
            
 
                 The record clearly indicates that claimant was injured 
 
            on July 3, 1989, and medically determined unable to work 
 
            during a course of temporary treatment and recuperation.  He 
 
            was released to return to work on July 13, 1989, without 
 
            restrictions.
 
            
 
                 ***** Claimant is entitled to ***** temporary total 
 
            disability benefits from July 7 through July 13, 1989, at 
 
            the rate of $321.64 per week.  Claimant's July 3, 1989, 
 
            injury did not result in any permanent impairment.
 
            
 
                 The next issue to be determined is whether claimant 
 
            gradually developed a right shoulder impairment from work 
 
            activity performed over a period of time which finally 
 
            compelled him to leave work and undergo surgery on July 17, 
 
            1990.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 17, 1990, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The record clearly indicates that prior to July 17, 
 
            1990, claimant was asymptomatic.   Although claimant has a 
 
            history of numerous aches and pains, at no time prior to 
 
            July 17, 1990, was he unable to perform his work activities 
 
            due to right shoulder pain.  In 1979, claimant commenced 
 
            working for employer as a hydraulic assembler.  This job 
 
            required repetitive arm and hand movements in the process of 
 
            tightening components with pipe wrenches.  This sustained 
 
            activity over long period of time resulted in right shoulder 
 
            problems diagnosed as a rotator cuff tear.
 
            
 
                 Claimant has met his burden of proof that he sustained 
 
            an injury on July 17, 1990, which arose out of and in the 
 
            course of his employment with employer. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 17, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 The medical evidence clearly demonstrates that claimant 
 
            had minor intermittent right shoulder problems which 
 
            intensified in February 1990.  An MRI examination in June 
 
            1990, revealed a rotator cuff tear.  Surgery was performed 
 
            by Dr. Wirtz on July 17, 1990.  Progress notes dated August 
 
            22, 1990, state as follows:
 
            
 
                 This patient has done heavy physical labor over 
 
                 the past 21 years and this activity as well as the 
 
                 incident on 7/3/89 relate to this chronic bursitis 
 
                 and impingement syndrome and tendinitis that has 
 
                 developed in the right shoulder.  These symptoms 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 that have developed relate to the surgical 
 
                 procedure and this physical therapy.
 
            
 
            (Ex. 6, p. 8).
 
            
 
                 Dr. Wirtz testified in a deposition on June 6, 1991:
 
            
 
                    Q.  Based on your training, your experience, 
 
                 your observations of Mr. Stubbs and the tests that 
 
                 you performed including the surgery, did you reach 
 
                 an opinion within a reasonable degree of medical 
 
                 certainty as to what caused the injuries which you 
 
                 treated Mr. Stubbs for?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  What is your opinion?
 
            
 
                    A.  It would be my opinion that activities of 
 
                 pulling, pushing, over shoulder height activities, 
 
                 back and forth motions of the extremities caused 
 
                 the right shoulder symptomatology to develop, 
 
                 requiring the need for the surgical management.
 
            
 
                    Q.  Would those be activities related then to 
 
                 Mr. Stubbs' employment?
 
            
 
                    A.  Yes.
 
            
 
            (Ex. 21, pp. 19-20).
 
            
 
                 Dr. Wirtz's uncontroverted testimony establishes a 
 
            causal connection between claimant's work activities and the 
 
            disability on which he now bases his claim.  Thus, claimant 
 
            has met his burden of proof in this regard.
 
            
 
                 Claimant had surgery on July 17, 1990.  Dr. Wirtz 
 
            released him to return to work on October 11, 1990.  
 
            Therefore, claimant is entitled to healing period benefits 
 
            pursuant to Iowa Code section 85.34(1) from July 17, 1990 
 
            through October 10, 1990.
 
            
 
                 The next issue to be determined is the extent of 
 
            claimant's entitlement to weekly compensation for permanent 
 
            disability benefits.
 
            
 
                 A shoulder injury is an injury to the body as a whole 
 
            if the injury affects the "body side" of the shoulder joint.  
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  The 
 
            agency has typically compensated shoulder injuries 
 
            industrially on the basis that such injuries involve 
 
            disability to the body as a whole.  Streeter v. Iowa Meat 
 
            Processing Co., file numbers 730461 and 809945 (App. Decn., 
 
            March 31, 1989); Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (1982); Houser v. A M 
 
            Cohron & Sons, file number 851752 (Arb. Dec., July 18, 
 
            1990).  Noting in particular that the surgical procedure 
 
            undertaken by Dr. Wirtz invaded the body side of the joint 
 
            (the acromion and deltoid were affected), it is held that 
 
            claimant's injury must be compensated industrially.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 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 
 
            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, l985).
 
            
 
                 Since there are no weighting guidelines that indicate 
 
            how each of the factors are to be considered or formulae 
 
            which can be applied and then added up to determine the 
 
            degree of industrial disability, it becomes necessary for 
 
            the deputy or commissioner to draw upon prior experience and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  In this case, several 
 
            factors are relevant.  Claimant's age plays a significant 
 
            role in this determination.  Claimant's proximity to 
 
            advanced age and consequently retirement age, affects his 
 
            industrial disability.  Claimant is near the end of his 
 
            normal work life.  Compared to a younger worker with the 
 
            same injury, claimant has lost less future earning capacity 
 
            as a result of his injury.  McClelland v. Midwest Biscuit 
 
            Co., File Number 802020, (Appeal Decision September 20, 
 
            1989).
 
            
 
                 Claimant's work experience consists primarily of manual 
 
            labor.  Employer refused to provide claimant with a job 
 
            after he was released to return to work allegedly because 
 
            they could not accommodate his restrictions.  Mrs. Hettinga 
 
            testified that the company could not afford to underwrite a 
 
            speciality position such as the one held by claimant at the 
 
            time of his injury.  She stated that since claimant could 
 
            not perform heavy work activity and refused to travel, there 
 
            was no work available which could be offered to him.  
 
            Therefore, he was laid off on October 12, 1990.  At the time 
 
            of surgery, claimant was earning $13.20 per hour.  After 
 
            October 1990, claimant collected unemployment compensation 
 
            benefits and made an extensive job search.  In July 1991, he 
 
            obtained a 40 hour week job with Atlas Company at the rate 
 
            of $6.00 an hour.  It is evident that claimant has had a 
 
            significant loss of earnings and loss of earning capacity.
 
            
 
                 In regard to claimant's functional limitations, he 
 
            testified that he has no strength in his right arm and 
 
            cannot raise his arm overhead or behind his back.  He stated 
 
            that his shoulder is weak and he can not perform any heavy 
 
            lifting.  These restrictions are not supported by the 
 
            medical evidence.  On October 10, 1990, Dr. Wirtz restricted 
 
            claimant from heavy lifting for three weeks.  No other 
 
            restrictions were imposed.  Physical therapy notes dated 
 
            October 8, 1990, indicate that claimant had full flexibility 
 
            in his arm in all motions passively and actively.  However, 
 
            Dr. Wirtz indicated that based on loss of motion and loss of 
 
            strength and using the AMA Guidelines, claimant has an 
 
            eleven percent impairment to the right upper extremity or a 
 
            seven percent impairment to the body as a whole.
 
            
 
                 After carefully considering all of the factors of 
 
            industrial disability including claimant's age, education, 
 
            past work experience, functional impairment, employer's 
 
            refusal to give claimant work after his injury, claimant's 
 
            wages prior to and after his injury, his inability to engage 
 
            in employment for which he is suited and his medical 
 
            condition prior and after surgery, it is determined that 
 
            claimant has sustained 25 percent industrial disability.  
 
            Accordingly, he is entitled to 125 weeks of permanent 
 
            partial disability benefits commencing October 11, 1990 at 
 
            the stipulated rate of $321.64 per week.
 
            
 
                 The final issue is whether claimant is entitled to 
 
            medical benefits under Iowa Code section 85.27.
 
            
 
                 Claimant has the burden of demonstrating that the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            medical services obtained were related to the injury in 
 
            order to have the expenses reimbursed or paid.  Auxier v. 
 
            Woodward State Hospital, 266 N.W.2d 139, 144 (1978).  
 
            Claimant has shown by a clear preponderance of the evidence 
 
            that he was injured while working for employer.  Claimant's 
 
            shoulder, though painful, did not prevent him from 
 
            performing his work activities prior to July 17, 1990.  When 
 
            his shoulder became so painful that he could no longer work, 
 
            he was working for employer as a hydraulic assembler.  As a 
 
            consequence, the necessary nexus has been established and 
 
            employer must provide medical benefits to claimant.  
 
            Defendant is liable for medical care provided by Dr. Zorn on 
 
            February 26 and April 23, 1990; Mercy Hospital on June 14 
 
            and July 17, 1990; Anesthesiologist Services on July 17, 
 
            1990; and physical therapy sessions by Mr. Alberhasky on 
 
            July 20, July 27, August 3 and August 10, 1990.  
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That this Division shall establish a separate file 
 
            number and litigated file (file number 997274) pertaining to 
 
            claimant's right shoulder injury of July 17, 1990.  
 
            Defendants shall file a first report of injury as to that 
 
            injury within thirty (30) days of the filing hereof.
 
            
 
                 That in file number 922117:
 
            
 
                 Defendants shall pay to claimant temporary total 
 
            disability benefits for the period July 3, 1989 through July 
 
            13, 1989.  Pursuant to Iowa Code section 85.32, compensation 
 
            shall commence on July 7 and paid for seven (7) days through 
 
            the July 13, 1989 at the stipulated rate of three hundred 
 
            twenty-one and 64/100 dollars ($321.64) per week.
 
            
 
                 That in file number 997274:
 
            
 
                 Defendants shall pay to claimant twelve point two 
 
            eighty-six (12.286) weeks of healing period benefits at the 
 
            rate of three hundred twenty-one and 64/100 dollars 
 
            ($321.64) per week for the period from July 17, 1990 through 
 
            October 10, 1990.
 
            
 
                 Defendants shall pay to claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of three hundred twenty-one and 64/100 
 
            dollars ($321.64) per week commencing October 11, 1990.
 
            
 
                 Defendants shall pay medical expenses in the amount of 
 
            four thousand seven hundred seventy dollars ($4,770.00) 
 
            incurred for treatment of claimant's July 17, 1990 injury.
 
            
 
                 Defendants shall receive credit for any benefits 
 
            previously paid.
 
            
 
                 Defendants shall pay accrued amounts in a lump sum.
 
            
 
                 Defendants shall pay interest pursuant to Iowa Code 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            section 85.30.
 
            
 
            Defendants shall pay the costs of this matter including the 
 
            transcription of the hearing.  
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by this agency.
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick W. Brick
 
            Attorney at Law
 
            550 39th Street
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Fleming Building, Ste 300
 
            PO Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1801; 5-1802; 5-1803
 
                                              Filed March 29, 1993
 
                                              Byron K. Orton
 
                                              JMI
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            GLENN A STUBBS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 922117
 
            HETTINGA EQUIPMENT COMPANY,     
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            AMERICAN MANUFACTURES MUTUAL    
 
            INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits for 
 
            time off work from July 3, 1989 through July 13, 1989 when 
 
            he injured his left shoulder and left knee in a work-related 
 
            accident.  Claimant returned to work without restrictions 
 
            and permanency was not established.
 
            
 
            5-1802; 5-1803
 
            Claimant developed a right rotator cuff tear over a period 
 
            of time which compelled him to leave work and undergo 
 
            surgery on July 17, 1990.  He was released to return to work 
 
            on October 10, 1990 but employer refused to rehire him.  
 
            Claimant was awarded healing period benefits and 125 weeks 
 
            of permanent partial disability benefits.  He was found to 
 
            be 25 percent industrially disabled.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLENN A. STUBBS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 922117
 
                                          :                997274
 
            HETTINGA EQUIPMENT COMPANY,   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURERS MUTUAL :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Glenn A. 
 
            Stubbs, claimant, against Hettinga Equipment Company, 
 
            employer, and American Manufacturers Mutual Insurance 
 
            Company, insurance carrier, to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an injury 
 
            sustained on July 3, 1989.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner on 
 
            November 20, 1991.  The record was considered fully 
 
            submitted at the close of the hearing.  The record in this 
 
            case consists of claimant's testimony and testimony from 
 
            Marian Stubbs, Jeanine Hettinga and Kristi Daugherty and 
 
            joint exhibits 1-24.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report/order and statements 
 
            received at the hearing, the parties presented the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury to his left 
 
            shoulder and knee on July 3, 1989, which caused temporary 
 
            disability and, if so, the extent thereof;
 
            
 
                 2.  Whether claimant sustained a cumulative injury to 
 
            his right shoulder commencing on July 17, 1990, arising out 
 
            of and in the course of his employment with employer;
 
            
 
                 3.  Whether the right shoulder injury is a cause of 
 
            temporary and permanent disability and, if so, the extent 
 
            thereof; and,
 
            
 
                 4.  Whether claimant is entitled to medical expenses 
 
            under Iowa Code section 85.27 for treatment of his right 
 
            shoulder injury problems.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant was born on May 26, 1933 and completed the 
 
            twelfth grade of school in 1952.  He completed a 30-week 
 
            course in electronics in 1957 after serving four years in 
 
            the United States Air Force.  His work activity has been 
 
            primarily as a factory laborer.  In 1969, he was employed as 
 
            a machine operator by Foam Molding Company.  The company was 
 
            sold ten years later and claimant commenced working for 
 
            Hettinga Equipment Company.  Claimant was assigned to the 
 
            structural-hydraulic department where he was primarily in 
 
            the machining operations.
 
            
 
                 The parties do not dispute that on July 3, 1989, 
 
            claimant was injured at work when the boom on a forklift 
 
            became dislodged and struck him on the back of the head 
 
            causing him to fall to the ground on his right side and lose 
 
            consciousness for a few minutes.  He was transported to Iowa 
 
            Methodist Medical Center Emergency Room by the Clive 
 
            Fire-Rescue Department.  In the emergency room, claimant was 
 
            treated by David G. Stilley, M.D., and attended by Steven K. 
 
            Zorn, M.D.  He had some lacerations on his scalp and a 
 
            marked contusion and abrasion of his left thigh.  X-rays 
 
            showed no evidence of fracture.  His scalp required 
 
            suturing.  Dr. Stilley first released him to return to work 
 
            on July 10, 1989, but when he was seen in follow-up on July 
 
            8 by his partner, James Delperdang, M.D., some effusion of 
 
            his left knee was still noted upon removal of his sutures 
 
            and his work release was extended to July 13, 1989.  
 
            (Exhibits 2, 4, & 5).
 
            
 
                 Claimant testified that although he was released to 
 
            return to work on July 13, 1989, the plant was closed from 
 
            July 10 to July 21, 1989, and he was on paid vacation leave 
 
            during that time.  He returned to his machining job on July 
 
            24, 1989 without any restrictions or limitations.
 
            
 
                 On August 25, 1989, claimant presented to Peter D. 
 
            Wirtz, M.D., an orthopedist, for examination.  After 
 
            conducting a physical examination, his diagnoses included:
 
            
 
                 1.  L Shoulder contusion, resolved.
 
            
 
                 2.  Left knee contusion, resolving, with thigh 
 
                 atrophy.
 
            
 
                 3.  Muscular low back pain secondary to gait 
 
                 alteration.
 
            
 
                 Dr. Wirtz prescribed an exercise program to increase 
 
            motion and strength in claimant's left knee.  He was advised 
 
            to see Tim Alberhasky for physical therapy.  Claimant saw 
 
            Mr. Alberhasky on August 25, 1989, for a physical therapy 
 
            evaluation.  There is no medical evidence of ongoing 
 
            treatment.  (Ex. 6, 7, & 21).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On November 30, 1989, S. Fred Brunk, M.D., diagnosed 
 
            claimant with lymphocytic lymphoma.  He prescribed Cytoxan 
 
            (Ex. 8-10).
 
            
 
                 Claimant testified that while taking Cytoxan, he had 
 
            relief of the pain and aching in his joints.  In February 
 
            1990, claimant felt that he was losing movement in his right 
 
            arm.  He presented to Dr. Zorn on February 26, 1990, with 
 
            pain in his right shoulder which he stated had been present 
 
            intermittently for two years.  He described it as aching in 
 
            nature, aggravated by reaching behind his back and pulling 
 
            on his belt.  On examination there was no evidence of 
 
            infection or increased warmth.  There was no tenderness over 
 
            the biceps tendon.  Dr. Zorn prescribed Voltaren.  On April 
 
            23, 1990, claimant complained of persistent right shoulder 
 
            pain.  Dr. Zorn suspected a right rotator cuff tear and 
 
            referred claimant to Dr. Wirtz for an orthopedic evaluation.  
 
            (Ex. 1, p. 19).
 
            
 
                 Claimant was seen by Dr. Wirtz on May 31, 1990.  He was 
 
            found to be tender over the right shoulder on the 
 
            anteromedial and anterolateral aspect of the bicepital 
 
            tendon.  Routine x-rays were within normal limits.  An MRI 
 
            scan was recommended and performed on June 14, 1990.  It 
 
            revealed significant damage to the rotator tendon on the 
 
            right shoulder and an impingement syndrome.  (Ex. 6, pp. 
 
            3-4; Ex. 13, p. 4).
 
            
 
                 On July 17, 1990, claimant underwent a partial right 
 
            shoulder acromioplasty, partial bursectomy and 
 
            coracoacrominal ligament release.  (Ex. 13, p. 26).
 
            
 
                 Claimant saw Dr. Wirtz for follow-up evaluation on 
 
            August 1, 1990.  He recommended a physical therapy program 
 
            for range of motion and strength on the right shoulder.  
 
            Claimant presented to Mr. Alberhasky at the Physical Therapy 
 
            and Sports Center where he underwent a therapy program from 
 
            July 23, 1990 through October 10, 1990.  (Ex. 7).
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant's last visit with Dr. Wirtz was on October 10, 
 
            1990.  At that time, he reported as follows:
 
            
 
                    This patient's forward flexion is 170/180 
 
                 degrees, external rotation 80/90 degrees, and 
 
                 internal rotation 60/70 degrees.  Abduction is 
 
                 135/135 degrees.  He is regaining strength to the 
 
                 point where he can return to duty on 10/11/90 with 
 
                 only limitations of excessive heavy lifting.
 
            
 
            (Ex. 6, p. 10).
 
            
 
                 A work release issued by Dr. Wirtz on October 10, 1990, 
 
            stated, "Return to regular duty 10/11/90, limit excessive 
 
            lifting three weeks."  (Ex. 6, p. 11).  On January 4, 1991, 
 
            Dr. Wirtz gave claimant an eleven percent impairment rating 
 
            of the right upper extremity.  (Ex. 6, p. 20).
 
            
 
                 Claimant testified that he reported to work on October 
 
            11, 1990, but was told by employer that they had no work 
 
            which would accommodate his restrictions.  On October 12, 
 
            1990, claimant was laid off.  He has not been recalled.  
 
            
 
                 Mrs. Jeanine Hettinga, president of the Hettinga 
 
            Equipment, testified that claimant was laid off because he 
 
            wanted specialized light work activity.  She stated that the 
 
            company needed a diversified individual who is willing to 
 
            travel, work overtime and perform heavy labor.  She stated 
 
            that claimant refused to travel or work overtime.  
 
            
 
                                conclusions of law
 
            
 
                 Defendants do not dispute that claimant sustained an 
 
            injury to his left shoulder and left knee which arose out of 
 
            and in the course of his employment with employer and that 
 
            such injury resulted in temporary disability.  However, they 
 
            dispute the extent of claimant's entitlement to weekly 
 
            compensation for temporary total disability benefits.
 
            
 
                 Iowa Code section 85.33(1) provides that an employer 
 
            shall pay temporary total disability benefits until the 
 
            employee has either returned to work or is medically capable 
 
            of returning to employment substantially similar to the 
 
            employment which he was engaged at the time of the injury, 
 
            whichever occurs first.
 
            
 
                 The record clearly indicates that claimant was injured 
 
            on July 3, 1989, and medically determined unable to work 
 
            during a course of temporary treatment and recuperation.  He 
 
            was released to return to work on July 13, 1989, without 
 
            restrictions.
 
            
 
                 Pursuant to Iowa Code section 85.32, compensation for 
 
            permanent partial disability benefits begins on the fourth 
 
            day of disability after the injury.  Therefore, claimant is 
 
            entitled to permanent partial disability benefits from July 
 
            7 through July 13, 1989, at the rate of $321.64 per week.  
 
            Claimant's July 3, 1989, injury did not result in any 
 
            permanent impairment.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The next issue to be determined is whether claimant 
 
            gradually developed a right shoulder impairment from work 
 
            activity performed over a period of time which finally 
 
            compelled him to leave work and undergo surgery on July 17, 
 
            1990.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 17, 1990, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The record clearly indicates that prior to July 17, 
 
            1990, claimant was asymptomatic.   Although claimant has a 
 
            history of numerous aches and pains, at no time prior to 
 
            July 17, 1990, was he unable to perform his work activities 
 
            due to right shoulder pain.  In 1979, claimant commenced 
 
            working for employer as a hydraulic assembler.  This job 
 
            required repetitive arm and hand movements in the process of 
 
            tightening components with pipe wrenches.  This sustained 
 
            activity over long period of time resulted in right shoulder 
 
            problems diagnosed as a rotator cuff tear.
 
            
 
                 Claimant has met his burden of proof that he sustained 
 
            an injury on July 17, 1990, which arose out of and in the 
 
            course of his employment with employer. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 17, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 The medical evidence clearly demonstrates that claimant 
 
            had minor intermittent right shoulder problems which 
 
            intensified in February 1990.  An MRI examination in June 
 
            1990, revealed a rotator cuff tear.  Surgery was performed 
 
            by Dr. Wirtz on July 17, 1990.  Progress notes dated August 
 
            22, 1990, state as follows:
 
            
 
                 This patient has done heavy physical labor over 
 
                 the past 21 years and this activity as well as the 
 
                 incident on 7/3/89 relate to this chronic bursitis 
 
                 and impingement syndrome and tendinitis that has 
 
                 developed in the right shoulder.  These symptoms 
 
                 that have
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            developed relate to the surgical procedure and 
 
            this physical therapy.
 
            
 
            (Ex. 6, p. 8).
 
            
 
                 Dr. Wirtz testified in a deposition on June 6, 1991:
 
            
 
                    Q.  Based on your training, your experience, 
 
                 your observations of Mr. Stubbs and the tests that 
 
                 you performed including the surgery, did you reach 
 
                 an opinion within a reasonable degree of medical 
 
                 certainty as to what caused the injuries which you 
 
                 treated Mr. Stubbs for?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  What is your opinion?
 
            
 
                    A.  It would be my opinion that activities of 
 
                 pulling, pushing, over shoulder height activities, 
 
                 back and forth motions of the extremities caused 
 
                 the right shoulder symptomatology to develop, 
 
                 requiring the need for the surgical management.
 
            
 
                    Q.  Would those be activities related then to 
 
                 Mr. Stubbs' employment?
 
            
 
                    A.  Yes.
 
            
 
            (Ex. 21, pp. 19-20).
 
            
 
                 Dr. Wirtz's uncontroverted testimony establishes a 
 
            causal connection between claimant's work activities and the 
 
            disability on which he now bases his claim.  Thus, claimant 
 
            has met his burden of proof in this regard.
 
            
 
                 Claimant had surgery on July 17, 1990.  Dr. Wirtz 
 
            released him to return to work on October 11, 1990.  
 
            Therefore, claimant is entitled to healing period benefits 
 
            pursuant to Iowa Code section 85.34(1) from July 17, 1990 
 
            through October 10, 1990.
 
            
 
                 The next issue to be determined is the extent of 
 
            claimant's entitlement to weekly compensation for permanent 
 
            disability benefits.
 
            
 
                 A shoulder injury is an injury to the body as a whole 
 
            if the injury affects the "body side" of the shoulder joint.  
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  The 
 
            agency has typically compensated shoulder injuries 
 
            industrially on the basis that such injuries involve 
 
            disability to the body as a whole.  Streeter v. Iowa Meat 
 
            Processing Co., file numbers 730461 and 809945 (App. Decn., 
 
            March 31, 1989); Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (1982); Houser v. A M 
 
            Cohron & Sons, file number 851752 (Arb. Dec., July 18, 
 
            1990).  Noting in particular that the surgical procedure 
 
            undertaken by Dr. Wirtz invaded the body side of the joint 
 
            (the acromion and deltoid were affected), it is held that 
 
            claimant's injury must be compensated industrially.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 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 
 
            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).
 
            
 
                 Since there are no weighting guidelines that indicate 
 
            how each of the factors are to be considered or formulae 
 
            which can be applied and then added up to determine the 
 
            degree of industrial disability, it becomes necessary for 
 
            the deputy or commissioner to draw upon prior experience and 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  In this case, several 
 
            factors are relevant.  Claimant's age plays a significant 
 
            role in this determination.  Claimant's proximity to 
 
            advanced age and consequently retirement age, affects his 
 
            industrial disability.  Claimant is near the end of his 
 
            normal work life.  Compared to a younger worker with the 
 
            same injury, claimant has lost less future earning capacity 
 
            as a result of his injury.  McClelland v. Midwest Biscuit 
 
            Co., File Number 802020, (Appeal Decision September 20, 
 
            1989).
 
            
 
                 Claimant's work experience consists primarily of manual 
 
            labor.  Employer refused to provide claimant with a job 
 
            after he was released to return to work allegedly because 
 
            they could not accommodate his restrictions.  Mrs. Hettinga 
 
            testified that the company could not afford to underwrite a 
 
            speciality position such as the one held by claimant at the 
 
            time of his injury.  She stated that since claimant could 
 
            not perform heavy work activity and refused to travel, there 
 
            was no work available which could be offered to him.  
 
            Therefore, he was laid off on October 12, 1990.  At the time 
 
            of surgery, claimant was earning $13.20 per hour.  After 
 
            October 1990, claimant collected unemployment compensation 
 
            benefits and made an extensive job search.  In July 1991, he 
 
            obtained a 40 hour week job with Atlas Company at the rate 
 
            of $6.00 an hour.  It is evident that claimant has had a 
 
            significant loss of earnings and loss of earning capacity.
 
            
 
                 In regard to claimant's functional limitations, he 
 
            testified that he has no strength in his right arm and 
 
            cannot raise his arm overhead or behind his back.  He stated 
 
            that his shoulder is weak and he can not perform any heavy 
 
            lifting.  These restrictions are not supported by the 
 
            medical evidence.  On October 10, 1990, Dr. Wirtz restricted 
 
            claimant from heavy lifting for three weeks.  No other 
 
            restrictions were imposed.  Physical therapy notes dated 
 
            October 8, 1990, indicate that claimant had full flexibility 
 
            in his arm in all motions passively and actively.  However, 
 
            Dr. Wirtz indicated that based on loss of motion and loss of 
 
            strength and using the AMA Guidelines, claimant has an 
 
            eleven percent impairment to the right upper extremity or a 
 
            seven percent impairment to the body as a whole.
 
            
 
                 After carefully considering all of the factors of 
 
            industrial disability including claimant's age, education, 
 
            past work experience, functional impairment, employer's 
 
            refusal to give claimant work after his injury, claimant's 
 
            wages prior to and after his injury, his inability to engage 
 
            in employment for which he is suited and his medical 
 
            condition prior and after surgery, it is determined that 
 
            claimant has sustained 25 percent industrial disability.  
 
            Accordingly, he is entitled to 125 weeks of permanent 
 
            partial disability benefits commencing October 11, 1990 at 
 
            the stipulated rate of $321.64 per week.
 
            
 
                 The final issue is whether claimant is entitled to 
 
            medical benefits under Iowa Code section 85.27.
 
            
 
                 Claimant has the burden of demonstrating that the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            medical services obtained were related to the injury in 
 
            order to have the expenses reimbursed or paid.  Auxier v. 
 
            Woodward State Hospital, 266 N.W.2d 139, 144 (1978).  
 
            Claimant has shown by a clear preponderance of the evidence 
 
            that he was injured while working for employer.  Claimant's 
 
            shoulder, though painful, did not prevent him from 
 
            performing his work activities prior to July 17, 1990.  When 
 
            his shoulder became so painful that he could no longer work, 
 
            he was working for employer as a hydraulic assembler.  As a 
 
            consequence, the necessary nexus has been established and 
 
            employer must provide medical benefits to claimant.  
 
            Defendant is liable for medical care provided by Dr. Zorn on 
 
            February 26 and April 23, 1990; Mercy Hospital on June 14 
 
            and July 17, 1990; Anesthesiologist Services on July 17, 
 
            1990; and physical therapy sessions by Mr. Alberhasky on 
 
            July 20, July 27, August 3 and August 10, 1990.  
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 This Division shall established a separate file number 
 
            and litigated file (file number 997274) pertaining to 
 
            claimant's right shoulder injury of July 17, 1990.  
 
            Defendants shall file a first report of injury as to that 
 
            injury within thirty (30) days of the filing hereof.
 
            
 
                 In file number 922117:
 
            
 
                 Defendants shall pay to claimant temporary total 
 
            disability benefits for the period July 3, 1989 through July 
 
            13, 1989.  Pursuant to Iowa Code section 85.32, compensation 
 
            shall commence on July 7 and paid for seven (7) days through 
 
            the July 13, 1989 at the stipulated rate of three hundred 
 
            twenty-one and 64/100 dollars ($321.64) per week.
 
            
 
     
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            In file number 997274:
 
            
 
                 Defendants shall pay to claimant twelve point two 
 
            eighty-six (12.286) weeks of healing period benefits at the 
 
            rate of three hundred twenty-one and 64/100 dollars 
 
            ($321.64) per week for the period from July 17, 1990 through 
 
            October 10, 1990.
 
            
 
                 Defendants shall pay to claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of three hundred twenty-one and 64/100 
 
            dollars ($321.64) per week commencing October 11, 1990.
 
            
 
                 Defendants shall pay medical expenses in the amount of 
 
            four thousand seven hundred seventy dollars ($4,770.00) 
 
            incurred for treatment of claimant's July 17, 1990 injury.
 
            
 
                 Defendants shall receive credit for any benefits 
 
            previously paid.
 
            
 
                 Defendants shall pay accrued amounts in a lump sum.
 
            
 
                 Defendants shall pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants shall pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by this agency.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Patrick W Brick
 
            Attorney at Law
 
            550 39th Street
 
            Des Moines Iowa 50312
 
            
 
            Mr Paul C Thune
 
            Attorney at Law
 
            Fleming Building Ste 300
 
            PO Box 9130
 
            Des Moines Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1801; 5-1802; 5-1803
 
                                          Filed December 5, 1991
 
                                          JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLENN A. STUBBS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 922117/997274
 
            HETTINGA EQUIPMENT COMPANY,   :
 
                                          :       A R B I T R A T I O N
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURERS MUTUAL :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits for 
 
            time off work from July 3, 1989 through July 13, 1989 when 
 
            he injured his left shoulder and left knee in a work-related 
 
            accident.  Claimant returned to work without restrictions 
 
            and permanency was not established.
 
            
 
            5-1802; 5-1803
 
            Claimant developed a right rotator cuff tear over a period 
 
            of time which compelled him to leave work and undergo 
 
            surgery on July 17, 1990.  He was released to return to work 
 
            on October 10, 1990 but employer refused to rehire him.  
 
            Claimant was awarded healing period benefits and 125 weeks 
 
            of permanent partial disability benefits.  He was found to 
 
            be 25 percent industrially disabled.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL SPENGLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 922193
 
            LEE GRIPP TRANSFER CO.,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            Spengler against Lee Gripp Transfer Co., employer, and 
 
            National Union Fire Insurance Company, insurance carrier, as 
 
            defendants.  Claimant seeks to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an injury 
 
            which occurred on July 12, 1989.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on August 21, 1991, at Davenport, Iowa.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant and Debbie Van Blaricom; claimant's exhibits A, 
 
            B, C and D; and defendants' exhibits 1 through 10.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, the following issues were presented 
 
            for resolution:
 
            
 
                 1.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and,
 
            
 
                 2.  Claimant's correct workers' compensation rate.
 
            
 
                 The parties have stipulated that claimant's gross 
 
            weekly earnings at the time of his injury were $265 per 
 
            week.  The main point of contention is whether claimant is 
 
            entitled to one exemption or two exemptions.  The parties 
 
            stipulated that claimant was single at the time of his 
 
            injury.  He is the noncustodial parent of a minor son and 
 
            has been ordered to pay monthly child support.  Claimant has 
 
            not regularly fulfilled his obligation and defendants argue 
 
            that since he has not, in fact, paid support to the child, 
 
            he should be precluded from claiming the child as an 
 
            exemption.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, and having presided at the hearing, finds 
 
            the following facts:
 
            
 
                 Claimant was born on September 25, 1952.  He was 
 
            married in 1975, is the father of a son who was born in 
 
            1976, and was divorced in 1979.  Claimant stated that on 
 
            July 11, 1989, his son was still a minor.  Claimant 
 
            testified that he contributed "a little" to the support and 
 
            care of his son, and that on Christmas and on his birthday, 
 
            he would give him money.  Periodically, claimant provided 
 
            his son with materials for school.
 
            
 
                 While claimant was receiving workers' compensation 
 
            benefits due to the injury he sustained on July 12, 1989, 
 
            the child support recovery unit was garnishing a portion of 
 
            the benefits.  Claimant stated that he is approximately 
 
            $36,000 behind in child support payments.  His monetary 
 
            obligation to his son is approximately $280 per month.
 
            
 
                 Claimant finished the eleventh grade in high school and 
 
            did not graduate.  He entered the U.S. Army in November 1970 
 
            and was discharged in December 1971.  His assignments while 
 
            in the army consisted of washing tanks and guard duty.
 
            
 
                 Once released from the army, claimant began work as a 
 
            brick laborer in Bennett, Iowa.  Claimant described his 
 
            duties as lifting and stocking bricks and cement blocks, 
 
            constructing scaffolding, mixing concrete and cement and 
 
            striking creases.  He worked as bricklayer between 1971 and 
 
            1973 and earned $3.50 per hour.
 
            
 
                 Claimant's next employment was with the Rock Island 
 
            Arsenal, where he drove a flat-bed truck.  He described his 
 
            employment as involving some lifting, but not an extensive 
 
            amount of overhead lifting.  He worked for eight months 
 
            during 1973, was laid off, and earned $4.05 per hour.
 
            
 
                 Claimant then returned to his employment as a 
 
            bricklayer and worked as a handyman for various farmers in 
 
            the community.
 
            
 
                 From 1973 through 1978, claimant worked for 
 
            approximately five employers, with most of his employment 
 
            focusing on heavy laborer-type of positions.  Wages earned 
 
            ranged from $4.00 to $8.50 per hour.
 
            
 
                 In 1978, claimant was hired by the Chicago-Northwestern 
 
            Railroad in Cedar Rapids, Iowa.  He worked as a 
 
            switchman/brakeman and described the employment as heavy 
 
            labor.  He earned $15.50 per hour and was fired in March 
 
            1981.  Thereafter, claimant held a variety of positions with 
 
            different companies and was either fired or laid off from 
 
            each employment.  Additionally, claimant testified that he 
 
            periodically would work as a farm laborer.
 
            
 
                 In 1989, claimant was hired by defendant employer.  His 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            job duties included moving furniture and he earned $6.00 per 
 
            hour.  On July 12, 1989, claimant along with a coworker, 
 
            John Naugton, were moving furniture into a house.  They 
 
            picked up a dresser, which claimant described as "super 
 
            heavy", and started to move it into the house.  As claimant 
 
            proceeded to turn a corner he hit a thermostat with his 
 
            neck.  He worked the remainder of the day and went home.  He 
 
            stated that his neck hurt the entire night and he was unable 
 
            to sleep.  He worked the next day, but the following day was 
 
            unable to get out of bed.
 
            
 
                 Claimant first sought medical treatment from K. 
 
            Ahlborn, M.D., who treated claimant with medications and 
 
            recommended bed rest.  He ordered x-rays on July 14, 1989, 
 
            which showed no acute bony abnormalities (defendants' 
 
            exhibit 5, page 15).
 
            
 
                 Claimant was referred to Charles Cassel, M.D., who 
 
            began treating claimant on July 20, 1989.  Subjective 
 
            complaints included numbness and tingling in the fingers and 
 
            hand.  Dr. Cassel noted that shoulder x-rays were negative.
 
            
 
                 Upon examination, claimant displayed weak triceps and 
 
            biceps reflexes on the right side and painful motion of the 
 
            right shoulder.  Dr. Cassel diagnosed a cervical disc with 
 
            right C-7 radiculopathy.  He prescribed medications, a neck 
 
            collar, home traction and bed rest.
 
            
 
                 Claimant returned to Dr. Cassel on July 24, 1989, and 
 
            stated that he was feeling less pain.  He continued with 
 
            absent right triceps reflexes and a weak biceps reflex.  
 
            Claimant was referred to Richard A. Roski, M.D. (def. ex. 6, 
 
            page 16).
 
            
 
                 Dr. Roski treated claimant from August 7, 1989 through 
 
            November 5, 1990.
 
            
 
                 Upon his initial examination, Dr. Roski noted decreased 
 
            range of motion in the neck and a slight weakness of the 
 
            right triceps muscle.  He also noted positive Tinel's sign 
 
            at both ulnar nerves, but negative at the wrists.  He 
 
            recommended an EMG at the right upper extremity and an MRI 
 
            of the neck.
 
            
 
                 In Dr. Roski's notes, dated August 16, 1989, state that 
 
            the MRI was "not terribly positive" and the EMG was 
 
            "minimally consistent" for findings of nerve root 
 
            involvement at level C-7. He still noted a weakness in the 
 
            right triceps muscle and slight hypesthesia in the dorsum of 
 
            the hand.  He recommended further treatment in physical 
 
            therapy with cervical traction.  He also prescribed 
 
            Voltaren, Cytotec and Flexeril (Def. Ex. 1, p. 2).
 
            
 
                 Claimant continued to see Dr. Roski through August and 
 
            September of 1989, and encouraged claimant to seek a second 
 
            opinion from Vincent C. Traynelis, M.D., at the University 
 
            of Iowa.  On December 28, 1989, both Dr. Traynelis and Dr. 
 
            Roski recommended surgery at the C6-7 level.  On February 5, 
 
            1990, claimant was admitted for surgery, but upon evaluation 
 
            in the hospital his triceps strength was "markedly improved, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            essentially being back to normal."  Residual numbness was 
 
            improving and in view of the improvement, the surgery was 
 
            canceled.  Claimant continued to seek treatment from Dr. 
 
            Roski through February and April of 1990.  (Def. Ex. 1, p. 
 
            3).  
 
            
 
                 In May of 1990, Dr. Roski made the following notation:
 
            
 
                 The patient's strength is now returned to 
 
                 essentially normal.  He even has some return of 
 
                 his tricep reflex.  He still has some occasional 
 
                 pain, particularly with working overhead but 
 
                 otherwise appears stable.  He has had a functional 
 
                 capacity evaluation done.  It did not appear from 
 
                 that that he will be able to return to his 
 
                 previous employment.  We plan to have him remain 
 
                 on disability until they can find some other type 
 
                 of work for him to return to.
 
            
 
            (Def. Ex. 1, p. 4)
 
            
 
                 Dr. Roski continued to oversee claimant's physical 
 
            progress through July and October 1990.  On November 5, 
 
            1990, Dr. Roski formed the following opinion:
 
            
 
                 The patient was back in for re-evaluation.  On 
 
                 examination there is still an absence of his right 
 
                 tricep reflex. He continues to notice some 
 
                 difficulty with strength in that arm although he 
 
                 does quite well on gross muscle testing.  We had a 
 
                 long discussion about the problem.  He does not 
 
                 request any consideration of surgical intervention 
 
                 at this time.  We plan to get a repeat functional 
 
                 capacity evaluation to assess more fully as far as 
 
                 weight capacities.  His disability rating would be 
 
                 6% for symptomatic unoperated cervical disc and 
 
                 approximately 10% of the upper extremity because 
 
                 of C7 root involvement, that would add an 
 
                 additional 6% of the whole person.
 
            
 
            (Def. Ex. 1, p. 4)
 
            
 
                 Further testing revealed that claimant was able to 
 
            carry, lift, push and pull 35-50 pounds occasionally, and 
 
            zero to 34 pounds frequently.  Claimant is able to lift ten 
 
            pounds overhead (claimant ex. A, p. 1).  
 
            
 
                 From July 16, 1990 to March 25, 1991, claimant 
 
            underwent vocational rehabilitation with the Iowa State 
 
            Vocational Rehabilitation facility.  This exhibit notes 
 
            claimant's difficulty in securing a stable residence, which 
 
            made it difficult to render effective counseling.  Although 
 
            the overall assessment of claimant's perception of his 
 
            functional limitations was inconsistent with a review of his 
 
            medical restrictions, the counselors noted that claimant's 
 
            physical limitations did restrict his vocational pursuits 
 
            and that he would be unable to return to work as a furniture 
 
            mover.  Also noted in the vocational rehabilitation notes is 
 
            claimant's concern with his financial situation, most 
 
            notably the delinquent child support payments and student 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            loan obligations.  It was also noted that claimant's 
 
            driver's license had been suspended which also produced an 
 
            obstacle in obtaining gainful employment (Cl. Ex. C, pp. 
 
            41-44).  
 
            
 
                 While at the vocational rehabilitation facility 
 
            claimant underwent numerous evaluations from September 7, 
 
            1990 through September 28, 1990.  Specifically, claimant 
 
            underwent a psychological evaluation which noted 
 
            intellectual functioning within the average range.  It was 
 
            expected that claimant would be capable of two years of 
 
            college training and that given claimant's vocational 
 
            potentials and limitations, he could explore new fields for 
 
            employment purposes (Def. Ex. 7, pp. 19-20).  
 
            
 
                 After repeated testing, claimant was not recommended 
 
            for the business/clerical occupations; he was not 
 
            recommended for an occupation in the health field based on 
 
            physical capability and social skills; and, he received a 
 
            "very marginal recommendation" for the electronics field, 
 
            focusing on the mechanics vocation.  The very marginal 
 
            recommendation stemmed from claimant's inability to 
 
            concentrate for an extended period of time on any one task 
 
            and from the physical limitations which may require 
 
            selective placement with employers.  In summation, it 
 
            appears that claimant's ineptness at displaying the proper 
 
            social skills necessary to obtain and maintain suitable 
 
            employment were limited.  Additionally, physical limitations 
 
            would hinder his placement in a proper vocation (Def. Ex. 7, 
 
            pp. 17-31).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is wether claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 
 
            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 injury claimant was 36 years of age.  
 
            His work experience consisted of both heavy and light 
 
            labor-type jobs.  Although claimant had worked for the 
 
            defendant employer as a furniture mover for approximately 
 
            one month prior to the injury, the evidence suggests that he 
 
            had had additional experience as a furniture mover prior to 
 
            his employment with the defendant.  
 
            
 
                 Since that accident, claimant has contacted 28 
 
            employers in the two months prior to the hearing.  Most of 
 
            these employers were not hiring any personnel at the time 
 
            claimant contacted them (def. ex. 10).  The defendant 
 
            employer was contacted by the claimant in July of 1990 when 
 
            he inquired about potential employment.  Claimant was not 
 
            rehired by the employer, nor did the employer take steps to 
 
            provide claimant with any rehabilitation,  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 As indicated by the vocational rehabilitation records 
 
            claimant is of average intelligence.  Emotionally, claimant 
 
            displayed some inability to conduct himself in a manner 
 
            which was in accordance with the proceedings being held.  
 
            This type of behavior is supported by the rehabilitation log 
 
            and various counselors' concerns about his behavior.  
 
            Physically, claimant displayed no discomfort during the 
 
            proceeding.  However, it is noted that claimant must now be 
 
            placed in an employment situation which will accommodate his 
 
            physical restrictions as set out by Dr. Roski.
 
            
 
                 Defendants made the point that claimant has had a very 
 
            unstable work history and that in the four years preceding 
 
            claimant's injury, his average income was $3,689.97.  Other 
 
            then the position he held with the railroad, where he earned 
 
            $15.50 per hour, claimant's best employment has been his 
 
            weekly workers' compensation benefits.  
 
            
 
                 The case presents two major problems.  First, given the 
 
            medical restrictions placed on claimant, it has been stated 
 
            that he is unable to return to employment as a furniture 
 
            mover.  Moreover, claimant could probably not return to work 
 
            as a construction worker, a bricklayer, farm laborer or any 
 
            type of work requiring heavy lifting.
 
            
 
                 Yet, it cannot be concluded that claimant is 
 
            unemployable in the competitive labor market.  His lack of 
 
            motivation to find suitable employment and his seemingly 
 
            intentional reluctance to take seriously any type of 
 
            vocational retraining, surely limits his ability to earn a 
 
            living.
 
            
 
                 Likewise, his employment history raises questions as to 
 
            claimant's desire to attain and maintain a job that supplies 
 
            enough income so that he can take care of himself and his 
 
            family obligations.
 
            
 
                 Claimant has sustained an injury that has certainly 
 
            impaired his capacity to earn a living, however, claimant is 
 
            able to work and also possesses the necessary intellect to 
 
            undergo vocational retaining.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained a 40 percent industrial disability.
 
            
 
                 The last issue to be resolved is claimant's correct 
 
            workers' compensation rate.  
 
            
 
                 Claimant argues that he is entitled to two exemptions, 
 
            one for himself and one for his minor child.  Defendants 
 
            argue that claimant is not entitled to claim the child as an 
 
            exemption because claimant has failed to provide child 
 
            support for a number of years.  
 
            
 
                 The long-standing policy of the agency is that a 
 
            claimant under a court order to pay child support is 
 
            entitled to an exemption for his natural children who does 
 
            not live with him even though he fails to pay child support.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            See, Biggs v. Donner, II Iowa Industrial Commissioner 
 
            Report 34, 38 (App. Dec. 1982).  
 
            
 
                 As a result, claimant is entitled to two exemptions and 
 
            his proper workers' compensation rate, according to the July 
 
            1, 1989, Guide to Iowa Workers' Compensation claim handling 
 
            book, is $170.98.  
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for two hundred (200) weeks at the rate 
 
            of one hundred seventy and 98/100 dollars ($170.98) per week 
 
            commencing May 14, 1990.
 
            
 
                 That defendants shall pay accrued amounts in a lump sum 
 
            and shall receive credit against the award for weekly 
 
            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 proceeding 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, IA  52801
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, IA  52801
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803 51900
 
                      Filed October 21, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL SPENGLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 922193
 
            LEE GRIPP TRANSFER CO.,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803
 
            Claimant, a 39-year-old man, injured his neck while moving 
 
            furniture.  Objective findings showed a weak disc at C6-7 
 
            which produced biceps weakness in right arm.
 
            Claimant's lifting restrictions were such that he was unable 
 
            to return to work as a furniture mover or any heavy labor 
 
            position.
 
            The employer provided no offer of employment, nor did they 
 
            provide vocational rehabilitation.
 
            Claimant displayed little motivation to find gainful 
 
            employment, although underwent state-assisted vocational 
 
            rehabilitation.  He displayed little aptitude for jobs which 
 
            would accommodate his work/lifting restrictions.
 
            
 
            51900
 
            Although claimant had not paid child support for more than 
 
            ten years, he was under a court order to do so, and was 
 
            allowed the exemption for purposes of calculating his rate.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RICHARD LEHNERTZ,             :
 
                                       :         File No. 922334
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Richard Lehnertz, against the Second Injury Fund of 
 
         Iowa, defendant.  On March 7, 1991, the undersigned approved an 
 
         agreement for settlement between claimant and Dickey Trucking 
 
         Company, employer, and its insurance carrier, The Travelers 
 
         Insurance Company.  It is noted that the Second Injury Fund was 
 
         not a party to the agreement.
 
         
 
              In the aforementioned Agreement for Settlement, among other 
 
         things, the parties agreed in paragraph 10 that:
 
         
 
                 10.  The parties are agreed that the Claimant has 
 
              sustained an industrial disability impairment to the 
 
              extent of 10% loss of use of the left upper extremity 
 
              thereby entitling the Claimant to 25 weeks of weekly 
 
              compensation at the rate of $263.88 for a total of Six 
 
              Thousand Five Hundred Ninety Seven and No/l00ths 
 
              Dollars ($6,597.00) to be paid in a lump sum.
 
         
 
              Claimant then proceeded with his claim against the Second 
 
         Injury Fund hereinafter referred to as "The Fund."  The case was 
 
         set for hearing in the Dubuque County Courthouse on January 6, 
 
         1992 at 3:30 p.m.
 
         
 
              At the hearing claimant's attorney appeared.  In addition, 
 
         the Fund's attorney appeared.  Claimant, however, failed to 
 
         appear.  Claimant's attorney moved for a continuance due to the 
 
         fact his client, an over-the-road trucker, was on a run and could 
 
         not be available for the hearing.  This deputy had no authority 
 
         to grant a continuance for any reason.
 
         
 
              The prehearing deputy was contacted by telephone and the 
 
         motion for continuance was made to the prehearing deputy, who in 
 
         turn denied the motion.
 
         
 
              The case proceeded.  There were no live witnesses who testi
 
         fied for either party.  Joint exhibits 1 through 14 were admitted 
 
         as evidence.  Included in those exhibits was claimant's deposi
 
         tion of November 1, 1991.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether the Fund is 
 
         liable for any benefits pursuant to the "Second Injury 
 
         Compensation Act;" and, 2) if so, the nature and extent of those 
 
         benefits.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant sustained a work-related injury to his right shoul
 
         der on August 9, 1983.  Claimant was working as a laborer at the 
 
         time.  The injury involved a tear to the right rotator cuff.  A 
 
         claim was filed with the Illinois Industrial Commission, 
 
         #84-WC-023117.  The claim was settled and the Illinois arbitrator 
 
         approved the settlement whereby claimant received $30,000.00 
 
         representing a 40 percent loss of use of the right arm (94 wks x 
 
         $282.25/wk = $26,531.50 and $3,468.50 for future medical 
 
         expenses.
 
         
 
              Subsequent to the aforementioned work injury, claimant had 
 
         sporadic employment.  He engaged in mowing lawns and performing 
 
         odd jobs.
 
         
 
              In 1988 claimant was employed by Dickey Trucking Company as 
 
         an over-the-road trucker.  On July 14, 1989, claimant was driving 
 
         a "big-rig" for Dickey Trucking Company when the rig was struck 
 
         by a Soo Line Railroad Company train.  Claimant sustained various 
 
         injuries including injuries to the right shoulder and right 
 
         elbow.  X-rays revealed claimant had a "nondisplaced fracture 
 
         about the olecranon."
 
         
 
              Claimant, Dickey Trucking Company and The Travelers 
 
         Insurance Company entered into the previously discussed settle
 
         ment agreement.  The Fund was not a party to the agreement.
 
         
 
              In October of 1989 claimant returned to work as an 
 
         over-the-road truck driver.  Dickey Trucking Company was not 
 
         interested in continuing claimant's employment.  Claimant then 
 
         commenced employment with Westside Unlimited Trucking.  He held 
 
         that position until he began working for ADM as an over-the-road 
 
         trucker.  Claimant has been employed with ADM since May 18, 1990.
 
         
 
                                conclusions of law
 
         
 
              Claimant alleges he is entitled to benefits pursuant to Iowa 
 
         Code section 85.63 et seq.  The language of Iowa Code section 
 
         85.64 is crucial to the determination of this case:
 
         
 
              If an employee who has previously lost, or lost the use 
 
              of, one hand, one arm, one foot, one leg, or one eye, 
 
              becomes permanently disabled by a compensable injury 
 
              which has resulted in the loss of or loss of use of 
 
              another such member or organ,...
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The determinative question in this case is whether 
 
         claimant's two injuries to the right and to the left shoulders 
 
         result in the loss or loss of use of "another such member or 
 
         organ," (ie the arms).
 
         
 
              This precise issue was recently addressed by the Industrial 
 
         Commissioner in Bevins v. Farmstead Foods and Second Injury Fund 
 
         of Iowa, File Numbers 834865, 881784, 877458, 888705, (Appeal 
 
         Decision November 26, 1991).  In Bevins, the commissioner deter
 
         mined that the Fund may be liable for benefits when an injury to 
 
         the arm extends into the body as a whole.  In such a case, a 
 
         determination must be made as to the disability caused by the 
 
         prior loss.  See:  Second Injury Fund v. Neelans, 436 N.W.2d 355 
 
         (Iowa 1989).  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
         467 (Iowa 1990).  Second Injury Fund v. Mich Coal Co., 274 N.W.2d 
 
         300 (Iowa 1979).  In order for claimant to prevail in such a sit
 
         uation against the Fund, the claimant must establish that 
 
         claimant's total overall industrial disability as a result of the 
 
         combined effect of his injuries, exceeds the disabilities from 
 
         the various injuries when viewed in isolation.  In the case at 
 
         hand, claimant has not proven that his overall industrial dis
 
         ability as a result of the combined effect of his injuries 
 
         exceeds the disabilities from the various injuries when viewed in 
 
         isolation.  Since claimant did not testify live, his deposition 
 
         of November 1, 1991, is accorded great weight.  This deputy was 
 
         unable to determine whether claimant had an industrial disability 
 
         greater than the disabilities of the various injuries.  There was 
 
         insufficient evidence to establish that claimant had an indus
 
         trial disability at all.  Since the date of claimant's last 
 
         injury, claimant had been regularly employed in the same industry 
 
         but with an increase in wages.  Claimant's age is such that 
 
         claimant plans to retire in the next few years, no matter what 
 
         occurs.  Again, this deputy is unable to determine whether 
 
         claimant has an industrial disability in any amount.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing further from these proceedings.
 
         
 
              Costs are assessed to each party.
 
         
 
         
 
         
 
              Signed and filed this ____ day of February, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. John H. Westensee
 
         Attorney at Law
 
         1705 2nd Ave
 
         Rock Island  IL  61201
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Tort Claims Division
 
         Des Moines  IA  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1402.40; 2900; 3200; 3202
 
            Filed February 26, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD LEHNERTZ,             :
 
                                          :         File No. 922334
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            2900
 
            Claimant, an over-the-road truck driver, was not granted a 
 
            continuance of his arbitration hearing.  The prehearing 
 
            deputy denied the request of claimant's attorney.  At the 
 
            time of the hearing, claimant was driving a "big rig" and 
 
            was unavailable for the hearing.
 
            
 
            1402.40
 
            Claimant failed to meet his burden of proof with respect to 
 
            any alleged benefits from the Second Injury Fund.
 
            
 
            3200; 3202
 
            The Fund argued that since the two injuries alleged were to 
 
            the shoulders and since they were considered injuries to the 
 
            body as a whole, that benefits from the Fund were 
 
            inapplicable.  This deputy determined that while the two 
 
            injuries were to the right and left shoulders, the injuries 
 
            resulted in the loss or loss of use of "another such member 
 
            or organ," (ie the arms).  The rationale of Bevins v. 
 
            Farmstead Foods and Second Injury Fund of Iowa, File Numbers 
 
            834865, 881784, 877458, 888705, (Appeal Decision November 
 
            26, 1991) was followed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            DIANE F. DAWDY,       :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 922679
 
            CURLY'S FOODS, INC.,       :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            KEMPER 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 May 8, 1991 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            Iowa Code section 86.13 states that weekly benefits 
 
            voluntarily paid by the employer do not constitute an 
 
            admission of liability.  Although the section speaks in 
 
            terms of weekly, rather than medical, benefits, the workers' 
 
            compensation system encourages the voluntary payment of 
 
            benefits.  Defendants are not estopped from asserting that 
 
            claimant's injury did not arise out of her employment simply 
 
            because some of claimant's medical bills were voluntarily 
 
            paid
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. P. D. Furlong
 
            Attorney at Law
 
            P.O. Box 3005
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Thomas Plaza
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed January 28, 1993
 
            Byron K. Orton
 
            MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            DIANE F. DAWDY,       :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 922679
 
            CURLY'S FOODS, INC.,       :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            KEMPER INSURANCE COMPANY,       :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed May 8, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DIANE F. DAWDY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  922679
 
            CURLY'S FOODS, INC.,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              Statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Diane F. 
 
            Dawdy as a result of injuries to her neck and upper 
 
            extremities which occurred on or about June 28, 1989.  
 
            Defendants denied compensability for the injury, paid no 
 
            weekly benefits and paid some medical expenses.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on April 22, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 14, 16 through 18, 15A 
 
            and testimony from claimant, Sharon Terrell, Jerry Raley, 
 
            Rita Schlotman and Robert Brady.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Arising out of and in the course of employment;
 
            
 
                 2.  Entitlement to temporary total disability or 
 
            healing period and causal connection;
 
            
 
                 3.  Nature and extent of entitlement to permanent 
 
            partial disability and causal connection;
 
            
 
                 4.  Commencement date for permanent partial disability;
 
            
 
                 5.   Untimely claim under Iowa Code section 85.26;
 
            
 
                 6.  Lack of notice under Iowa Code section 85.23; and
 
            
 
                 7.  Medical benefits entitlement under Iowa Code 
 
            section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            following findings of fact are made:
 
            
 
                 Claimant started work for employer on February 6, 1989, 
 
            as a meat packing production worker.  Claimant performed 
 
            various repetitive jobs which involved the cutting and 
 
            boxing of meat.  Claimant asserted at hearing that she 
 
            incurred a work injury on May 10, 1989 or June 28, 1989.  
 
            Claimant's petition specifically alleges June 28, 1989, as 
 
            the date of injury.  Claimant's motion to amend the injury 
 
            date to May 10, 1989, was denied as it was not in compliance 
 
            with the hearing assignment order filed September 27, 1990.
 
            
 
                 However, it is noted that Iowa case law has declared 
 
            the date of injury to be unimportant should the dates not 
 
            coincide, Yeager v. Firestone Tire and Rubber Co., 253 Iowa 
 
            369, 373-74, 112 N.W.2d 299, 301 (1961).  It is found that 
 
            the error in pleading the date of injury as May 10, 1989, as 
 
            opposed to June 28, 1989, is insignificant.  Both injury 
 
            dates will be considered in this proceeding.
 
            
 
                 Claimant alleges that on May 10, 1989, while pulling 5 
 
            to 15-pound pieces of meat out of a cardboard container, she 
 
            injured her neck in the performance of duties for employer 
 
            (exhibit 3, page 16).
 
            
 
                 Claimant testified that on that date she told a 
 
            supervisor of the injury to her neck.  Claimant stated that 
 
            she finished her work that day, but missed the following two 
 
            days of work on May 10, 1989 and May 11, 1989.  Claimant 
 
            stated that she was treated for the alleged work injury by 
 
            John P. Zortman, D.C.
 
            
 
                 Dr. Zortman recited that claimant gave no history of a 
 
            work-related neck problem until July 11, 1989 (ex. 1, p. 
 
            27).  Dr. Zortman had treated claimant for cervical and 
 
            assorted spine problems since May of 1988.  Zortman opined 
 
            that a 1963 auto accident was the likely cause of claimant's 
 
            cervical problems (ex. 1, p. 27).  It is also noted that 
 
            claimant received treatment for cervical symptoms in March 
 
            1989 some two months prior to the alleged injury (ex. 1, p. 
 
            212).  
 
            
 
                 Robert Brady testified that he is now and was the plant 
 
            manger for employer in 1989.  He reviewed claimant's payroll 
 
            records for May 11, and 12, 1989, and found that claimant 
 
            had been paid for work on both days.  He also testified that 
 
            claimant did not report a cervical spine injury in May 1989.  
 
            Instead, he stated that claimant alleged an injury to the 
 
            right upper extremity on June 28, 1989.  His first knowledge 
 
            of an allegation of a neck injury came at a November 1989 
 
            unemployment hearing which involved the claimant.
 
            
 
                 Claimant returned to work for employer in May 1989 and 
 
            continued on until June 28, 1989, when she sought treatment 
 
            for right upper extremity pain (ex. 1, p. 194).  No history 
 
            of a neck injury was recited by the examining physician on 
 
            June 28, 1989 (ex. 1, p. 194).   Claimant was again returned 
 
            to work by the treating doctor.
 
            
 
                 In the following six months claimant was examined by a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            number of medical providers.  In July 1989 most of the 
 
            doctors diagnosed carpal tunnel syndrome (ex. 1, pp. 198 and 
 
            202).  However, on July 21, 1989, EMG studies came back as 
 
            normal.  It is also noted that in July 1989 most of the 
 
            treatment centered around pain in claimant's right upper 
 
            extremity as opposed to the neck (ex. 1, pp. 198, and 
 
            200-202).
 
            
 
                 Claimant was off work starting July 8, 1989 through 
 
            October 1, 1989.  She received a release to return to light 
 
            duty work on September 5, 1989, authored by John J. 
 
            Dougherty, M.D., an orthopedic surgeon.  Claimant did not 
 
            immediately return to work as she was under care for a 
 
            personal medical problem (ex. 1, p. 107).  Claimant 
 
            eventually returned to work on October 2, 1989, and 
 
            continued with such employment until October 25, 1989, which 
 
            was her last day of work for employer.  Claimant stated that 
 
            she could no longer perform her duties at that time due to 
 
            the pain.
 
            
 
                 Claimant's alleged symptoms persisted into January 
 
            1990.  Dr. Dougherty performed carpal tunnel surgery on 
 
            claimant's right hand on January 9, 1990, and eventually 
 
            released her to return to work in February 1990.  
 
            
 
                 It is interesting to note that most medical exams and 
 
            tests performed in 1989 revealed near normal results (ex. 1, 
 
            pp. 113, 197, 198 and 200).
 
            
 
                 In May 1990, claimant was referred to Horst Blume, M.D, 
 
            by Dr. Dougherty.  The referral was at claimant's request 
 
            (ex. 1, p. 26).  Dr. Blume performed a double cervical 
 
            fusion surgery on January 15, 1991 and claimant was still 
 
            recuperating from such at the time of hearing.
 
            
 
                 The first issue to be resolved is whether claimant 
 
            sustained an injury arising out of and in the course of 
 
            employment with employer.  
 
            
 
                 The first analysis will focus on the allegation of a 
 
            cervical spine injury allegedly sustained on May 10, 1989, 
 
            while lifting meat out of a cardboard container.  It is 
 
            claimant's burden to prove by a preponderance of the 
 
            evidence that she sustained such an injury on May 10, 1989.  
 
            It is found that claimant has failed to meet her burden in 
 
            proving that an injury occurred on May 10, 1989.  The 
 
            reasoning follows:
 
            
 
                 First, claimant gave inconsistent medical histories to 
 
            the treating doctors in June and July 1989.  Medical 
 
            histories are generally given great weight as the 
 
            information is collected by unbiased trained professionals 
 
            who use the information for medical treatment.  The lack of 
 
            a medical history noting a May 10, 1989, injury casts 
 
            considerable doubt on claimant's allegations.
 
            
 
                 Second, claimant has been treating for cervical 
 
            problems for a year prior to the alleged injury (ex. 1, p. 
 
            27).  She had also been taken off work for cervical 
 
            complaints just two months prior to the alleged injury (ex. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1, p. 212).  The doctor who treated claimant for a year 
 
            prior to the injury opined that a 1963 auto accident was the 
 
            most likely cause of the cervical complaints (ex. 1, p. 27).  
 
            Claimant's failure to disclose the extensive prior cervical 
 
            treatment and the 1965 auto accident in answers to 
 
            interrogatories also casts doubt on claimant's allegation of 
 
            a May 10, 1989, injury.
 
            
 
                 Next, claimant was able to work for about six weeks 
 
            subsequent to the alleged neck injury before requesting 
 
            additional medical care.  Claimant's ability to continue 
 
            performing duties during that period weighs against a 
 
            finding of an injury.
 
            
 
                 Finally, claimant gave in consistent medical histories 
 
            to many medical providers.  Claimant completely failed to 
 
            reveal her numerous preexisting cervical problems to Dr. 
 
            Blume, her chosen treating physician, as demonstrated by the 
 
            history that claimant had no symptoms prior to working at 
 
            Curly's Foods (ex. 1, p. 12).  Claimant is found to be an 
 
            unreliable historian.
 
            
 
                 The numerous inconsistencies in claimant's story and 
 
            the deletion of pertinent information from medical histories 
 
            and interrogatory answers leads to the conclusion that 
 
            claimant failed to prove by a preponderance of the evidence 
 
            that she sustained an injury to her cervical spine on May 
 
            10, 1989, arising out of and in the course of employment.
 
            
 
                 The next issue to be addressed is whether claimant 
 
            sustained an injury on June 28, 1989, arising out of and in 
 
            the course of employment.  Claimant did allege pain in her 
 
            upper extremities and shoulders which originated on June 28, 
 
            1989.  Claimant did not specify any traumatic injury that 
 
            occurred on that date.  It is possible that the extremity 
 
            pain was the result of a cumulative trauma.  It is also true 
 
            that claimant was diagnosed with and had surgery for carpal 
 
            tunnel syndrome of the right hand.
 
            
 
                 In order to prove a cumulative trauma injury arising 
 
            out of and in the course of employment on June 28, 1989, 
 
            claimant would need to bring forth evidence proving that the 
 
            work was the cause of the upper extremity and or neck 
 
            problems.
 
            
 
                 No medical evidence was offered which would indicate 
 
            that claimant's carpal tunnel syndrome was caused by 
 
            repetitive work performed for employer in June 1989.  Nor 
 
            was there any expert medical evidence offered which causally 
 
            connects claimant's upper extremity and neck complaints to 
 
            the repetitive work performed for employer.
 
            
 
                 This lack of evidence must be considered with the other 
 
            nonwork-related repetitive activities.  Claimant stated that 
 
            prior to her alleged injuries with employer she crocheted 
 
            afghans at home for up to three to four hours every evening 
 
            (ex. 3, p. 39).  
 
            
 
                 The lack of corroborating medical evidence combined 
 
            with claimant's nonoccupational activities lead to the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusion that claimant has failed to prove by a 
 
            preponderance of the evidence that she sustained a 
 
            repetitive trauma injury arising out of her employment with 
 
            employer on June 28, 1989.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on May 10, 1989 
 
            or June 28, 1989, which arose out of and in the course of 
 
            her employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that she sustained an injury on May 10, 1989 or 
 
            June 28, 1989, arising out of and in the course of 
 
            employment.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That claimant's petition is dismissed.
 
            
 
                 That costs of this action are assessed against claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. P.D. Furlong
 
            Attorney at Law
 
            401 Commerce Bldg
 
            PO Box 3005
 
            Sioux City, Iowa  51102
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr. Thomas Plaza
 
            Attorney at Law
 
            701 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100 51400
 
                      Filed May 8, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DIANE F. DAWDY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  922679
 
            CURLY'S FOODS, INC.,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100 51400
 
            Claimant alleged an injury to her neck.  She failed to 
 
            reveal the extensive treatment for neck pain which occurred 
 
            prior to the injury when answering interrogatories and 
 
            deposition questions.  Claimant was unreliable historian at 
 
            hearing.  Treating doctors did not reveal history of prior 
 
            treatment for neck pain.
 
            Claimant failed to meet her burden of proof in proving an 
 
            injury to the neck arising out of and in the course of 
 
            employment.