Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL MUMMERT,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 922964
 
            HY VEE FOOD STORES, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Paul Mummert, against his employer, Hy-Vee Food 
 
            Stores, Inc., and its insurance carrier, Employers' Mutual 
 
            Insurance Company, defendants.  The case was heard on 
 
            October 14, 1991, in Des Moines, Iowa.  The record consists 
 
            of the testimony of claimant, as well as the testimony of 
 
            John D. Darnell, store manager of the Sioux City store.  The 
 
            record also consists of joint exhibits 1-32.
 
            
 
                                      issue
 
            
 
                 The issue to be determined is:  1) the nature and 
 
            extent of any permanent partial disability.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 28 years old.  He is married and is 
 
            currently attending college at Buena Vista in Storm Lake, 
 
            Iowa.
 
            
 
                 Claimant sustained a work related injury on June 30, 
 
            1989.  At the time of his injury, claimant was an employee 
 
            in the meat department.  His job classification was meat 
 
            cutter.  He was earning $10.10 per hour and he worked 40 
 
            hours per week.
 
            
 
                 Claimant sought medical attention for a back condition 
 
            from his personal physician, Stephen J. Viet, M.D.  Dr. Viet 
 
            treated claimant conservatively.  Later, Dr. Viet referred 
 
            claimant to G. J. Durward, M.D., an orthopedic surgeon.
 
            
 
                 Dr. Durward diagnosed claimant as having a "...mild 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            central bulge at L3/4 and a large herniated extruded disk, 
 
            probable fragment, on the right side at L4/5."  (Exhibit 18, 
 
            page 1).
 
            
 
                 On July 21, 1989, Dr. Durward performed a right L4-5 
 
            microsurgical diskectomy.  Subsequent to the surgery, 
 
            claimant engaged in a rehabilitation program at Back Care, 
 
            Inc.  Leonel N. Herrera, M.D., designed claimant's 
 
            rehabilitation program.
 
            
 
                 As of October 31, 1989, claimant was released to return 
 
            to work.  He was restricted from lifting 40 pounds.  
 
            Claimant was also instructed to avoid bending.
 
            
 
                 Dr. Durward rated claimant as having a permanent 
 
            impairment of eight to ten percent.  Bernard L. Kratochvil, 
 
            M.D., also examined claimant for purposes of assessing an 
 
            impairment rating.  In his report of November 15, 1989, Dr. 
 
            Kratochvil wrote:
 
            
 
                 This man injured his back at work in June of this 
 
                 year and about a month later had surgery to remove 
 
                 an excruded (sic) disc at the L4,5 level.  He 
 
                 still has some discomfort in the back but no 
 
                 neurologic deficit.  I would expect his symptoms 
 
                 to gradually improve with further conservative 
 
                 care.  It is my opinion that he has a 10% 
 
                 permanent partial impairment of the whole man as a 
 
                 result of this injury and subsequent surgery.  I 
 
                 have no disagreement with the 40 pound weight 
 
                 lifting restriction but this has no bearing on the 
 
                 amount of permanent impairment.  As far as lifting 
 
                 is concerned, the individual has to use common 
 
                 sense in this regard, but frequently an employer 
 
                 wants to have a specific amount of weight 
 
                 restriction to determine his working capabilities.
 
            
 
            (Ex. 28, p. 2)
 
            
 
                 As of November 23, 1989, claimant tendered his letter 
 
            of resignation to defendant-employer.  His reason for 
 
            resigning was cited as:  "Back injury that caused limitation 
 
            to lifting only 40 lbs for rest of my life."  (Ex. 3, p. 1)
 
            
 
                 Subsequent to his resignation from defendant-employer's 
 
            establishment, claimant obtained employment with Holzhauer 
 
            Motors, Ltd., where he was assistant service manager.  
 
            Initially he was hired at $150.00 per week.  Later 
 
            claimant's salary was increased by $25 per week.  Claimant 
 
            left the position so he could enroll as a full time college 
 
            student.
 
            
 
                 On September 5, 1990, claimant enrolled at Tarkio 
 
            Westmar College.  Claimant transferred to Buena Vista 
 
            College in January of 1991.
 
            
 
                 Since enrolling in college, claimant has held various 
 
            temporary or part-time positions.  At the time of the 
 
            hearing, claimant was a full time student and a part-time 
 
            employee.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Peterson v. 
 
            Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
            1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
            26, 1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant has been rated as having an eight to ten 
 
            percent functional impairment.  He is to avoid bending and 
 
            to refrain from lifting more than 40 pounds.  The 
 
            restrictions are not so severe as to preclude him from all 
 
            employment.  Claimant's vocational consultant renders two 
 
            reports relative to claimant's earning capacity.  The 
 
            reports are not accorded much weight.  It is difficult for 
 
            the undersigned to accept a 72 percent loss of employability 
 
            when claimant's restrictions are as stated.
 
            
 
                 Claimant is 28 years old.  He has many years ahead of 
 
            him in the labor market.  He is to be commended for 
 
            embarking upon a college career.
 
            
 
                 Claimant had voluntarily terminated his employment with 
 
            defendant-employer.  No physician advised claimant to forego 
 
            his career as a meat cutter.  In no way did 
 
            defendant-employer request a resignation from claimant.  
 
            John D. Darnell, manager of the Sioux City Hy Vee, testified 
 
            that he offered a job to claimant but claimant refused the 
 
            offer.  Moreover, Mr. Darnell testified that claimant also 
 
            refused an offer for a position in another department.  Mr. 
 
            Darnell was a credible witness.
 
            
 
                 It is the determination of the undersigned that 
 
            claimant could have kept his employment with 
 
            defendant-employer, but that claimant, on his own, 
 
            terminated the employer-employee relationship.  It is 
 
            additionally the determination of the undersigned that 
 
            claimant has sustained a permanent partial disability in the 
 
            amount of 15 percent commencing on September 17, 1990, at 
 
            the stipulated rate of $264.86 per week.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant weekly benefits for 
 
            seventy-five (75) weeks of permanent partial disability 
 
            commencing on September 17, 1990, at the stipulated rate of 
 
            two hundred sixty-four and 86/l00 dollars ($264.86).
 
            
 
                 Defendants shall take credit for benefits previously 
 
            paid claimant.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William D. Cook
 
            Attorney at Law
 
            209 W Willow St
 
            Cherokee  IA  51012
 
            
 
            Mr. James M. Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Bldg
 
            P O Box 1828
 
            Sioux City  IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed November 18, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL MUMMERT,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 922964
 
            HY VEE FOOD STORES, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803
 
            Claimant was awarded a 15 percent permanent partial 
 
            disability.  Claimant sustained a work related injury to his 
 
            back.  Claimant is 28 years old.  He has many years ahead of 
 
            him in the labor market.  Claimant was rated as having an 
 
            eight to ten percent functional impairment.  Claimant is 
 
            restricted from lifting more than 40 pounds and to avoid 
 
            bending.  Claimant voluntarily terminated his employment 
 
            with defendant-employer, despite the employer's desire to 
 
            keep claimant employed.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         PAUL MUMMERT,                 :
 
                                       :       File No. 922964
 
              Claimant,                :
 
                                       :      R U L I N G   O N
 
         vs.                           :
 
                                       :      M O T I O N   T O
 
         HY VEE FOOD STORES, INC.,     :
 
                                       :         M O D I F Y
 
              Employer,                :
 
                                       :
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL CO.,         :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         A motion to modify arbitration decision was filed on November 22, 
 
         1991.  In its motion, defendants requested a modification of the 
 
         arbitration decision to show that:
 
         Claimant's healing period ended on October 1, 1989 and that 
 
         claimant was entitled to 75 weeks of permanent partial disability 
 
         from October 2, 1989 and that the defendants were entitled to a 
 
         credit of 50 weeks of permanent partial disability benefits 
 
         previously paid to claimant.
 
         Upon review of the motion, the undersigned determines the motion 
 
         should be approved.
 
         THEREFORE, IT IS ORDERED:
 
         Defendants' motion is approved.  Claimant's healing period ended 
 
         on October 1, 1989 and that claimant is entitled to seventy-five 
 
         (75) weeks of permanent partial disability benefits from October 
 
         2, 1989 and that defendants are entitled to a credit of fifty 
 
         (50) weeks of permanent partial disability benefits previously 
 
         paid to claimant.
 
         
 
         
 
         
 
              Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
         
 
                   ______________________________               MICHELLE 
 
         A. McGOVERN
 
                   DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. William D. Cook
 
         Attorney at Law
 
         209 W Willow St
 
         Cherokee  IA  51012
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Bldg
 
         P O Box 1828
 
         Sioux City  IA  51102
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ORVILLE CAMPBELL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  922968
 
            BLAHNIK CONSTRUCTION,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Orville 
 
            Campbell, claimant, against Blahnik Construction, employer, 
 
            and Aetna Insurance, insurance carrier, as defendants.  
 
            Claimant sustained a work-related injury on July 19, 1989.  
 
            The matter came on for hearing on September 19, 1991, at 
 
            Cedar Rapids, Iowa.  
 
            
 
                 The evidence in this case consists of the testimony of 
 
            the claimant; Donald Schueltpelz, union business agent; Earl 
 
            Bissell, project supervisor for Blahnik Construction; Robert 
 
            French, president of Blahnik Construction; and, Floyd 
 
            Sauter, Jr., iron worker foreman for Local 89.  The parties 
 
            offered and the undersigned received joint exhibits 1 
 
            through 5.  
 
            
 
                                      issues
 
            
 
                 Pursuant the prehearing report the parties present the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant is entitled to additional 
 
            temporary total or healing period benefits, or permanent 
 
            partial or permanent total disability benefits;
 
            
 
                 2.  Claimant's workers' compensation rate; and,
 
            
 
                 3.  Whether defendants are entitled to a credit for 
 
            benefits previously paid as governed by Iowa Code section 
 
            85.38(2).
 
            
 
                                        
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received and having presided at the hearing, finds 
 
            the following facts:
 
            
 
                 On July 19, 1989, as claimant was performing duties 
 
            which arose out of and in the course of his employment as a 
 
            welder, he was injured when he tried to catch himself from 
 
            falling off of scaffolding.  He sustained a torn rotator 
 
            cuff of the right shoulder.  At the time of the injury 
 
            claimant was 59 years of age.  He is right hand dominant and 
 
            has been an iron worker for the past 32 years.  
 
            
 
                 Claimant completed the sixth grade and has had no 
 
            further formal education or training.  He has not received a 
 
            GED.  
 
            
 
                 In his job as an iron worker claimant performed a 
 
            variety of duties.  Structural work performed on both 
 
            preexisting and new buildings consisted of connecting steel 
 
            beams, tying rebar and using spud wrenches to align steel 
 
            beams.  He performed these duties both on and off of the 
 
            ground.  Claimant also performed duties which required him 
 
            to set concrete precast slabs on to footings in order to 
 
            weld columns to the slabs.  At times, he was required to 
 
            help lift the precast slabs from trucks and carry them to 
 
            various work sites.  Tying rebar required an extensive 
 
            amount of bending, twisting and standing.  Claimant 
 
            performed very limited welding duties and also worked on 
 
            ground crews to help send up iron to workers connecting the 
 
            beams.  Claimant described this work as very physically 
 
            demanding.  
 
            
 
                 On July 19, 1989, claimant was working at the Pennford 
 
            Starch plant in Cedar Rapids, Iowa.  He was helping to build 
 
            a catwalk so that workers could reach certain valves located 
 
            above the floor.  Claimant was standing on the framework, 
 
            which was approximately 12 feet from the ground, when he was 
 
            knocked down by a grate swinging from a chain.  He caught 
 
            himself from falling when he grabbed the handrail with his 
 
            right hand.  Claimant felt immediate pain and soreness in 
 
            his right shoulder, arm and the right side of his neck, but 
 
            he finished work on this date.
 
            
 
                 The following day claimant called in to work and spoke 
 
            with Floyd Sauter, the iron worker foreman for the 
 
            defendant, Blahnik.  Claimant was told to report to Mercy 
 
            Hospital.  
 
            
 
                 The evidence indicates the claimant initially sought 
 
            treatment from the emergency room at Mercy Hospital in Cedar 
 
            Rapids, Iowa.  He was referred to William Roberts, M.D., at 
 
            the Iowa Musculoskeletal Center.  Claimant was scheduled for 
 
            an arthrogram, the results of which were reviewed by Dr. 
 
            Roberts on July 26, 1989.  The results confirmed his 
 
            diagnosis of a complete tear of the rotator cuff of the 
 
            right shoulder.  Claimant was scheduled for surgery to 
 
            repair the tear on August 1, 1989 (joint exhibit 1, pages 
 
            1-2).  
 
            
 
                 Claimant continued postoperatively with Dr. Roberts and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            underwent a smooth recovery from the surgery.  He received 
 
            physical therapy from August 14, 1989, and eventually 
 
            graduated to a strengthening regimen at the Work Injury 
 
            Rehabilitation Center in October of 1989 (jt. ex. 1, pp. 
 
            2-3).
 
            
 
                 In January of 1990 claimant underwent a functional 
 
            capacity assessment which noted the following limitations:
 
            
 
                 ...Orville had a functional capacity assessment 
 
                 performed which indicated his ability to overhead 
 
                 lift was limited to 15 lbs; waist to shoulder 
 
                 level of 35 lbs; level lift was 50 lbs; weight 
 
                 carry was 50 lbs.
 
            
 
                    In light of these findings, I think it would be 
 
                 appropriate to limit Orville to no overhead work 
 
                 of greater than 50 lbs and no repetitive lifting 
 
                 or carrying of greater than 40 lbs.  The patient 
 
                 is not to perform any overhead work.  I believe 
 
                 with these physical restrictions, the patient 
 
                 would not be able to return to his employment as a 
 
                 construction worker....
 
            
 
            (joint exhibit 1, page 3)
 
            
 
                 The notes from the counselor indicate the following 
 
            restrictions:
 
            
 
                 B.  Recommend the following weight and activity 
 
                 restrictions with regard to patient's present or 
 
                 future employment:
 
            
 
                 1.  Weight carry  - 50 lb.
 
            2.  Floor to waist lifting - 40 lb.
 
            3.  Waist to overhead lift - 15 lb
 
            4.  Waist to shoulder lift - 35 lb.
 
            5.  Unweighted overhead activity should be limited 
 
            to         six minute duration.
 
            6.  Weighted overhead activities should be limited 
 
            to         three minute duration.
 
            7.  Repetitive waist to overhead lifting should be           
 
            limited to 10 lb.
 
            
 
            (joint exhibit 1, page 18)
 
            
 
                 On March 1, 1990, Dr. Roberts formed an opinion that 
 
            claimant had sustained an 8 percent functional impairment 
 
            loss to the left upper extremity.  The impairment rating 
 
            transferred to a 5 percent impairment to the body as a 
 
            whole.  Dr. Roberts opined that claimant's impairment was a 
 
            result of the injury of July 19, 1989 (jt. ex. 1, p. 26).
 
            
 
                 Initially, claimant underwent vocational rehabilitation 
 
            with Principal Rehabilitation Services.  The consultant, 
 
            Nancy Branson, indicated in her initial report that:
 
            
 
                    It is my opinion, that with minimal 
 
                 transferable skills and the imposed medical 
 
                 limitations in conjunction with our inability to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 consider any union positions, it will be 
 
                 exceedingly difficult to locate any work at a 
 
                 salary comparable to Mr. Campbell's pre-injury 
 
                 wages.  However, we will explore the job market to 
 
                 the fullest extent.
 
            
 
            (joint exhibit 3, p. 4)
 
            
 
                 In April of 1990 claimant had submitted retirement 
 
            papers through the union and was unable to withdraw his 
 
            application for pension benefits.  As a result, he was 
 
            available to work only 40 hours per month on any union job.  
 
            Blahnik Construction had offered claimant a job which would 
 
            accommodate his lifting restrictions and inability to work 
 
            overhead.  This position never materialized and there is 
 
            some debate as to whether Blahnik withdrew the offer or 
 
            claimant did not accept the offer of employment.  
 
            
 
                 Finally, in July of 1991 claimant underwent testing at 
 
            the Kirkwood Community College Skill Center in Cedar Rapids, 
 
            Iowa.  For the most part, he scored poorly at the general 
 
            educational development (GED) levels in reasoning, 
 
            mathematics and language.  Aptitude for intelligence was 
 
            below average; verbal skills were below average; numerical 
 
            skills were below average; spatial, form perception and 
 
            clerical perception were all below average; finger and 
 
            manual dexterity were below average; and, motor coordination 
 
            was above average in aptitude.  A selected search for job 
 
            titles for which claimant displayed aptitude was produced 
 
            with results ranging from showgirl to utility worker.  The 
 
            job listings display approximately 180 job titles and list 
 
            various types of industries, including landscaping, dry 
 
            cleaning, food services, animal production, jewelry design, 
 
            and commercial garments, among others.  It is questionable 
 
            as to whether the majority of these job titles would be 
 
            available in the Cedar Rapids area (jt. ex. 4, pp. 1-14).  
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to additional permanent partial disability 
 
            benefits.
 
            
 
                 As claimant has sustained an injury to the body as a 
 
            whole, an evaluation of his industrial disability, in order 
 
            to determine additional permanent partial disability 
 
            benefits, is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 There is no doubt that claimant has sustained an injury 
 
            which has dramatically affected his ability to return to 
 
            employment as an iron worker.  He has very limited 
 
            transferable skills and any job titles presented to him 
 
            would probably be paid at an hourly rate markedly lower than 
 
            his earnings as an iron worker.  
 
            
 
                 However, the undersigned would be remiss if claimant's 
 
            age was not considered in arriving at his industrial 
 
            disability.  His proximity to normal retirement age and his 
 
            subsequent retirement, affects his industrial disability.  
 
            Claimant is near the end of the normal work life.  When 
 
            compared to a younger worker with the same injury, claimant 
 
            has lost less earning capacity as a result of the injury.
 
            
 
                 After considering claimant's age, his retirement, the 
 
            nature and extent of his injury, his inability to continue 
 
            working as an iron worker, and the employer's conduct in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            attempting to offer claimant suitable work, it is found that 
 
            claimant has sustained a 30 percent industrial disability.  
 
            
 
                 Although claimant's correct workers' compensation rate 
 
            was an issue at the time of the hearing, a rate stipulation 
 
            was filed on October 18, 1991, and the parties have proposed 
 
            that claimant's rate is $295.07 per week based on gross 
 
            weekly earnings of $475 and the exemptions to which claimant 
 
            is entitled (2).
 
            
 
                 The final issue to be addressed is whether defendants 
 
            are entitled to a credit for benefits previously paid as 
 
            governed by Iowa Code section 85.38(2).
 
            
 
                 Iowa Code section 85.38(2) provides that an employer 
 
            shall be credited for any amounts paid to an employee from 
 
            group plans covering nonoccupational diseases which have 
 
            been contributed to wholly or partially by the employer, 
 
            shall be credited against any compensation payments awarded.
 
            
 
                 As a result, defendants are entitled to credit for 
 
            benefits paid as set out in the prehearing report.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits of one hundred fifty (150) weeks at the 
 
            rate of two hundred ninety-five and 07/100 dollars ($295.07) 
 
            per week commencing on March 2, 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 award 
 
            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.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ    
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas M Wertz
 
            Attorney at Law
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            4089 21st Ave SW
 
            Cedar Rapids, IA  52404
 
            
 
            Mr. Thomas Shields
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, IA  52801-1987
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803
 
                      Filed October 22, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ORVILLE CAMPBELL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  922968
 
            BLAHNIK CONSTRUCTION,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803
 
            59-year-old claimant tore his right rotator cuff at work.  
 
            Lifting restrictions varied, but claimant was limited in 
 
            work he could undertake.  The employer offered work, but 
 
            claimant had already submitted retirement papers.
 
            Claimant awarded 30 percent industrial disability based on 
 
            his education (fifth grade) and other scholastic factors.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         ROGER L. JONES,               :
 
                                       :         File No. 923011
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         EATON CORPORATION,            :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Roger L. 
 
         Jones, claimant, against Eaton Corporation, self-insured, 
 
         employer, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury sustained on July 11, 
 
         1989.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner on June 27, 1991, in Council 
 
         Bluffs, Iowa.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of joint 
 
         exhibits 1-20; claimant's testimony and the testimony of Karen 
 
         Jones, Dennis Gates, Roger Smith and Bob Whitehill.
 
         
 
                                      issues
 
         
 
              Pursuant to the prehearing report and order dated June 27, 
 
         1991, the parties submitted the following issues for resolution:
 
         
 
              1.  The extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period benefits, if 
 
         defendant is liable for the injury;
 
         
 
              2.  The time off work for which claimant seeks temporary 
 
         total disability or healing period benefits;
 
         
 
              3.  The extent of entitlement to weekly compensation for 
 
         permanent disability, if defendant is liable for the injury;
 
         
 
              4.  The commencement date for permanent partial disability, 
 
         in the event such benefits are awarded;
 
         
 
              5.  Claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27; and,
 
         
 
              6.  That the disputed medical expenses were incurred for 
 
         reasonable and necessary medical treatment.
 
         
 
                                 findings of fact
 
         
 
              The undersigned has carefully considered all the testimony 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         given at the hearing, the arguments made, and the evidence con
 
         tained in the exhibits herein, and makes the following findings.
 
         
 
              The parties do not dispute that claimant slipped and fell on 
 
         an oily floor on July 11, 1989, while at work and twisted his 
 
         back.  He was seen by D. L. Bumgarner, M.D.  An x-ray was taken 
 
         and revealed advanced degenerative disc disease at the L5-Sl 
 
         level.  He was treated conservatively with muscle relaxants and 
 
         pain medication.  His symptoms did not improve and he was 
 
         referred to Michael J. Morrison, M.D.  A lumbar myelogram and CT 
 
         scan of the lumbar spine were performed on August 21, 1989, and 
 
         revealed herniation of the L4-L5 disc and advanced degenerative 
 
         disc disease at L5-Sl.  Dr. Morrison recommended surgery but the 
 
         claimant refused and asked that he be referred to someone else 
 
         for conservative therapy.  Specifically, claimant asked to be 
 
         treated by Jay J. Parsow, M.D.  Employer agreed to this treatment 
 
         and Dr. Parsow saw claimant on September 25, 1989, for evaluation 
 
         and epidural injection.  During the course of his treatment with 
 
         Dr. Parsow, claimant received facet blocks, elective nerve root 
 
         blocks and epidural injections.  He was also treated with physi
 
         cal therapy, three times per week which included ice, ultrasound, 
 
         heat and some light stretching exercises.  An MRI of the lumbar 
 
         spine taken on February 13, 1990, revealed a central/right lat
 
         eral herniated disc fragment at the L4-5 level and a Grade I 
 
         retrolisthesis at the L5/Sl (Exhibits 1 & 2)
 
         
 
              On January 3, 1990, Dr. Parsow reported as follows:
 
         
 
              Based on the Third Edition of the AMA Guides to 
 
              Evaluation of Permanent Impairment, when last seen and 
 
              evaluated for an impairment rating 12/20/89, Mr. Jones 
 
              is entitled to a whole person impairment rating of 25%.  
 
              This is based on his diagnosis of degenerative disc 
 
              disease with radiculopathy greater than six months' 
 
              duration, severe limitations in lumbar range of motion, 
 
              and motor and sensory loss on the right Sl dermatome 
 
              right Sl distribution.
 
         
 
         (Exhibit 2, page 24)
 
         
 
              Despite the permanent impairment rating, Dr. Parsow stated 
 
         that in his opinion, claimant had not yet reached maximum medical 
 
         improvement and therefore he planned to continue his physical 
 
         therapy and nerve blocks (Ex. 2, p. 24).
 
         
 
              Claimant was then referred by employer to Frank P. LaMarte, 
 
         M.D., specialist in occupational medicine, for evaluation on 
 
         April 13, 1990.  Claimant reported no significant improvement in 
 
         his symptoms at this time and related constant recurrent pain and 
 
         intermittent numbness in the right leg.  Dr. LaMarte recommended 
 
         an aggressive monitored course of low back rehabilitation to 
 
         increase the strength, flexibility and endurance of his trunk 
 
         musculature.  However, claimant reported he was in a similar 
 
         program and it did not help.  Therefore, Dr. LaMarte felt that 
 
         without proper motivation, claimant was not a candidate for his 
 
         formal low back rehabilitation program.  At this time, Dr. 
 
         LaMarte stated that:
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
              With his history it is unlikely he will show any 
 
              significant improvement of his symptoms in the near 
 
              future.  Based on the "Guides to the Evaluation of 
 
              Permanent Impairment", 3rd edition, published by the 
 
              American Medical Association, he has a 7% permanent 
 
              partial impairment of the body as a whole given for an 
 
              unoperated herniated nucleus pulposus with radicular 
 
              symptoms as a result of his reported work related 
 
              injury dated 7-11-89....
 
         
 
         (Ex. 3, p. 3)
 
         
 
              Dr. LaMarte imposed the following restrictions:
 
         
 
              1.  No lifting greater than 25 lbs.
 
         2.  No frequent or continuous bending, twisting or           
 
         stooping.
 
         3.  Due to his prolonged absence from work he should be      
 
         gradually phased back to work starting 4 hours per      
 
         day and increased one hour per day every two weeks      
 
         until he has reached 8 hours per day.
 
         
 
         (Ex. 3, p. 3)
 
         
 
              Claimant was seen by Dr. LaMarte for a follow-up evaluation 
 
         on July 11, 1990.  Claimant reported little, if any, change of 
 
         his symptoms since April 13, 1990.  He indicated, however, that 
 
         his physical therapist told him that there was some improvement 
 
         in his flexibility.  He also admitted receiving temporary relief 
 
         with epidural and nerve root blocks.  He also admitted receiving 
 
         temporary relieve with epidural and nerve root blocks.  In 
 
         assessing the claimant's condition, Dr. LaMarte stated that:
 
         
 
              Despite physical therapy on a regular basis, patient 
 
              reports no significant improvement of his symptoms dur
 
              ing the past few months....He reports that both active 
 
              and passive physical therapy recently have brought 
 
              about no subjective improvement of his back problems.
 
         
 
         (Ex. 3, p. 5)
 
         
 
              Dr. LaMarte opined that continued formal active or passive 
 
         rehabilitation is not likely to be of any significant benefit 
 
         over a well designed home exercise program with periodic monitor
 
         ing.  It was his opinion that claimant reached maximum medical 
 
         improvement on April 13, 1990.  It was also his opinion that the 
 
         degenerative changes of a lumbar spine and spondylolisthesis were 
 
         pre-existing.  In his opinion, claimant's impairment rating would 
 
         change in the event that surgical intervention is required.  
 
         However, he indicated it was impossible to tell with any medical 
 
         certainty at what point prior to April 13, 1990, claimant had 
 
         reached maximum medical improvement (Ex. 3, p. 3).
 
         
 
              Claimant testified that he was informed by employer that as 
 
         of May 31, 1990, they would no longer authorize or pay for his 
 
         treatment by Dr. Parsow.  Nevertheless, claimant continued in 
 
         treatment with Dr. Parsow because he felt that his condition was 
 
         improving with such treatment.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant testified that in August 1990, he was contacted by 
 
         Mr. Dennis Gates, human resource manager, regarding a light job 
 
         available which would accommodate his restrictions.  Claimant 
 
         testified that he did not feel that he was ready to return to 
 
         work because of his persistent symptoms.  A letter to this effect 
 
         was submitted into evidence from Cheryl Wisinski, P.T., dated 
 
         August 27, 1990.  Ms. Wisinski reported that while claimant has 
 
         made some improvement with treatment, he continues to have disc 
 
         involvement and pain in the low back and pelvis area.  She noted 
 
         he was not yet strong enough to tolerate performing work activi
 
         ties, such as any type of lifting, twisting or rotating activi
 
         ties of the low back.  In her opinion, he had not yet reached the 
 
         level that would tolerate the working environment which was being 
 
         offered to him at Eaton's (Ex. 5, p. 14).
 
         
 
              In response to employer's offer of work, Dr. Parsow reported 
 
         on August 27, 1990, that claimant is unable to return to a job 
 
         which requires lifting, twisting, bending, stooping, prolonged 
 
         sitting or standing (Ex. 8, p. 17).
 
         
 
              At the request of employer, claimant was seen by Dr. 
 
         Morrison for a follow-up evaluation on November 13, 1990.  
 
         Claimant expressed a desire to pursue conservative management and 
 
         he was instructed in the appropriate muscle stretching and flexi
 
         bility exercises, supplemented with restricted activities, and no 
 
         frequent bending over, squatting, crawling or bending to lift 
 
         objections greater than 20 pounds.  A permanent impairment rating 
 
         of 10 percent was assessed by Dr. Morrison (Ex. 1, pages 9 and 
 
         12).
 
         
 
              On December 3, 1990, Dr. Morrison reported that:
 
         
 
              I would have no quarrel with Dr. LaMarte's assessment 
 
              of Mr. Jones from his records dated April 13, 1990 that 
 
              he had reached maximum medical improvement on that 
 
              date.  Also, I would agree that Mr. Jones can return 
 
              back to a job description that follows the restrictions 
 
              previously outlined which are fairly routine to someone 
 
              suffering from a lumbar disc herniation....
 
         
 
         (Ex. 1, p. 13)
 
         
 
              On March 13, 1991, Dr. Parsow released claimant for 
 
         sedentary/light duty with some restrictions including alternating 
 
         between sitting and standing every 30 minutes, occasional lifting 
 
         of 20 pounds and frequent lifting of 10 pounds, as well as 
 
         pushing and pulling 20 pounds (Ex. 8, p. 25).
 
         
 
              Claimant testified that he returned to work on March 18, 
 
         1991.  He was offered a job in the service area.  Mr. Roger 
 
         Smith, service clerk expeditor and claimant's supervisor on March 
 
         18, 1991, testified at the hearing.  He stated that the job 
 
         offered claimant was light duty work with restricted bending and 
 
         stooping.  He stated that claimant was only expected to do what 
 
         he physically felt he was able to do.  According to Mr. Smith, 
 
         claimant never complained of pain in his back or legs.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant testified that on May 28, 1990, he lifted a 32 
 
         pound part and aggravated his back problem.  That same day, Dr. 
 
         Parsow took claimant off work (Ex. 8, p. 28).  Claimant testified 
 
         that he has not returned to work since May 28, 1991.
 
         
 
              From March 18 through May 28, 1991, claimant worked four 
 
         hours a day.  He was paid workers' compensation benefits but due 
 
         to a misunderstanding of the regulations, he was not paid any 
 
         wages.  On the day of the hearing, he was presented with a check 
 
         for $2,254.72 in wages for the period of employment from March 18 
 
         through May 28, 1991.
 
         
 
                                conclusions of law
 
         
 
              The parties do not dispute that claimant sustained an injury 
 
         on July 11, 1989, which arose out of and in the course of employ
 
         ment and that the alleged injury is a cause of temporary disabil
 
         ity during a period of recovery.  The parties do dispute the 
 
         extent of entitlement to weekly compensation for temporary dis
 
         ability or healing period benefits.  The parties stipulate that 
 
         claimant's work injury is a cause of permanent disability.
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              The record clearly demonstrates that claimant reached maxi
 
         mum medical improvement on April 13, 1990.  At that time, Dr. 
 
         LaMarte gave claimant a seven percent permanent partial impair
 
         ment of the body as a whole for an unoperated herniated nucleus 
 
         pulposus with radicular symptoms (Ex. 3, p. 3).  This assessment 
 
         was affirmed by Dr. Morrison who reported on December 3, 1990, 
 
         that "I would have no quarrel with Dr. LaMarte's assessment of 
 
         Mr. Jones from his records dated April 13, 1990 that he had 
 
         reached maximum medical improvement on that date." (Ex. 1, p. 13)
 
         
 
              Dr. Parsow, gave claimant a permanent impairment rating of 
 
         25 percent on December 20, 1989, based on a diagnosis of degener
 
         ative disc disease with radiculopathy.  However, it was his opin
 
         ion that claimant had not yet reached maximum medical improve
 
         ment.  On August 22, 1990, Dr. Parsow gave claimant another 25 
 
         percent permanent rating (Ex. 2, pp. 24 and 25).  Despite attend
 
         ing physical therapy and being treated by Dr. Parsow, claimant's 
 
         condition had not changed when he was reexamined by Dr. LaMarte 
 
         on July 11, 1990.  At that time, Dr. LaMarte reiterated that "In 
 
         my opinion, Mr. Jones had reached maximal medical improvement on 
 
         April 13, 1990."  (Ex. 3, p. 5)
 
         
 
              The greater weight of evidence supports the finding that 
 
         claimant reached maximum medical improvement on April 13, 1990.  
 
         Two highly qualified physicians concur that claimant reached max
 
         imum medical improvement at that time.  Pursuant to Iowa Code 
 
         section 85.34(2), claimant's healing period ended when it was 
 
         medically indicated that significant improvement from his injury 
 
         was not anticipated.  Accordingly, claimant is entitled to heal
 
         ing period benefits from July 11, 1989 through April 13, 1990, at 
 
         the stipulated rate of $267.18 per week.
 
         
 
              The parties stipulate that claimant sustained an industrial 
 
         disability as a result of the injury on July 11, 1989.  Medical 
 
         practitioners who have treated and/evaluated claimant have ren
 
         dered opinions on impairment ranging from seven to 25 percent and 
 
         have imposed restrictions on his employability.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity to engage in employment for which he is fitted.  Olson v. 
 
         Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         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 proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's qualifi
 
         cations 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 arriv
 
         ing 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, moti
 
         vation - 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).
 
         
 
              Claimant, age 43 at the time of the hearing, has an eighth 
 
         grade education with no other formal educational experience.  
 
         Claimant has work experience as a farmhand, convenient station 
 
         assistant manager and machine operator.  On April 13, 1990, Dr. 
 
         LaMarte imposed restrictions including no lifting greater than 25 
 
         pounds and no frequent or continuous bending, twisting, or stoop
 
         ing.  On November 13, 1990, Dr. Morrison restricted claimant to 
 
         lifting no more than 20 pounds and no frequent bending over, 
 
         squatting, crawling or bending to lift objects.  On March 13, 
 
         1991, Dr. Parsow imposed restrictions including occasional lift
 
         ing up to 20 pounds and frequent lifting up to 10 pounds with no 
 
         bending, reaching or climbing.  He recommended alternating 
 
         between sitting/standing every 30 minutes.  Employer testified 
 
         that work is available in the service department at Eaton 
 
         Corporation which would accommodate claimant's maximum restric
 
         tions.  Claimant did, in fact, return to work on March 19, 1991, 
 
         for four hours per day until May 28, 1991, when he allegedly 
 
         aggravated his back condition.  However, there is no medical evi
 
         dence pertaining to claimant's present condition and, therefore, 
 
         his current disability cannot be assessed.  Since discovery ended 
 
         on May 27, 1991, this case is res judicata as to facts which 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         occurred after that time.  Accordingly, industrial disability 
 
         will be assessed as of the original injury on July 11, 1989, 
 
         rather than as of the date this case was tried.
 
         
 
              It is difficult, by the evidence presented in this case, to 
 
         make a definite judgment on claimant's motivation.  Claimant has 
 
         a long and steady work history and his employer described him as 
 
         a good worker whom they intend to maintain in employment.  
 
         Claimant has significant seniority in the company and is classi
 
         fied as Grade 4 entitling him to earn $10.84 per hour which is 
 
         the same hourly rate he earned when he was injured.  Although 
 
         claimant has not suffered a loss of earnings due to his injury, 
 
         he has inevitably suffered a loss of earning capacity.  
 
         Nevertheless, claimant persists in conservative therapy despite 
 
         recommendations that he undergo surgery.  Delay in his medical 
 
         improvement seems to be created by his own action.
 
         
 
              Considering all of the elements of industrial disability, it 
 
         is determined that claimant has established a permanent partial 
 
         disability of 25 percent for industrial purposes entitling him to 
 
         125 weeks of permanent partial disability benefits.
 
         
 
              The final issue to be determined is claimant's entitlement 
 
         to medical benefits under Iowa Code section 85.27.  Defendants 
 
         contend that unpaid amounts for medical expenses sought by 
 
         claimant are not recoverable because treatment through Dr. Parsow 
 
         was no longer authorized by the employer after May 31, 1990.  Mr. 
 
         Gates testified at the hearing that the company terminated autho
 
         rization of treatment with Dr. Parsow because claimant did not 
 
         seem to show any improvement in his condition with conservative 
 
         therapy.  Claimant testified that he was notified by the company 
 
         that they were revoking Dr. Parsow's treatment but he continued 
 
         with him because he felt it was helping his condition.  Under 
 
         Iowa Code section 85.27 (1989) an employer has the responsibility 
 
         to provide an injured worker with reasonable medical care and has 
 
         the right to select the care the worker will receive.  In order 
 
         for the employer to be held responsible for claimant's medical 
 
         expenses, claimant must show that the treatments sought were 
 
         either of an emergency nature or were authorized.  Templeton v. 
 
         Little Giant Crane and Shovel, I State of Iowa Industrial 
 
         Commissioner Decisions No. 3, 702, 704 (Iowa Industrial 
 
         Commissioner Appeal 1985).
 
         
 
              While claimant initially obtained authorization to be 
 
         treated by Dr. Parsow, employer revoked authorization on May 31, 
 
         1990, after two physicians determined that he had reached maximum 
 
         medical improvement and that he was showing no improvement with 
 
         conservative therapy rendered by Dr. Parsow.  The record clearly 
 
         indicates that even Dr. Parsow did not find claimant's condition 
 
         improved between December 20, 1989, when he rated claimant as 25 
 
         percent permanently disabled and on August 22, 1990, when he 
 
         again rated him at 25 percent.  This indicates that there was no 
 
         improvement in claimant's condition after authorized treatment by 
 
         Dr. Parsow was revoked.  Accordingly, any treatment provided to 
 
         claimant by Dr. Parsow after May 31, 1990, is not compensable.
 
         
 
                                      order
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant thirty-nine point 
 
         five-seven-one (39.571) weeks of healing period benefits at the 
 
         stipulated rate of two hundred sixty-seven and 18/l00 dollars 
 
         ($267.18) for the period from July 11, 1989 through April 13, 
 
         1990.
 
         
 
              That defendant pay to claimant one hundred twenty-five (125) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred sixty-seven and 18/l00 dollars ($267.18) per 
 
         week commencing April 14, 1990.
 
         
 
              That defendant receive credit for any benefits previously 
 
         paid.
 
         
 
              That defendant pay the cost of this action pursuant to rule 
 
         343 IAC 4.33.
 
         
 
              That defendant pay accrued amounts in a lump sum.
 
         
 
              That defendant pay interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant file claimant activity reports as required by 
 
         this agency.
 
         
 
         
 
         
 
              Signed and filed this ____ day of July, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P O Box 1588
 
         Council Bluffs  IA  51502
 
         
 
         Mr. Allan Bjork
 
         Attorney at Law
 
         1300 Des Moines Bldg
 
         Des Moines  IA  50309
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                        5-1801.1; 1802; 5-2500
 
                        Filed July 12, 1991
 
                        JEAN M. INGRASSIA
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         ROGER L. JONES,               :
 
                                       :         File No. 923011
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         EATON CORPORATION,            :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         Parties dispute extent of temporary disability, industrial 
 
         disability and entitlement to medical benefits under section 
 
         85.27.
 
         
 
         
 
         5-1801.1; 1802
 
         Claimant slipped and fell at work on July 11, 1989 and twisted 
 
         his back.  Laboratory tests revealed herniation of L4-L5 disc and 
 
         advanced degenerative disc disease at L5-Sl.  Surgery recommended 
 
         by two physicians; claimant refused and he opted for conservative 
 
         therapy by a physician of his choice.  Employer agreed to the 
 
         treatment.
 
         Claimant's condition did not improve with conservative therapy.  
 
         Employer notified claimant that treatment with his doctor no 
 
         longer was authorized.
 
         Claimant awarded healing period benefits from date of injury 
 
         until he reached maximum medical improvement.  He was awarded 25 
 
         percent industrial disability.  Claimant is 43 years old and has 
 
         an 8th grade education.  He is a long-term employee of defendant 
 
         and has been offered a job to accommodate his limitations.  He 
 
         worked a few months, March 19, 1991 through May 28, 1991.  No 
 
         evidence offered as to current injury because discovery ended on 
 
         May 27, 1991, therefore, claimant's industrial disability was 
 
         assessed as of original injury and until discovery period ended.
 
         
 
         5-2500
 
         Medical expenses not awarded for Dr. Parsow after defendant 
 
         terminated authorization.  Claimant's condition not improved with 
 
         therapy.  Dr. Parsow gave claimant a 25 percent impairment rating 
 
         on December 20, 1989 and again on August 22, 1990.  Authorization 
 
         of treatment was revoked on May 31, 1990.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEPHEN J. HARLOW,            :
 
                                          :
 
                 Claimant,                :         File No. 923049
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            IBP, INC.,                    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Stephen 
 
            J. Harlow against IBP, Inc., his former employer, based upon 
 
            an injury that occurred on March 3, 1989.  Claimant seeks 
 
            compensation for permanent partial disability.  An issue 
 
            exists regarding the date that payment of the permanent 
 
            partial disability compensation commences.  At commencement 
 
            of the hearing it was determined that Harlow's rate of 
 
            compensation is $158.35.
 
            
 
                 The case was heard at Sioux City, Iowa on April 17, 
 
            1991.  The evidence in the case consists of testimony from 
 
            Stephen J. Harlow and Dale L. Masters.  The record also 
 
            contains jointly offered exhibits A through Z and AA through 
 
            RR.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Stephen J. Harlow is a 36-year-old man who has never 
 
            been married and who has no dependents.  Stephen is a high 
 
            school graduate and has completed approximately three 
 
            semesters of college.
 
            
 
                 The record in this case shows no evidence of Stephen 
 
            having any significant problem with his back until March 3, 
 
            1989, the date that the injury in this case occurred.
 
            
 
                 Throughout his life, Stephen has held a number of 
 
            different jobs.  He has performed farm work, foundry labor, 
 
            landscaping labor, dock work at a packinghouse, machine 
 
            operation at a millwork plant, factory assembly line work, 
 
            work in a department store, work as a framing carpenter and 
 
            operated a crane as well as the work he performed at IBP.
 
            
 
                 Stephen has been twice convicted and imprisoned for 
 
            criminal offenses.  The last sentence resulted in 
 
            approximately seven and one-half years of confinement in the 
 
            state of Georgia where claimant worked on a chain gang.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 After being paroled, Stephen returned to Iowa and 
 
            obtained employment at IBP, Inc., in approximately October 
 
            1988.  He worked as a knocker and shackler, a job in which 
 
            he killed or stunned beef animals with a pneumatic hammer, 
 
            wrapped a chain around the animal's hind leg and used the 
 
            chain to hoist the animal into the air as one of the initial 
 
            steps in the slaughtering process.  If the animals are not 
 
            quickly shackled and raised into the air after being struck 
 
            in the head with the pneumatic hammer, they begin to kick 
 
            and convulse wildly.  Stephen injured his back on March 3, 
 
            1989 while shackling a stunned animal which had begun to 
 
            kick and convulse.
 
            
 
                 Stephen promptly reported the injury and sought medical 
 
            care.  He was treated conservatively without success and, 
 
            despite his symptoms, continued to work for approximately 
 
            four months until being referred to Omaha orthopaedic 
 
            surgeon Michael J. Morrison, M.D.  A CT scan was performed 
 
            on July 19, 1989 which was interpreted as showing disc 
 
            herniation at the L4-5 level of claimant's spine (exhibit 
 
            LL).  On July 24, 1989, Dr. Morrison performed 
 
            hemilaminectomy surgery at the L4-5 level of claimant's 
 
            spine with disc removal (exhibit EE).  After a period of 
 
            recovery, Stephen was allowed to return to work as tolerated 
 
            with a 20-pound weight restriction effective September 13, 
 
            1989 (exhibits J-5, BB, HH and II).
 
            
 
                 Stephen worked for approximately a month at the plant 
 
            performing varied light duty.  According to claimant's 
 
            testimony at hearing, he was terminated for an 
 
            unsubstantiated charge of sexual harassment, though in his 
 
            deposition he stated that he had been suspended for sexual 
 
            harassment (exhibit RR, page 16).  Dale L. Masters, 
 
            personnel manager at the IBP plant, agreed that claimant had 
 
            been suspended.  Stephen did not return to work following 
 
            the suspension.  He, instead, was extradited back to the 
 
            state of Georgia for a parole violation.  He remained 
 
            incarcerated in the state of Georgia from November 1988 
 
            until April 1990 when he returned to Iowa (exhibit RR, pages 
 
            19 and 20).  Since returning to Iowa, Stephen has made 
 
            several job inquiries, but the only job he has obtained is 
 
            work as a farmhand which ran from January through April 
 
            1991.  Stephen's work as a farm laborer was terminated 
 
            shortly prior to the hearing.  He did not have any 
 
            employment or prospects of employment at the time of 
 
            hearing.
 
            
 
                 According to Stephen, his life is currently fairly 
 
            uneventful, except for an incident when he got into a bar 
 
            fight with three other individuals and apparently came out 
 
            as the victor (exhibit RR, pages 7-9 and 27).
 
            
 
                 Dr. Morrison has rated Stephen as having a 10 percent 
 
            permanent impairment as a result of his back injury and 
 
            surgery and characterized the results of the surgery as 
 
            good.  Dr. Morrison has also recommended that claimant 
 
            restrict his activities in order to avoid frequent bending 
 
            over to do heavy lifting greater than 30-40 pounds; against 
 
            frequent crawling, kneeling or squatting; and, against 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            sitting for extended periods without being allowed to get up 
 
            and stretch as needed (exhibits JJ and KK).
 
            
 
                 D. J. Soll, M.D., has recommended that claimant not 
 
            perform any heavy or strenuous lifting including bending and 
 
            stooping (exhibit RR-1).
 
            
 
                 Stephen related that he has no pain in his back under 
 
            most circumstances, but does have a weak spot in it which 
 
            will let go if he places himself in the wrong position.
 
            
 
                 Stephen Harlow had, for the greater part of his working 
 
            life, earned his way through moderate to heavy physical 
 
            labor.  The physicians have indicated that he is no longer 
 
            physically capable of performing that type of work.  
 
            Stephen's high school graduation, college performance and 
 
            appearance at hearing indicated that he is of at least 
 
            average intelligence.  The only major detriments to his 
 
            employability are the impairment of his back and his 
 
            criminal history.  It order for Stephen to resume gainful 
 
            employment, it will be necessary that he avoid some of the 
 
            activities which had been integral parts of most of his 
 
            prior employments.  He will likely need some type of 
 
            vocational rehabilitation and has undertaken steps through 
 
            the Iowa Division of Vocational Rehabilitation in order to 
 
            arrange some further education and improve his chances of 
 
            obtaining employment.  Stephen appears to have the aptitude 
 
            to successfully complete further education pursuits.
 
            
 
                 Stephen did not re-apply for work at IBP as he felt he 
 
            had been fired and that they would not rehire him.  Dale 
 
            Masters did not indicate with any degree of certainty 
 
            whether or not IBP would rehire Stephen.  The final 
 
            evaluation performed on Stephen rated him as either marginal 
 
            or unsatisfactory in all areas evaluated (exhibit P).  
 
            Stephen was under the impression that there was no permanent 
 
            light-duty work available at the IBP plant.  Masters did not 
 
            contradict the claimant's statement in that regard.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is the date for 
 
            commencement of payment of permanent partial disability 
 
            compensation.  According to section 85.34(2), Code of Iowa, 
 
            compensation for permanent partial disability is payable 
 
            commencing immediately at the end of the healing period.  
 
            Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers 
 
            Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 
 
            1979); Benson v. Good Samaritan Center, file number 765734 
 
            (Ruling on Rehearing, October 18, 1989).  The employer 
 
            asserts that since Stephen was incarcerated, he should not 
 
            have been eligible to receive weekly benefits.  The 
 
            assertion is without merit since the only prohibition 
 
            against payment of weekly benefits during a period of 
 
            incarceration exists when the injury is one which occurred 
 
            during the period of incarceration.  Iowa Code section 
 
            85.59.  The removal from work was due to claimant's own 
 
            misconduct.  It therefore does not cause a resumption of 
 
            healing period despite the fact that he had not achieved 
 
            maximum medical improvement.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 As a result of this injury, it is necessary for Stephen 
 
            Harlow to move into a field of work which does not include 
 
            the moderate to heavy physical labor which had been a 
 
            primary factor in most of his prior employments.  His rate 
 
            of compensation indicates a favorable rate of earnings with 
 
            the defendant employer.  It is unlikely that he will be able 
 
            to regain that rate of earnings without some type of 
 
            retraining or vocational rehabilitation.  Stephen appears 
 
            capable of successfully pursuing further training.  There is 
 
            no evidence in the record of what level of earnings Stephen 
 
            could expect to achieve if he successfully completes further 
 
            schooling.  At this point, it would be premature and 
 
            speculative since he is not even enrolled in any particular 
 
            course of study and there is no record of scholastic 
 
            achievement upon which to make any prediction regarding his 
 
            success at completing the course or chances for obtaining 
 
            employment within the field of study.  When all material 
 
            factors of industrial disability are considered, it is 
 
            determined that Stephen J. Harlow sustained a 30 percent 
 
            permanent partial disability as a result of the March 3, 
 
            1989 injury.  This entitles him to recover 150 weeks of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            permanent partial disability compensation under the 
 
            provisions of Code section 85.34(2)(u) payable commencing 
 
            September 14, 1989, the day following the last day of the 
 
            healing period.  The employer has paid 50 weeks of benefits 
 
            at an incorrect rate which is slightly higher than the 
 
            stipulated rate of $158.35 per week.  The employer is 
 
            entitled to credit for those overpayments towards 
 
            satisfaction of the additional weekly compensation awarded 
 
            in this decision.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the employer pay Stephen 
 
            J. Harlow one hundred fifty (150) weeks of compensation for 
 
            permanent partial disability payable commencing September 
 
            14, 1989 at the stipulated rate of one hundred fifty-eight 
 
            and 35/100 dollars ($158.35) per week.  All accrued amounts, 
 
            after credit for benefits previously paid, shall be paid to 
 
            the claimant in a lump sum together with interest pursuant 
 
            to Iowa Code section 85.30 computed from the date each 
 
            weekly payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jacob J. Peters
 
            Attorney at Law
 
            233 Pearl Street
 
            P.O. Box 1078
 
            Council Bluffs, Iowa  51502
 
            
 
            Ms. Marie L. Welsh
 
            Attorney at Law
 
            P.O. Box 515, Dept. #41
 
            Dakota City, Nebraska  68731
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 3800
 
                           Filed April 29, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            STEPHEN J. HARLOW,  :
 
                      :
 
                 Claimant, :         File No. 923049
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            IBP, INC.,     :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Thirty-six-year-old claimant with a history of earning his 
 
            livelihood through moderate to heavy physical labor, awarded 
 
            30 percent permanent partial disability for back injury 
 
            which resulted in a 30- to 40-pound lifting restriction and 
 
            10 percent permanent impairment.
 
            
 
            3800
 
            It was held that where claimant returned to light-duty work 
 
            and was then incarcerated for a parole violation that weekly 
 
            compensation for permanent partial disability was payable 
 
            commencing at the end of the healing period and that it was 
 
            not interrupted or suspended during the period of 
 
            incarceration.  Claimant did not revert to a healing period 
 
            status despite the fact that he was not working and had not 
 
            attained maximum medical improvement.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TONY SANDERS,                 :
 
                                          :       File No. 923065
 
                 Claimant,                :                983820
 
                                          :
 
            vs.                           :     
 
                                          :     A R B I T R A T I O N
 
            GRIFFIN WHEEL COMPANY,        :      
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                 File No. 983820 was dismissed at the hearing and the 
 
            dismissal was granted.
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Tony Sanders, against Griffin Wheel Co., a 
 
            self-insured employer.  The matter came on before the 
 
            undersigned deputy industrial commissioner on December 17, 
 
            1992, at Burlington, Iowa.
 
            
 
                 The record in the case consists of the testimony from 
 
            the claimant and Rose Harmon, the personnel and safety 
 
            coordinator for defendants, and joint exhibits 2 through 20.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received and having presided at the hearing, finds 
 
            the following facts:
 
            
 
                 Claimant is a 27-year-old employee of Griffin Wheel, a 
 
            company which manufactures steel wheels for trains.  He has 
 
            worked in the factory in the Sprue wash department for more 
 
            than nine years.  Claimant's specific job duties involve 
 
            using a cutting torch to refine the wheels by cutting off 
 
            excess metal from the wheel.  In so doing, claimant is 
 
            required to hold the torch with both hands and uses his 
 
            right hand to operate a jaw which opens and closes.
 
            
 
                 In late June 1989, claimant began to experience pain 
 
            and numbness in both wrists, worse on the right wrist.  
 
            Claimant reported the injury and according to the personnel 
 
            department report, he was sent to Robert R. Kemp, M.D.  The 
 
            initial diagnosis was that of overuse syndrome/tendonitis of 
 
            both hands.  It was recommended claimant be transferred to a 
 
            different job (Joint Exhibit 8, page 30).
 
            
 
                 Claimant continued to complain of bilateral hand 
 
            cramping, numbness and tingling and was sent to Philip 
 
            Wilson, M.D.  His initial diagnosis was overuse syndrome of 
 
            the wrist, and Dr. Wilson recommended rest and splints.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant was given light duty restrictions including no arc 
 
            welding, no grinding duties and minimal use of both wrists.  
 
            Claimant was to lift not more than ten pounds.  An 
 
            examination revealed that claimant had a positive Phalen's 
 
            test but a negative Tinel's test.  An x-ray of the wrist was 
 
            negative, and claimant was to undergo an EMG study (Jt. Ex. 
 
            9, pp. 31-35; Jt. Ex. 4, pp. 13-18; Jt. Ex. 10, p. 41).
 
            
 
                 Walid Hafez, M.D., performed the EMG and was of the 
 
            opinion that the results "could be compatible with 
 
            entrapment neuropathy, clinically significant for the right 
 
            and left median motor nerves at the wrists." (Jt. Ex. 3, p. 
 
            10; (Jt. Ex. 16, p. 64).
 
            
 
                 Claimant returned to Dr. Wilson at the QP&S Clinic in 
 
            Quincy, Illinois, where he also saw a physician by the name 
 
            of James Edmonds.  Dr. Edmonds' notes reflect that he read 
 
            the results of the EMG differently and although agreed that 
 
            claimant displayed some entrapment neuropathy, he felt 
 
            claimant had a normal examination and did not recommend 
 
            carpal tunnel surgery.  Nor did Dr. Edmonds believe that 
 
            claimant had tendonitis in either wrist (Jt. Ex. 9, p. 37).  
 
            Claimant returned to Dr. Wilson on July 11, 1989, and for 
 
            some reason was referred to a a Dr. Cochran for a 
 
            psychological evaluation.  This evaluation was normal (Jt. 
 
            Ex. 9, p. 36).
 
            
 
                 On July 18, 1989, claimant received an injection to the 
 
            right wrist and it was recommended he continue to wear wrist 
 
            splints.  During the next several weeks, claimant's right 
 
            hand improved slightly, but claimant was placed in a light 
 
            duty capacity on July 26, 1989.  On August 31, 1989, 
 
            claimant was released to return to full duty.  Dr. Wilson 
 
            was of the opinion that claimant had a mild overuse syndrome 
 
            with no evidence of carpal tunnel or systemic disease (Jt. 
 
            Ex. 4, p. 11; Jt. Ex. 9, p. 36; Jt. Ex. 14).
 
            
 
                 From August 7 through August 27, 1989, the employer 
 
            instituted a vacation shutdown wherein all employees were 
 
            laid off.  Some employees were allowed to perform some job 
 
            duties during this time.  The employer determined that no 
 
            light duty work was available during this time and claimant 
 
            received unemployment compensation (Jt. Ex. 15, pp. 62-63).
 
            
 
                 In February 1991, claimant sought treatment from Torage 
 
            Shivapour, M.D.  He again complained of pain and numbness in 
 
            both hands.  A neurological examination revealed a positive 
 
            Tinel's sign across both wrists.  A second EMG was performed 
 
            by Dr. Shivapour, a test which yielded normal results.  
 
            Nerve conduction studies of the median and ulnar nerve 
 
            across the wrists were also in normal limits (Jt. Ex. 11, 
 
            pp. 42-50).
 
            
 
                 Claimant continued to experience pain and numbness in 
 
            his wrists, with the worse pain in the right wrist.  He was 
 
            sent to Julio del Castillo, M.D.  Dr. del Castillo reviewed 
 
            the results of the EMG taken by Dr. Hafez and upon 
 
            examination was of the opinion that claimant was suffering 
 
            from carpal tunnel syndrome.  He interpreted the results of 
 
            the EMG as showing entrapment neuropathy on both the right 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and left wrists.  His examination revealed tenderness of the 
 
            median nerve on the right wrist but normal flexion and 
 
            extension.  The right ulnar nerve was tender at the 
 
            epicondylar canal.  Claimant also experienced decrease to 
 
            pinprick perception on the right hand.  Dr. del Castillo 
 
            diagnosed carpal tunnel syndrome on the right hand and 
 
            recommended nonsteriodal anti-inflammatory drugs, rest and a 
 
            splint to be worn on the right wrist.  If conservative 
 
            treatment failed, surgery was an option (Jt. Ex. 2, pp. 8-9; 
 
            Jt. Ex. 12, pp. 51-52).
 
            
 
                 In January of 1992, claimant again sought treatment 
 
            from Dr. Wilson.  Eventually, claimant was referred to the 
 
            University of Iowa Hospitals and Clinics.  He saw Physician 
 
            Patrick Hitchon in February of 1992.  Dr. Hitchon reviewed 
 
            the results of the EMG and nerve conduction studies, 
 
            interpreted the results as normal, and released claimant to 
 
            return to work (Jt. Ex. 5, pp. 21-22; Jt. Ex. 6, p. 23).
 
            
 
                 Finally, in October of 1992, claimant was sent to the 
 
            Keokuk Clinic where he saw James LeVan, M.D.  His 
 
            examination showed that claimant had poor grip on the right 
 
            side and numbness in his right arm.  Claimant also 
 
            complained of numbness in the little finger and bottom of 
 
            the palm and thumb on the left hand.  Dr. LeVan recommended 
 
            elbow protectors instead of surgery (Jt. Ex. 20, pp. 70-71).
 
            
 
                 Dr. del Castillo was deposed in February of 1992.  At 
 
            pages 8 through 9 of his deposition, Dr. del Castillo 
 
            submits that he felt claimant had carpal tunnel syndrome of 
 
            the right wrist and a lesser degree of the left wrist.  He 
 
            indicated that the symptoms and findings of the carpal 
 
            tunnel syndrome were a result of claimant's repetitive work.  
 
            He also indicated that carpal tunnel syndrome is a permanent 
 
            condition (Jt. Ex. 13).
 
            
 
                 Currently, claimant continues to work in the Sprue wash 
 
            department at his regular job.  Other than his light duty 
 
            assignment in August of 1989, claimant has also worked in 
 
            the gasket center and in the core baker department.  He 
 
            stated that he is able to keep up with the demands of his 
 
            job as an arc welder.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to temporary total disability benefits during the 
 
            time he was restricted to light duty work but at a time when 
 
            none was available due to a plant shutdown.  This time frame 
 
            runs from August 7, 1989 through August 27, 1989.
 
            
 
                 If claimant has not sustained a permanent injury, he is 
 
            entitled to temporary total disability benefits, as governed 
 
            by Iowa Code section 85.33:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 These benefits start on the fourth day of the time off 
 
            work.  If the disability has more than fourteen days, 
 
            claimant recoups the first three days of benefits.
 
            
 
                 If claimant has sustained a permanent injury, he is 
 
            entitled to healing period benefits during the time he is 
 
            off of work:
 
            
 
                 If an employee has suffered a personal injury 
 
                 causing permanent partial disability for which 
 
                 compensation is payable as provided in subsection 
 
                 2 of this section, the employer shall pay to the 
 
                 employee compensation for a healing period, as 
 
                 provided in section 85.37, beginning on the date 
 
                 of injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 The first occurrence contemplated by section 85.33(1) 
 
            and by section 85.34(1) is a return to work.  Claimant was 
 
            released to return to light duty work, but was unable to do 
 
            so because of the plant shutdown.
 
            
 
                 The second occurrence contemplated by section 85.33(1) 
 
            and by section 85.34(1) is a determination that the employee 
 
            is medically capable of returning to employment 
 
            substantially similar to the employment in which the 
 
            employee was engaged at the time of the injury.  There is no 
 
            indication in the record that claimant was capable of 
 
            returning to the same or substantially similar employment.  
 
            In fact, quite the opposite.  Claimant was not, initially, 
 
            released to his regular duties.  In August of 1989, he was 
 
            released to perform light duty work.
 
            
 
                 Finally, if claimant has sustained a permanent injury, 
 
            a third occurrence under Iowa Code section 85.34(1) is when 
 
            it is medically indicated that significant improvement from 
 
            the injury is not anticipated.  In the present case, 
 
            claimant's condition has stabilized over the past several 
 
            years.  Although he still experiences varying degrees of 
 
            discomfort in both wrists, claimant has been able to return 
 
            to his regular job duties and perform them successfully.  
 
            The question becomes whether claimant has sustained a 
 
            permanent injury.
 
            
 
                 Numerous physicians have treated claimant, have given 
 
            tests and have reviewed results of the same.  Dr. Wilson is 
 
            of the opinion that the tests are within normal limits, 
 
            while Dr. del Castillo opines that claimant has nerve 
 
            entrapment.  Both physicians appear to be well qualified to 
 
            treat the type of injury sustained by claimant.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant continues to have bouts of pain and discomfort 
 
            in the wrists; however, he continues to keep up with the 
 
            demands of his job duties at Griffin Wheel.
 
            
 
                 As a result, it is found that at this juncture, 
 
            claimant has failed to prove by a preponderance of the 
 
            evidence that he has sustained a permanent disability.
 
            
 
                 Therefore, claimant is entitled to temporary total 
 
            disability benefits from August 7, 1989 through August 27, 
 
            1989.
 
            
 
                 Finally, claimant has asked for penalty benefits 
 
            pursuant to Iowa Code section 86.13:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 The undersigned believes the law to be quite clear with 
 
            respect to claimant's entitlement to workers' compensation 
 
            benefits.  As a result, claimant is awarded an additional 50 
 
            percent of the amount of this award as a penalty against the 
 
            employer for unreasonably denying benefits to claimant.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay claimant temporary total 
 
            disability benefits at the rate of three hundred fourteen 
 
            and 11/100 dollars ($314.11) per week from August 7, 1989 
 
            through August 27, 1989.
 
            
 
                 That defendant shall pay claimant penalty benefits 
 
            equal to 50 percent of claimant's award for temporary total 
 
            disability benefits.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            P O Box 1087
 
            Keokuk IA 52632-1087
 
            
 
            Mr John E Kultala
 
            Attorney at Law
 
            511 Blondeau St
 
            Keokuk IA 52632
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed January 1, 1993
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TONY SANDERS,                 :
 
                                          :       File No. 923065
 
                 Claimant,                :                983820
 
                                          :
 
            vs.                           :     
 
                                          :     A R B I T R A T I O N
 
            GRIFFIN WHEEL COMPANY,        :      
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            File No. 983820 was dismissed at the hearing and the 
 
            dismissal was granted.
 
            
 
            5-1800
 
            Claimant awarded three weeks of temporary total disability.  
 
            Claimant was released to return to light duty work, but the 
 
            plant had initiated a shutdown.  Some employees worked 
 
            during the shutdown.
 
            Claimant also awarded penalty benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND L. COX,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 923214
 
            SKT CONSTRUCTION,             :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CINCINNATTI INSURANCE/        :
 
            CASUALTY,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendants, SKT Construction and Cincinnati Insurance/ 
 
            Casualty appeal from arbitration decision awarding claimant 
 
            temporary total disability benefits and medical expenses as 
 
            a result of a work-related injury on July 24, 1989.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; joint exhibits 1-A, 1-F, 1-I (1-6); and 
 
            claimant's exhibit 1.  Both parties filed briefs.
 
            
 
                                      issues
 
            
 
                 Defendants state that the issues on appeal are:
 
            
 
                    Whether or not conditions which were diagnosed 
 
                 as existing in claimant's right knee are related 
 
                 to an incident in his employment on July 24, 1989.
 
            
 
                    Whether or not defendants are responsible for 
 
                 the expense of a medical examination ordered by 
 
                 claimant's attorney; further temporary total 
 
                 disability benefits; and future surgical benefits.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed February 18, 1991 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     Analysis
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted on the issue of 
 
            temporary total disability benefits.  Additional analysis on 
 
            the issue of future medical benefits is necessary.
 
            
 
                 Claimant has the burden to prove a causal connection 
 
            between his work-related injury on July 24, 1989 and the 
 
            need for surgery.  The Iowa Supreme Court stated "[c]laimant 
 
            was entitled to recover the expenses in treating whatever 
 
            aggravation of her pre-existing condition, was caused by her 
 
            work-related injury.  Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 374-375, 112 N.W.2d 299, 302 (1961)."  Auxier 
 
            v. Woodward State Hospital-School, 266 N.W.2d 139, 144 (Iowa 
 
            1978).  Medical evidence indicates that claimant's anterior 
 
            cruciate ligament tear and tear in the posterior horn of the 
 
            medial meniscus and the need for surgery existed prior to 
 
            his work-related injury on July 24, 1989.  (Joint exhibit 
 
            6(1), page 2.)  While it is true that claimant had been able 
 
            to work prior to his injury, the medical evidence shows that 
 
            the need for surgery pre-existed claimant's injury despite 
 
            the fact that claimant was unaware of his right knee 
 
            condition.  Claimant failed to prove a causal connection 
 
            between his work-related injury on July 24, 1989 to his 
 
            right knee and the need for surgery.
 
            
 
                 Claimant sought the treatment of Mark B. Kirkland, 
 
            D.O., at his own expense, after defendants had refused to 
 
            provide further medical treatment.  Claimant was justified 
 
            in seeking treatment from Dr. Kirkland as claimant's right 
 
            knee continued to be painful and claimant had not been 
 
            released to return to work following the July 24, 1989 
 
            work-related injury.  Since claimant is justified in seeking 
 
            medical treatment, the defendants are liable for the 
 
            expenses of the medical treatment.  Richards v. Dept. of 
 
            General Services, Building & Grounds Division, I-3 Indus. 
 
            Comm'r Dec. 684 (1985).
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant sustained a work-related injury on July 
 
            24, 1989 to his right knee.
 
            
 
                 2.  Claimant had an anterior cruciate tear and tear in 
 
            the posterior horn of the medial meniscus which pre-existed 
 
            his work-related injury on July 24, 1989.
 
            
 
                 3.  The work-related injury of July 24, 1989 lighted up 
 
            claimant's asymptomatic preexisting right knee condition.
 
            
 
                 4.  The need for surgery to repair the anterior 
 
            cruciate tear and the tear in the posterior horn of the 
 
            medial meniscus was in existence prior to the work-related 
 
            injury on July 24, 1989 and is not causally connected to the 
 
            work-related injury.
 
            
 
                 5.  Claimant was off work from July 24, 1989 until June 
 
            6, 1990 when he returned to work for a different employer as 
 
            a foreman for a weatherization company.
 
            
 
                                conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant proved by a preponderance of the evidence 
 
            entitlement to temporary total disability benefits from July 
 
            24, 1989 through June 5, 1990 as a result of the 
 
            work-related injury.
 
            
 
                 Claimant proved by a preponderance of the evidence 
 
            entitlement to a reimbursement for medical expenses incurred 
 
            in the visit to Dr. Kirkland.
 
            
 
                 Claimant failed to prove a causal connection between 
 
            the work-related right knee injury on July 24, 1989 and the 
 
            need for surgery to repair the anterior cruciate tear and 
 
            the tear in the posterior horn of the medial meniscus.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant temporary total 
 
            disability benefits from July 24, 1989 through June 5, 1990 
 
            at the stipulated rate of one hundred seventy and 30/100 
 
            ($170.30) per week.
 
            
 
                 That defendants shall reimburse claimant for medical 
 
            expenses of one hundred twenty-seven and 50/100 ($127.50).
 
            
 
                 That defendants shall pay all benefits that have 
 
            accrued in a lump sum together with statutory interest 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 That defendants shall receive credit for all benefits 
 
            paid and not previously credited.
 
            
 
                 That defendants shall pay the costs of the appeal 
 
            including the costs of transcription of the arbitration 
 
            hearing.
 
            
 
                 That defendants shall file a claim activity report 
 
            pursuant rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Robert C. Landess
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2700, 2501
 
            Filed August 30, 1991
 
            Byron K. Orton
 
            JMI
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND L. COX,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 923214
 
            SKT CONSTRUCTION,             :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CINCINNATTI INSURANCE/        :
 
            CASUALTY,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2700
 
            Held that claimant failed to prove a causal connection 
 
            between his work-related injury on July 24, 1989 and the 
 
            need for surgery to repair claimant's right knee condition.  
 
            While it is true that claimant had been able to work prior 
 
            to his injury, the medical evidence shows that the need for 
 
            surgery pre-existed claimant's injury despite the fact that 
 
            claimant was unaware of his right knee condition.
 
            
 
            2501
 
            Held that defendants liable for medical expenses claimant 
 
            incurred.  Claimant sought the treatment at his own expense 
 
            after defendants refused to provide further medical 
 
            treatment.  Claimant was justified in seeking treatment as 
 
            claimant's right knee continued to be painful and claimant 
 
            had not been released to return to work following the July 
 
            24, 1989 work-related injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND L. COX,               :
 
                                          :
 
                 Claimant,                :      File No. 923214
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            SKT CONSTRUCTION, INC.,       :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CINCINNATTI INSURANCE/        :
 
            CASUALTY,                     :
 
            
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Raymond 
 
            Cox II, claimant, against SKT Construction, Inc., employer, 
 
            and Cincinnati Insurance/Casualty, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act, 
 
            as a result of an injury sustained on July 24, 1989.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on January 11, 1991.  The record was 
 
            considered fully submitted at that time.  The record in this 
 
            case consists of joint exhibits 1-A, 1-F, 1-I, (1-6), 
 
            claimant's exhibit 1, claimant's testimony and testimony 
 
            from David Neyens.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted by the 
 
            parties and approved at the hearing, the parties stipulate 
 
            that claimant sustained an injury on July 24, 1989, which 
 
            arose out of and in the course of his employment with 
 
            employer and that such injury is a scheduled member 
 
            disability to the leg.  That in the event of an award of 
 
            weekly benefits, the rate of weekly compensation is 
 
            stipulated to be $170.30 per week.  The issues in dispute 
 
            include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and the disability on which claimant now bases 
 
            his claim;
 
            
 
                 2.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the list of exhibits, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on July 13, 1956, and completed the 
 
            eleventh grade of school.  His work activity has been 
 
            primarily in the construction industry as a concrete worker, 
 
            framer and carpenter.  On July 18, 1989, he was hired by SKT 
 
            Construction Company to work as a carpenter on a new three 
 
            story apartment building in West Des Moines, Iowa.  Claimant 
 
            testified that on July 24, 1989, while he was at work, he 
 
            stepped on some trusses and his right foot went out from 
 
            under him.  He experienced immediate pain in his right knee.  
 
            He stated that he informed his supervisor of the incident 
 
            and drove himself to Iowa Methodist Clinic for evaluation.  
 
            He was seen by James M. Ostiguy, M.D., and he prescribed 
 
            crutches, ice and elevation of the knee.  An x-ray did not 
 
            reveal any fractures and a diagnosis of right knee 
 
            strain/sprain was made.  He was referred to Michael J. 
 
            Makowsky, M.D., who ordered an MRI of the right knee.  This 
 
            was taken on July 31, 1989, and revealed a complex tear of 
 
            the posterior horn of the medial meniscus and partial 
 
            anterior cruciate ligament tear.
 
            
 
                 Dr. Makowsky referred claimant to Scott S. Kelley, 
 
            M.D., who examined claimant on August 7, 1989.  X-rays at 
 
            this time showed significant degenerative joint disease in 
 
            the lateral compartment with intercondylar notch impingement 
 
            consistent with chronic disease of the knee and chronic 
 
            interior cruciate ligament tear.  Dr. Kelley stated that 
 
            "The patient has evidence of chronic degenerative meniscal 
 
            tears which may be improved by trimming down through 
 
            arthroscopy.  He has early arthritis and this will continue 
 
            to be a chronic problem." (Jt. Ex. G(4)).
 
            
 
                 Claimant was then seen by Peter D. Wirtz, M.D., an 
 
            orthopedist.  After examination, he recommended ligament 
 
            reconstruction and partial meniscectomy.
 
            
 
                 The insurance company referred claimant to Martin S. 
 
            Rosenfeld, D.O., who examined claimant on October 3, 1989.  
 
            He found no previous history of knee problems and noted an 
 
            unstable knee at the present time.  He referred claimant to 
 
            Mark B. Kirkland, D.O., a knee specialist for further 
 
            evaluation.  After a comprehensive evaluation on October 3, 
 
            1989, Dr. Kirkland recommended anterior cruciate ligament 
 
            reconstruction surgery.
 
            
 
                 Subsequently, claimant's medical records were made 
 
            available to Dr. Kirkland and after reviewing them he 
 
            concluded that the condition in the anterior cruciate 
 
            ligament and medial meniscus tear existed prior to the 
 
            incident on July 24, 1989, and that the claimant's activity 
 
            of stepping up onto or twisting while standing on the 
 
            trusses caused the condition to subluxate and caused a 
 
            temporary impingement resulting in pain.
 
            
 
                                conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 The parties do not dispute that the claimant sustained 
 
            an injury on July 24, 1989, which arose out of and in the 
 
            course of his employment with SKT Construction.  There is a 
 
            dispute as to whether claimant's injury is causally related 
 
            to his current disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 24, 
 
            1989 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            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).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 
 
            Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 
 
            591.  See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 
 
            (1965); Almquist, 218 Iowa 724, 254 N.W. 35.
 
            
 
                 A careful review of the medical evidence in this case 
 
            reveals that expert opinion favors the presupposition that 
 
            claimant's anterior cruciate ligament tear was of 
 
            longstanding duration.  Even though claimant denied previous 
 
            knee symptoms, Dr. Kelley felt that x-ray evidence of 
 
            significant degenerative joint disease in the lateral 
 
            compartment with intercondylar notch impingement signified a 
 
            longstanding history of knee problems.  Dr. Ostiguy and Dr. 
 
            Makowsky also record a history of previous knee problems.  
 
            Dr. Kirkland agrees with the aforementioned opinions and 
 
            stated that:
 
            
 
                 The condition of anterior cruciate ligament tear 
 
                 and tear in the posterior horn of the medial 
 
                 meniscus which allowed the knee to subluxate 
 
                 resulting in the impingement which caused the 
 
                 pain, however, more than likely was already 
 
                 present at the time of this incident.  It is, 
 
                 therefore, probable that the need for surgery to 
 
                 repair the anterior cruciate ligament tear and 
 
                 medial meniscus was in existence prior to any 
 
                 incident occurring at work on July 24, 1989.
 
            
 
            (Jt. Ex. 6(1), p. 2)
 
            
 
                 Thus, the record contains expert opinion which 
 
            conclusively establishes that the claimant had a preexisting 
 
            knee problem which was latent and asymptomatic until a July 
 
            24, 1989 injury, which materially and substantially 
 
            accelerated, worsened and lighted up his problem.
 
            
 
                 Since it is premature to determine whether permanency 
 
            will result following surgery, claimant at this time 
 
            requests temporary disability benefits during the time as he 
 
            was off work.  This period commences July 24, 1989 and ends 
 
            June 6, 1990, when claimant returned to work for another 
 
            employer.  Accordingly, claimant is entitled to 45.429 weeks 
 
            of temporary total disability benefits at the stipulated 
 
            rate of $170.30, commencing July 24, 1989 and ending June 6, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            1990.  Pursuant to section 85.27, the claimant is also 
 
            entitled to appropriate medical treatment and payment for 
 
            the surgical procedures recommended by his physicians.  In 
 
            the event claimant has a residual impairment from surgery, 
 
            he has the option of seeking further relief at that time.  
 
            Claimant is also entitled to reimbursement for any 
 
            out-of-pocket medical expenses including $127.50 for 
 
            examination and x-rays taken on January 10, 1990 (Claimant's 
 
            Exhibit 1).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant is entitled to forty-five point four hundred 
 
            twenty-nine (45.429) weeks of temporary total disability 
 
            benefits at the stipulated rate of one hundred seventy and 
 
            30/100 dollars ($170.30).
 
            
 
                 Claimant is entitled to appropriate medical treatment 
 
            including the surgical procedures recommended by Dr. Kelley 
 
            and Dr. Kirkland.
 
            
 
                 Claimant is entitled to reimbursement for medical 
 
            expenses of one hundred twenty-seven and 50/100 dollars 
 
            ($127.50).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits paid 
 
            and not previously credited.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
                 Claimant is not entitled to penalty benefits under 
 
            section 86.13 because such issue was not raised at the time 
 
            of the prehearing assignment order and this deputy lacks 
 
            jurisdiction to modify such order.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr Robert C Landess
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108.50; 1402.60; 1801; 2206
 
                      Filed February 19, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND L. COX,               :
 
                                          :
 
                 Claimant,                :      File No. 923214
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            SKT CONSTRUCTION, INC.,       :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CINCINNATTI INSURANCE/        :
 
            CASUALTY,                     :
 
            
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108.50: 1402.60: 1801: 2206
 
            Claimant, with preexisting chronic knee problems, was 
 
            asymptomatic until he stepped on trusses while at work and 
 
            incurred a complex tear of the posterior horn of the medial 
 
            meniscus and partial anterior cruciate ligament tear.  
 
            Anterior cruciate ligament reconstructive surgery was 
 
            recommended.  Claimant proved a causal connection between 
 
            work injury and his disability.  His injury materially and 
 
            substantially accelerated, worsened and lighted up his 
 
            preexisting knee problem.
 
            Claimant awarded temporary disability benefits for time off 
 
            work and medical treatment, including surgery.  Since it is 
 
            premature to determine permanency at this time, claimant 
 
            given option of seeking further relief after surgery.