Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            MICHAEL JONES,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 926289
 
            PLEASANT VALLEY PORK CORP.,:
 
		                      :        A P P E A L
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            GENERAL CASUALTY,  	      :
 
		                      :
 
                 Insurance Carrier,   :
 
		                      :
 
        		    and       :
 
                      		      :
 
            SECOND INJURY FUND OF IOWA:
 
                     		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 23, 1991 is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            P.O. Box 679
 
            Mason City, Iowa 50401
 
            
 
            Mr. Marvin E. Duckworth
 
            Ms. M. Anne McAtee
 
            Attorneys at Law
 
            2700 Grand Ave., Ste 111
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 28, 1991
 
            Byron K. Orton
 
            MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            MICHAEL JONES,	      :
 
		                      :
 
                 Claimant, 	      :	
 
		                      :
 
		            vs.       :
 
                 		      :      File No. 926289
 
            PLEASANT VALLEY PORK CORP.,:
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            GENERAL CASUALTY,         :
 
                      		      :
 
                 Insurance Carrier,   :
 
                      		      :
 
 		            and       :
 
                 		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 23, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL JONES,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  926289
 
            PLEASANT VALLEY PORK CORP.    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :      
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            Jones as a result of injuries to his right lower extremity 
 
            which occurred on August 10, 1989.  Defendant employer 
 
            admitted compensability for the injury, paid weekly benefits 
 
            and paid medical expenses.  Defendant Second Injury Fund of 
 
            Iowa denied that claimant is entitled to second injury fund 
 
            benefits.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on May 7, 1991.  The record in the proceeding consists 
 
            of claimant's exhibits 1 through 12, 16 and 17; employer's 
 
            exhibits A, H, I and K; and testimony from claimant.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  The extent of claimant's entitlement to permanent 
 
            disability resulting from the right lower extremity injury;
 
            
 
                 2.  Whether Dr. Walker's fees charged for the Iowa Code 
 
            section 85.39 examination are fair and reasonable; and
 
            
 
                 3.  Claimant's entitlement to second injury fund 
 
            benefits.
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant has brought an action against employer 
 
            Pleasant Valley Pork for permanent partial disability as the 
 
            result of an August 10, 1989, right knee injury.  Claimant 
 
            also seeks permanent partial disability benefits from the 
 
            State of Iowa Second Injury Fund for the combined disability 
 
            caused by a 1984 left lower extremity injury and the August 
 
            10, 1989, right lower extremity injury.
 
            
 
                 Claimant fractured his left ankle in a motorcycle 
 
            accident in April 1984 (exhibit 2).  No specific work 
 
            restrictions were imposed as a result of that injury.  
 
            Claimant testified that the ankle is painful and inhibits 
 
            his ability to perform certain tasks.  
 
            
 
                 John Walker, M.D., performed a medical examination at 
 
            claimant's attorney's direction on April 27, 1990.  Dr. 
 
            Walker opined that claimant sustained 22 percent permanent 
 
            partial impairment as a result of the 1984 left ankle injury 
 
            (ex. 6, page 5).  Contrary opinions on the left ankle 
 
            impairment were not offered.  In the absence of other expert 
 
            evidence, Dr. Walker's opinion on the left lower extremity 
 
            is accepted as correct.  It is found that claimant sustained 
 
            a loss of use of the left lower extremity amounting to 22 
 
            percent as a result of the 1984 motorcycle accident.
 
            
 
                 Claimant injured his right knee while working for 
 
            Pleasant Valley Pork on August 10, 1989.  The injury was 
 
            diagnosed as superficial fissuring of medial femoral 
 
            condyle.  The treating physician, Raymond L. Emerson, M.D., 
 
            rated claimant's impairment at 5 percent to the right lower 
 
            extremity.  He also released claimant to return to work as 
 
            tolerated with no specific work restrictions imposed (ex. 3, 
 
            p. 5).
 
            
 
                 Dr. Walker rated claimant's right knee impairment at 20 
 
            percent to the right lower extremity on April 27, 1990.  Dr. 
 
            Walker's opinion is rejected as he examined claimant on only 
 
            one occasion and that was for the benefit of litigation.
 
            
 
                 Dr. Emerson's rating of claimant's August 10, 1989, 
 
            right lower extremity injury at 5 percent is found to be 
 
            correct.  Dr. Emerson's opinions are more reliable in that 
 
            he was the treating physician who followed claimant's 
 
            treatment during his period of convalescence.  Dr. Emerson 
 
            also had the advantage of observing claimant's knee during 
 
            two arthroscopic examinations.  It is found that as a result 
 
            of the August 10, 1989, injury, claimant sustained a 5 
 
            percent permanent partial disability to the right lower 
 
            extremity.
 
            
 
                 Claimant testified that the left ankle and right lower 
 
            extremity injuries make it difficult for him to perform work 
 
            as a welder and law enforcement patrolman.  Claimant stated 
 
            that some of the welding jobs could still be performed if 
 
            from a sitting position.  He also stated that some law 
 
            enforcement positions are also available.  It is noted that 
 
            much of claimant's testimony on direct examination was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            solicited by means of leading questions.  Such evidence is 
 
            given less weight when compared to the medical records and 
 
            other evidence offered.
 
            
 
                 It must be noted that on February 20, 1990, claimant 
 
            stated he was able to walk three to five miles per day (ex. 
 
            3, p. 5).  Evidence also revealed that claimant had applied 
 
            for work as a law enforcement officer which required a 
 
            physical test involving running and climbing.  Claimant 
 
            successfully completed the testing.
 
            
 
                 Claimant alleges that the combined disability caused by 
 
            the 1984 left ankle injury and the 1989 right knee injury 
 
            has caused industrial disability which should be compensated 
 
            by the second injury fund.
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, experience, 
 
            impairment and work restrictions.
 
            
 
                 Claimant at the time of injury was 27, a high school 
 
            graduate with an associate's degree in law enforcement and 
 
            training and experience as a welder.
 
            
 
                 Claimant's work experience consists primarily of work 
 
            as a farm laborer, military experience in weather 
 
            observation, welding and automobile mechanic.
 
            
 
                 The impairment is 5 percent to the right lower 
 
            extremity and 22 percent impairment to the left lower 
 
            extremity.  No specific work restrictions have been imposed.  
 
            Claimant alleges that pain is present in both limbs which, 
 
            in turn, greatly restricts his ability to perform work for 
 
            which he has previous training.  It is accepted that the two 
 
            injuries caused difficulty for claimant when performing 
 
            physical work.  However, the extent of difficulty portrayed 
 
            by claimant is rejected.  Claimant's ability to walk three 
 
            to five miles, combined with his successful completion of 
 
            the law enforcement physical tests, leads to the conclusion 
 
            that claimant exaggerated his symptoms.
 
            
 
                 Claimant's age and education weigh in favor of a lower 
 
            industrial disability.  Claimant's impairment ratings to 
 
            both lower extremities and his prior work experience 
 
            requiring standing weighs in favor of some finding of 
 
            disability.
 
            
 
                 It is found that as a result of the combined effect of 
 
            the right and left lower extremity injuries claimant is 10 
 
            percent industrially disabled.  Claimant is, therefore, 
 
            entitled to 50 weeks of benefits less the scheduled member 
 
            disability.  The right lower extremity was rated at 5 
 
            percent which amounts to 11 weeks pursuant to Iowa Code 
 
            section 85.34(2)(o).  The left lower extremity was rated at 
 
            22 percent which amounts to 48.4 weeks pursuant to Iowa Code 
 
            section 85.34(2)(o).  The combined scheduled member 
 
            disability equals 59.4 weeks which is in excess of the 
 
            second injury fund liability.  In conclusions, the Second 
 
            Injury Fund of Iowa has no liability for payment of 
 
            permanent partial disability in this case.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The final issue to be resolved concerns the 
 
            reasonableness of Dr. Walker's fee for the April 27, 1990, 
 
            examination.  A prior order, dated August 1, 1990, granted 
 
            claimant's request for an Iowa Code section 85.39 
 
            examination.  Employer alleges the charge of $815 is 
 
            excessive.  Employer paid $400 to Dr. Walker as a reasonable 
 
            fee.  Scott Neff, D.O., opined that $400 is generally 
 
            reasonable, but $500 would be in order if it were a complex 
 
            examination.  In this case, Dr. Walker examined injuries 
 
            other than the August 10, 1989, right knee injury.  Employer 
 
            is not responsible for payment of examination costs which 
 
            relate to the second injury fund case.  Thus, the only part 
 
            of the examination for which employer is responsible is the 
 
            evaluation of the right knee impairment.  
 
            
 
                 Having considered all the evidence, it is found that 
 
            $400 is the reasonable fee for Dr. Walker's April 27, 1990, 
 
            examination of claimant.
 
            
 
                 Also listed in exhibit 11 are the mileage expenses and 
 
            meal expenses incurred by claimant on April 27, 1990.  Iowa 
 
            Code section 85.39 makes provision for reimbursement for 
 
            reasonable necessary transportation expenses.  Meal expenses 
 
            are not specifically allowed.  It is found that claimant is 
 
            entitled to reimbursement for transportation expenses 
 
            incurred on April 27, 1990, in the amount of $44.10.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation, the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the factfinder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony and opinion.  All factors go to the value of the 
 
            physician's testimony as a matter of fact not as a matter of 
 
            law.  Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 
 
            187, 192 (Iowa 1985).
 
            
 
                 The loss of two-thirds of that part of a leg between 
 
            the hip joint and the knee joint shall equal the loss of a 
 
            leg, and the compensation therefor shall be weekly 
 
            compensation during two hundred twenty weeks.  Iowa Code 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            section 85.34(2)(o).
 
            
 
                 Upon considering all the evidence, it is found that 
 
            claimant sustained 5 percent permanent partial disability to 
 
            the right lower extremity as a result of the August 10, 
 
            1989, injury and claimant is entitled to recover 11 weeks of 
 
            benefits under Iowa Code section 85.34(2)(o).
 
            
 
                 Under Iowa Code section 85.63 through 85.69, three 
 
            requirements must be met in order to establish Fund 
 
            liability:  First, claimant must have previously lost or 
 
            lost the use of a hand, an arm, a foot, a leg, or an eye; 
 
            second, through another compensable injury, claimant must 
 
            sustain another loss or loss of use of another member; and 
 
            third, permanent disability must exist as to both injuries.  
 
            If the second injury is limited to a scheduled member, then 
 
            the employer's liability is limited to the schedule and the 
 
            Fund is responsible for the excess industrial disability 
 
            over the combined scheduled loss of the first and second 
 
            injuries.  See Simbro v. DeLong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983) and Second Injury Fund v. Neelans, 436 N.W.2d 
 
            355 (Iowa 1989).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 Claimant has established by a preponderance of the 
 
            evidence that he sustained the loss of use of two specified 
 
            scheduled members in order to invoke second injury fund 
 
            liability.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 10 
 
            percent industrial disability as against the second injury 
 
            fund which entitles the claimant to receive no benefits due 
 
            to the 59.4-week credit for scheduled member disability.
 
            
 
                 An employee can obtain an examination by a physician of 
 
            his choice at his employer's expense.  Iowa Code section 
 
            85.39 requires that a defendant employer pay the reasonable 
 
            fees and transportation expenses of an approved independent 
 
            medical examination.  Claimant has the burden of proving the 
 
            reasonableness of the charges, [Anderson v. High Rise 
 
            Construction Specialists, Inc., file number 850096 (Appeal 
 
            Decision July 31, 1990) fees under ICS 85.27], [Schintgen v. 
 
            Economy Fire and Casualty Co., file number 855298 (Appeal 
 
            Decision April 26, 1991) (fees under ICS 85.39].
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
         
 
              Having considered all the evidence received, it is found 
 
         that the reasonable fee for Dr. Walker's medical examination is 
 
         $400.  Claimant has also proven entitlement to reimbursement from 
 
         employer for $44.10 as reasonable transportation expenses.
 
         
 
                                      order
 
         
 
              IT IS THEREFORE, ORDERED:
 
         
 
              That employer is to pay claimant eleven (11) weeks of 
 
         permanent partial disability at the rate of one hundred fifteen 
 
         and 34/100 dollars ($115.34) commencing February 20, 1990.
 
         
 
              That employer is to pay for the costs of claimant's medical 
 
         examination and travel expenses totaling four hundred forty-four 
 
         and 10/100 dollars ($444.10).
 
         
 
              That the costs of this action are assessed equally against 
 
         defendants employer and second injury fund pursuant to rule 343 
 
         IAC 4.33.
 
         
 
              It is further ordered that defendants shall receive credit 
 
         for benefits previously paid.
 
         
 
              It is further ordered that all accrued benefits are to be 
 
         paid in a lump sum.
 
         
 
              It is further ordered that interest will accrue pursuant to 
 
         Iowa Code section 85.30. 
 
         
 
              It is further ordered that defendants file claim activity 
 
         reports as requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of May, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MARLON D. MORMANN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Robert Kinsey, III
 
         Attorney at Law
 
         214 N. Adams
 
         PO Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Marvin Duckworth
 
         Ms. Anne McAtee
 
         Attorneys at Law
 
         2700 Grand Ave STE 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Charles Lavorato
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 

 
         
 
         Page òòò  8        
 
         
 
         
 
         
 
         Des Moines, Iowa  50319
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803 52502 53200 51401
 
                      Filed May 23, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL JONES,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  926289
 
            PLEASANT VALLEY PORK CORP.    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :      
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            51803 52502 53200
 
            Claimant was awarded 5 percent to the right lower extremity 
 
            as against employer.  The treating doctors rating was given 
 
            greater weight than Dr. Walker's independent examination.
 
            Claimant, age 26, a high school graduate with post-high 
 
            school training in welding and law enforcement, was found 10 
 
            percent industrially disabled as a result of the combination 
 
            of two lower extremity injuries.  However, claimant took 
 
            nothing from second injury fund as the scheduled member 
 
            credit totaled 59 weeks.
 
            Dr. Walker's charge of $815 for an Iowa Code section 85.39 
 
            medical examination was excessive as he examined three 
 
            injuries.  It was found that employer was responsible for 
 
            examination costs associated with the single injury for 
 
            which employer was liable.  Claimant was granted $400 as a 
 
            reasonable expense.
 
            
 
            51401
 
            Extensive testimony from claimant solicited on direct 
 
            examination by means of leading questions was given less 
 
            weight.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                         :
 
         TERRY WISE,                     :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :         File No. 926298
 
         CRESLINE PLASTIC PIPE CO., INC.,:
 
                                         :      A R B I T R A T I O N
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         AMERICAN MOTORISTS INSURANCE,   :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Terry Wise, against his employer, Crestline Plastic 
 
         Pipe Company, Inc., and its insurance carrier, American Motorists 
 
         Insurance, defendants.  The case was heard on November 22, 1991, 
 
         in Council Bluffs, Iowa.  The record consists of the testimony of 
 
         claimant; the testimony of claimant's wife, Beverly Wise; and the 
 
         testimony of Bill Coburn, shipping and receiving supervisor at 
 
         defendant's establishment.  The record is also comprised of joint 
 
         exhibits 1-17, 19 and 20.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether there is a 
 
         causal relationship between the injury and any permanent disabil
 
         ity; and, 2) whether claimant is entitled to certain healing 
 
         period benefits.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 34 years old.  He is married and he has three 
 
         children.  In 1978 claimant started with defendant-employer.  He 
 
         was 20 years old and was hired to clean in the packinghouse.
 
         
 
              Later claimant held the position of utility man.  Claimant 
 
         was hired to pick up pipe and place it on a cart.  Claimant was 
 
         required to bend and lift frequently.  Every October claimant 
 
         received a raise.  At the time of the hearing, claimant was 
 
         earning $9.58 per hour.
 
         
 
              On August 17, 1989, claimant was working as a forklift truck 
 
         operator.  Claimant was required to load trucks and to unload 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         pipe.  It was approximately 9:00 to 10:00 a.m. when claimant felt 
 
         a snap in his back while he was picking up a piece of pipe.  
 
         Claimant described his pain as occurring in his right lower back 
 
         and down his right and left lower leg.
 
         
 
              Claimant reported the injury to the lead man and to the 
 
         supervisor.  Claimant completed the day but he only performed 
 
         light duty functions.  Defendant-employer referred claimant to 
 
         Charles V. Edwards, M.D.
 
         
 
              Dr. Edwards commenced treatment of claimant.  Dr. Edwards 
 
         diagnosed claimant as having "degenerative disc disease at L-4-5 
 
         and L-5- Sl with posterior bulging of the disc material.  No 
 
         frank herniation was evident.  No evidence of comrpession [sic] 
 
         of nerve roots were identified...."  Dr. Edwards also diagnosed 
 
         claimant as having acute lumbosacral strain.
 
         
 
              Dr. Edwards prescribed conservative treatment.  A magnetic 
 
         imaging scan was prescribed which demonstrated evidence of degen
 
         erative disk disease at L4/5 and L5/Sl with bulging at the L4/5 
 
         level and "some bulging" at the L5/Sl level without evidence of 
 
         disk herniation.
 
         
 
              On November 21, 1989, Dr. Edwards released claimant to 
 
         return to work.  However, on December 1, 1989, claimant was again 
 
         removed from work because of his back condition.
 
         
 
              Claimant was sent to William R. Hamsa, Jr., an orthopedic 
 
         surgeon.  Dr. Hamsa diagnosed claimant as having:
 
         
 
              My impression is still a muscular and ligamentous 
 
              injury to the low back, with some nonspecific neuritis.  
 
              My recommendations are still that only conservative 
 
              treatment is indicated.  The gentleman has been off 
 
              work three months, and I think he is rapidly reaching 
 
              the point where he is going to have to make a decision, 
 
              with his primary treating doctor, whether any more rest 
 
              is going to be helpful, or whether he should simply 
 
              return to work, accept his symptoms, and expect them to 
 
              quiet down with time.  I think this latter approach 
 
              would be the most reasonable, and he probably can work 
 
              by his pain tolerance.
 
         
 
         (Exhibit 2(a))
 
         
 
              Claimant also received an examination from Daniel L. 
 
         McKinney, M.D., a neurological surgeon.  Dr. McKinney also 
 
         diagnosed claimant as suffering from "a straining injury to his 
 
         lumbar spine...."
 
         
 
              For purposes of making an independent medical examination, 
 
         claimant went to see Charles Taylon, M.D., on January 15, 1990.  
 
         Dr. Taylon diagnosed claimant's condition as "a chronic mechani
 
         cal musculoligamentous injury to his low back...."  Dr. Taylon 
 
         rated claimant as having a three percent permanent partial 
 
         impairment.  Dr. Taylon restricted claimant to:
 
         
 
              At this time, I would restrict him to 25 pounds of 
 
              lifting.  He can not [sic] do any bending or stooping.  
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
              He is not to do any repetitive twisting, pushing or 
 
              pulling.  He may stand for two hours at a time and at 
 
              which time he should rest for ten minutes.  He can sit 
 
              for two hours at a time and at which time he should be 
 
              able to stand for ten minutes.
 
         
 
         (Ex. 5(d))
 
         
 
              Additionally, claimant was evaluated by Kip A. Burkman, M.D.  
 
         The physician evaluated claimant as of September 1, 1990.  Dr. 
 
         Burkman opined:
 
         
 
                 Patient's lumbosacral range of motions fall within 
 
              normals [sic] limits, thus do not contribute to his 
 
              disability.  I feel that he has a chronic pain syndrome 
 
              from a disc lesion which has not been operated on, and 
 
              according to page 73 of the Third Edition of the AMA 
 
              Guides to the Evaluation of Permanent Impairment I 
 
              would rate this to be a 5% whole body impairment.  He 
 
              also has a sleep deprivation which I feel can con
 
              tribute to the perpetuation of pain which I would rate 
 
              as 2%.  He has a decreased sex life with pain in this 
 
              regard which I would rate as 5% impairment.  He has an 
 
              antalgic gait which I would rate again under the resid
 
              uals of the 5% previously mentioned under the disc 
 
              pathology.  He also has decreased sensation in the 
 
              right Sl and L4 areas which on the right lower extrem
 
              ity taken together I would rate as 1% whole body 
 
              impairment (or 2% right lower extremity impairment).  
 
              The left medial calf lack of sensation would equal 1% 
 
              lower extremity or converted to whole body would be 0%.  
 
              Taking these factors together and using the Third 
 
              Edition of the AMA Guide [sic] to the Evaluation of 
 
              Permanent Impairment I would rate Mr. Wise as having a 
 
              13% whole body permanent partial impairment rating.
 
         
 
         (Ex. 6(b))
 
         
 
              A functional capacity evaluation was conducted.  After the 
 
         evaluation, Dr. Burkman restricted claimant as follows:
 
         
 
              I feel that the patient would be capable of 50 pounds 
 
              occasional lifting, 20 pounds frequent lifting, 10 
 
              pounds constant lifting.  This would be the same for 
 
              carrying.  He should be able to do static standing and 
 
              sitting about 33% of the day.  He should be able to 
 
              kneel approximately 33% of the day, but is restricted 
 
              from doing crouching or repetitive squats type of work.  
 
              It would be inadvisable for him to do much more than 
 
              approximately 20% crawling.  With people having back 
 
              pain such as this it has been my experience that if he 
 
              could sit and stand on an alternate basis this would be 
 
              a optimum situation to maintain his comfort level over 
 
              a prolong period of day.  He may need more frequent 
 
              rest periods than previously, I would estimate this to 
 
              be about 10 minutes every 2 hours.  He may need to do 
 
              some back flexibility/stretching exercises during this 
 
              time in order to keep his back loose.  Regarding push
 
              ing and pulling he should be able to do approximately 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              35 pounds each up to 500 times per day.  Certainly any 
 
              person with chronic pain should avoid as much mental 
 
              stress as possible as this psychological factor can 
 
              increase the pain.
 
         
 
         (Ex. 6(f), page 7)
 
         
 
              Claimant obtained another evaluation pursuant to defendants' 
 
         request.  Claimant was examined on August 12, 1991, by Leonard E. 
 
         Weber, M.D., a neurologist.  Dr. Weber examined claimant for the 
 
         purpose of rendering an independent medical evaluation.
 
         
 
              Impression:
 
         
 
                 1.  A sudden pop in the low back while in forward          
 
                 flexion and twisting during job activities on         
 
                 8/17/89.
 
         
 
                 2.  Persistent low back discomfort in the region of             
 
              the L4/5 interspace, with periodic radiation to          
 
              the right flank, right buttock, and posterior                 
 
              aspect of the right thigh.
 
         
 
                 3.  Probable small tear of the annulus fibrosis of           
 
              the L4/5 disk with secondary interspinous and                 
 
              muscular soreness, as the cause of (1) and (2).
 
         
 
                 4.  Episodic numbness of the right ankle by history,            
 
              presumably secondary to past varicose vein               
 
              stripping.
 
         
 
                 5.  Inability to flex the left great toe, secondary             
 
              to a tendon laceration from a childhood injury                
 
              at the base of the left great toe.
 
         
 
              Comments and Recommendations:
 
         
 
              The diagnosis is as above.  When an individual feels a 
 
              pop in his back while they are in forward flexion, 
 
              bending to the side, and lifting, this is usually on 
 
              account of a tear of the annulus fibrosis of a lumbar 
 
              disk, less often due to ligamentous or muscular strain.
 
         
 
              I suspect a tear of the annulus fibrosis at L4/5, some
 
              thing that would be consistent with the level of his 
 
              discomfort, the lack of signs of overt herniation, only 
 
              bulging at the L4/5 interspace, and the episodic nature 
 
              of his left lower extremity symptoms, which do not go 
 
              below the knee (disk herniation with radiculopathy gen
 
              erally refers below the knee, but disk tears or muscu
 
              lar or ligamentous strains often refer to this area but 
 
              not below the knee).
 
         
 
              I believe that he could continue to work with the 
 
              restrictions.  The only restrictions would be that he 
 
              should observe proper lifting techniques in the course 
 
              of his daily activities, just as everyone should.  
 
              Further workup would not be needed and as far as treat
 
              ment of any residual discomfort he may perceive, 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              Tylenol for times of mild discomfort, or Tylenol with 
 
              codeine sparingly at times when his back was particu
 
              larly bothering him, would work as good as anything.  
 
              Because of the history of esophageal problems, he 
 
              apparently cannot take aspirin or non-steroidal 
 
              anti-inflammatory agents.
 
         
 
              From a practical stand point [sic] he has reached the 
 
              point of maximum medical improvement.  I base percent 
 
              permanent impairment on the Guides to the Evaluation of 
 
              Permanent Impairment, the third edition published by 
 
              the American Medical Association.  Based on these 
 
              guidelines, the per cent [sic] permanent impairment 
 
              relative to the incident of 8/17/89 would be 5 percent 
 
              whole person impairment, given for persistent low back 
 
              discomfort for more than six months, associated with 
 
              minimal changes on radiographic testing (namely a tear 
 
              of the annulus fibrosis at the L4/5 level, with L4/5 
 
              bulging in the absence of herniation).  With normal 
 
              strength, sensation, and a range of motion of the back 
 
              that does not meet the validity criteria of the AMA 
 
              guidelines, further percent impairment cannot be given.  
 
              While I agree with the assignment of 5 percent whole 
 
              person impairment for the disk problems, I could not 
 
              demonstrate any sensory changes presently in the right 
 
              lower limb, and would not consider the affect of dis
 
              comfort on his sleep or sex life to be a permanent 
 
              impairment.
 
         
 
         (Ex. 10, pages 5 & 6)
 
         
 
              Claimant again returned to work with defendant-employer on 
 
         April 6, 1990.  He has been working there since that time.  
 
         Claimant returned to his former position.  He is still operating 
 
         a forklift truck on a daily basis.  Claimant engages in some 
 
         lifting.  He works overtime and he had missed no time during 1990 
 
         and 1991 because of his back condition.
 
         
 
                                conclusions of law
 
         
 
              The first issue to address is the nature and extent of 
 
         claimant's permanent disability, if any.
 
         
 
              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 
 
         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 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         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).
 
         
 
              In the case at hand, three physicians have determined 
 
         claimant has a permanent functional impairment.  Three ratings 
 
         have been given ranging from 3 percent to 13 percent.  Claimant 
 
         is restricted from lifting greater than 50 pounds.  He is to 
 
         avoid frequent bending and twisting.  Claimant is to also alter
 
         nate standing and sitting.  Claimant's restrictions, while not 
 
         severe, may limit claimant's chances of employment.
 
         
 
              Claimant, however, is currently employed at his former posi
 
         tion, and at a higher rate of pay.  Claimant's job is within his 
 
         restrictions since defendant-employer is willing to accommodate 
 
         claimant.  Defendant-employer is to be commended for its efforts 
 
         to accommodate claimant's limitations.  Defendant-employer is a 
 
         fine model for other employees.
 
         
 
              Claimant's education is a negative factor.  He has not been 
 
         able to obtain a GED.  He has only completed the eighth grade.  
 
         His lack of education will frustrate future employment opportuni
 
         ties.  Claimant's heart condition is an impediment to employment.
 
         
 
              After considering all the evidence, after personally observ
 
         ing claimant, and after having heard the testimony, it is the 
 
         determination of the undersigned that claimant has a 10 percent 
 
         permanent partial disability.
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              The next issue to determine is the issue of healing period 
 
         benefits.
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical recov
 
         ery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
         interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              In the case before the undersigned, claimant is requesting 
 
         healing period benefits for the periods:  August 18, 1989 to 
 
         November 21, 1989 and December 4, 1989 to April 8, 1990.  The 
 
         deputy is in agreement with the major portion of claimant's claim 
 
         for healing period benefits.  Claimant was incapable of working 
 
         during the aforementioned periods.  However, as of April 6, 1990, 
 
         Dr. Taylon released claimant to his former position.  On April 6, 
 
         1990, claimant had reached maximum medical improvement.  Claimant 
 
         is entitled to 31.285 weeks of healing period benefits for August 
 
         18, 1989 through November 21, 1989 and from December 4, 1989 
 
         through April 5, 1990.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant fifty (50) weeks of per
 
         manent partial disability benefits at the corrected stipulated 
 
         rate of two hundred sixty-two and 59/l00 dollars ($262.59) per 
 
         week commencing on April 6, 1990.
 
         
 
              Defendants are to also pay unto claimant thirty-one point 
 
         two-eight-five (31.285) weeks of healing period benefits at the 
 
         corrected stipulated rate of two hundred sixty-two and 59/l00 
 
         dollars ($262.59) per week for the period from August 18, 1989 
 
         through November 21, 1989 and from December 4, 1989 through April 
 
         5, 1990.
 
         
 
              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 pur
 
         suant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.l.
 
         
 
              Costs of the action shall be assessed to defendants pursuant 
 
         to rule 343 IAC 4.33.
 
         
 
         
 
              Signed and filed this ____ day of February, 1992.
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P O Box 1588
 
         Council Bluffs  IA  51502
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         701 Pierce St  STE 200
 
         P O Box 3086
 
         Sioux City  IA  51102
 
         
 
         Mr. James Harris
 
         Attorney at Law
 
         STE 101 Regency One Bldg
 
         10050 Regency Circle
 
         Omaha  NE  68114
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1800; 1803
 
            Filed February 26, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            TERRY WISE,                     :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :         File No. 926298
 
            CRESLINE PLASTIC PIPE CO., INC.,:
 
                                            :      A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :         D E C I S I O N
 
            and                             :
 
                                            :
 
            AMERICAN MOTORISTS INSURANCE,   :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
            1800; 1803
 
            Claimant sustained a 10 percent permanent partial disability 
 
            as a result of a work-related injury on August 17, 1989.  
 
            Claimant returned to his former position at the same rate of 
 
            pay.  Defendant-employer did everything in its power to 
 
            accommodate claimant.  The employer is a fine model for 
 
            accommodating its employees.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         SHERRI L. SCHOMAKER,       
 
                     
 
              Claimant,   
 
                     
 
         vs.                                    File Nos. 943951
 
                                                          926343
 
         TWILIGHT STEAKHOUSE & LOUNGE,  
 
                                                  A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         CITIZENS INSURANCE CO., and     
 
         ALLIED MUTUAL INSURANCE CO.,    
 
         
 
              Insurance Carriers,   
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 21, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants, Twilight Steakhouse & Lounge and Citizens Insurance 
 
         Company, shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of July, 1993.
 
         
 
         
 
                                     ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Redge O. Berg
 
         Attorney at Law
 
         17 West 4th Street
 
         P O Box 3054
 
         Spencer, Iowa  51301
 
         
 
         Mr. Paul W. Deck, Jr.
 
         Attorney at Law
 
         635 Frances Building
 
         Sioux City, Iowa  51101
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce Street  STE 200
 
         P. O. Box 3086
 
         Sioux City, Iowa  51102
 
         
 
 
            
 
 
 
                 
 
 
 
 
 
                                           5-1402.30; 5-1802; 5-1803
 
                                           Filed July 27, 1993
 
                                           Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
         
 
            SHERRI L. SCHOMAKER,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.                                    File Nos. 943951
 
                                                             926343
 
            TWILIGHT STEAKHOUSE & LOUNGE,  
 
                                                      A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            CITIZENS INSURANCE CO., and     
 
            ALLIED MUTUAL INSURANCE CO.,    
 
            
 
                 Insurance Carriers,   
 
                 Defendants.      
 
            ____________________________________________________________
 
                   
 
            5-1402.30; 5-1802; 5-1803
 
            Claimant aggravated a preexisting back condition on two 
 
            occasions.  The first was temporary.  The second covered 26 
 
            weeks of healing period and 20 percent permanent partial 
 
            disability.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRI L. SCHOMAKER,          :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 926343
 
            vs.                           :                943951
 
                                          :   
 
            TWILIGHT STEAKHOUSE & LOUNGE, :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CITIZENS INSURANCE CO. and    :
 
            ALLIED MUTUAL INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Sherri L. Schomaker against her former employer, 
 
            Twilight Steakhouse & Lounge, and its two insurance 
 
            carriers.  Allied Mutual Insurance is the carrier for the 
 
            alleged August 25, 1989 injury (File No. 926343) while 
 
            Citizens Security is the insurance carrier for the alleged 
 
            March 23, 1990 injury (File No. 943951).  Claimant seeks 
 
            compensation for healing period, permanent partial 
 
            disability and recovery of medical expenses.
 
            
 
                 The case was heard at Storm Lake, Iowa, on June 8, 
 
            1992.  The record consists of the testimony from Sherri 
 
            Schomaker and John E. Kelly, M.D.  The record also contains 
 
            joint exhibits 1 through 22 and defendants' exhibits A 
 
            through D, including D-1.  The testimony of John E. Kelly, 
 
            M.D., is received into evidence in this case despite the 
 
            fact that the claimant's witness list naming Dr. Kelly was 
 
            mailed only eight days prior to the hearing, rather than 
 
            fifteen days provided in the hearing assignment order.  The 
 
            delay is found to have not been prejudicial.  Dr. Kelly was 
 
            a treating physician of whom all parties were fully aware 
 
            long prior to the hearing.  Further, his reports and 
 
            records, exhibits 18, 19 and 20, are in the record of this 
 
            case.  His testimony at hearing was not inconsistent with 
 
            those reports.  It is therefore determined that no prejudice 
 
            would result from including his testimony in the record.  
 
            The objection raised on behalf of the employer and Allied 
 
            Mutual Insurance Co. is therefore overruled in its entirety.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 Sherri Schomaker is a 33-year-old woman who obtained 
 
            her high school diploma in May 1991 after having dropped out 
 
            of high school when she was a teenager.  Most of Sherri's 
 
            work history has involved work as a bartender, waitress or 
 
            cashier.  She commenced employment with Twilight Steakhouse 
 
            & Lounge in January of 1986.  Over the intervening three 
 
            years, she performed virtually every function including 
 
            cooking, waiting tables, making bank deposits, bartender and 
 
            cashier.  In August of 1989, Sherri was earning $3.75 per 
 
            hour and working 36 to 38 hours per week.  She also received 
 
            tips of approximately $50 per week.
 
            
 
                 Sherri has a history of back problems extending well 
 
            prior to 1986 but according to her testimony those problems 
 
            did not cause her to miss work before 1989.  Prior to 1989, 
 
            she had not been hospitalized for her back.  Exhibit 4 at 
 
            page 10 confirms her testimony that she was seeing John P. 
 
            McCarthy, D.C., for back problems in February of 1989.  
 
            Pages 7, 8 and 9 of exhibit 4 confirm that she also saw Dr. 
 
            McCarthy for her back in March, April, May, June and August 
 
            of 1989.  She saw him on five different occasions during the 
 
            month of August 1989 prior to August 25.
 
            
 
                 Sherri's testimony that she slipped on water or food on 
 
            the floor while carrying plates is found to be correct as is 
 
            her description that she fell, but caught herself with her 
 
            arm before falling completely to the floor.  Sherri 
 
            continued to treat with Dr. McCarthy from August 28, 1989 
 
            through September 18, 1989, when he released her from 
 
            treatment noting that she had improved from the injury and 
 
            returned to her customary state of chronic back difficulty 
 
            (Jt. Ex. 4, pp. 5 and 6).  Thereafter, Sherri continued to 
 
            treat on an infrequent basis seeing Dr. McCarthy on November 
 
            21, 1989 and January 19, 1990.
 
            
 
                 Commencing on February 12, 1990, Sherri resumed a 
 
            course of frequent care from Dr. McCarthy.  The records 
 
            indicate that she obtained treatment on February 12, 13, 14 
 
            and 16, 1990, and again on March 8, 19 and 22, 1990, prior 
 
            to the date of her second injury which is March 23, 1990.  
 
            Dr. McCarthy's notes confirm Sherri's testimony that the 
 
            slip and fall in the parking that occurred on March 7, 1990, 
 
            primarily injured her neck and that she recovered from that 
 
            injury.
 
            
 
                 Sherri testified that on March 23, 1990, while carrying 
 
            as many as four pitchers of beer at a time to patrons having 
 
            a party, she experienced an increase in low back pain.  She 
 
            again sought treatment from Dr. McCarthy but without 
 
            success.  She next obtained care from Dr. Kelly and was 
 
            hospitalized.  Her last day of work was March 30, 1990.  She 
 
            has not returned to work at Twilight Steakhouse & Lounge 
 
            since that date.  She has subsequently held a few temporary 
 
            part-time positions working in her customary field of 
 
            employment with hourly earnings comparable to those she 
 
            earned at the Twilight Steakhouse & Lounge.
 
            
 
                 Dr. Kelly hospitalized Sherri at the Spencer Municipal 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Hospital from April 6 through April 13, 1990.  She was 
 
            treated with bed rest, muscle relaxants and anti-
 
            inflammatories.  Her condition gradually improved but did 
 
            not completely resolve.  A CT scan and other diagnostic 
 
            tests were conducted.  She was diagnosed as having lumbar 
 
            disc disease and central disc herniation at the L5-S1 level 
 
            of her spine (Jt. Ex. 6, pp. 2 and 9).  Sherri was seen in 
 
            consultation by orthopedic surgeons Ricky D. Wilkerson, 
 
            D.O., and J. William Follows, M.D.  A variety of 
 
            conservative treatment measures were employed including 
 
            therapy, epidural steroid injections and prescription 
 
            medications.  Her symptoms have not completely resolved (Jt. 
 
            Ex. 21).  Sherri has also been evaluated at the University 
 
            of Iowa Hospitals and Clinics (Jt. Ex. 16) and by J. Michael 
 
            Donohue, M.D. (Jt. Ex. 7).  Shortly prior to hearing, she 
 
            was evaluated by John J. Dougherty, M.D. (Jt. Ex. 15).
 
            
 
                 The orthopedic surgeons all seem to agree that Sherri 
 
            has disc herniation but that she remains to be, for the 
 
            most, neurologically normal and they are all reluctant to 
 
            recommend that surgery be performed.  Dr. Dougherty 
 
            indicated that he was not particularly opposed to surgery if 
 
            Sherri's complaints were sufficiently severe that she 
 
            desired to undergo surgery but he did not strongly recommend 
 
            it (Defendants' Exhibit C, page 24).  It is found that the 
 
            consensus of the physicians seems to be that surgery should 
 
            not be conducted at this time.  That consensus is found to 
 
            be correct.
 
            
 
                 There is a variety of opinions regarding the cause of 
 
            Sherri's back problems.  Dr. Dougherty is unwilling to 
 
            attribute the cause to either one of the two injuries which 
 
            Sherri sustained (Def. Ex. C, pp. 40-42).  He stated that 
 
            Sherri probably had disc degeneration prior to 1989, that 
 
            both of the injuries in this case aggravated that condition 
 
            and that she is on a slow, ongoing, downhill course (Def. 
 
            Ex. C, pp. 10-12, 18, 22, 26, 27 and 33).  Dr. Dougherty 
 
            also stated that he was unable to pinpoint the disc 
 
            herniation to any particular incident and that it could have 
 
            preexisted February 1989 (Def. Ex. C, pp. 12, 13, 40-42).
 
            
 
                 Dr. Kelly, based on claimant's testimony, attributes 
 
            the serious back problems to the August 25, 1989 injury 
 
            (Def. Ex. 18).  It is noted that Dr. Kelly had requested in 
 
            January of 1989 that claimant's back be evaluated at the 
 
            spine clinic at the University of Iowa Hospitals (Jt. Ex. 
 
            18; Def. Ex. A).  Dr. Kelly bases his opinion in part on 
 
            claimant's testimony and statements that her back never 
 
            recovered from the 1989 fall.
 
            
 
                 Dr. Wilkerson felt that claimant's back problems were 
 
            attributable to "her injury on the job." (Jt. Ex. 21, p. 1).  
 
            He also explains that this is based upon an absence of 
 
            previous back problems.  That history is, of course, 
 
            incorrect.  Dr. Donohue does not express an opinion 
 
            regarding causation.
 
            
 
                 It is found that the injury Sherri sustained on August 
 
            25, 1989 was a temporary aggravation of a preexisting 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            degenerative condition in her spine.  She did not miss any 
 
            work as a result of that incident that exceeded three days 
 
            in duration.  As stipulated by the parties at hearing, all 
 
            of her charges with Dr. McCarthy have been paid and there is 
 
            no reason to make an award of medical expenses for that 
 
            injury.  Sherri testified that her back did not get better 
 
            after that 1989 injury but the records from Dr. McCarthy are 
 
            to the contrary.  The fact that she went so long between 
 
            visits without receiving other care for her back is a very 
 
            strong indication that it was not bothering her very much at 
 
            that time.  The greater weight of the evidence in this case 
 
            is to the effect that the August 25, 1989 injury was only a 
 
            temporary aggravation of Sherri's preexisting condition.  
 
            Dr. McCarthy's note is found to be correct (Jt. Ex. 4, pp. 5 
 
            and 6).
 
            
 
                 With regard to the March 23, 1990 injury, it is noted 
 
            that Sherri's back had apparently flared up in February as 
 
            shown by the resumption of frequent trips to Dr. McCarthy.  
 
            There is, however, a substantial change in her 
 
            symptomatology commencing immediately after March 23, 1990.  
 
            It was at that point that Dr. McCarthy's treatments ceased 
 
            providing relief.  Sherri then sought treatment from Dr. 
 
            Kelly, was hospitalized and entered into a course of 
 
            orthopedic care.  Sherri was treated by Dr. Wilkerson and 
 
            Dr. Follows in May and June of 1990.  She was seen by Dr. 
 
            Donohue in August of 1990.  On September 28, 1990, she was 
 
            seen at the University of Iowa Hospitals and Clinics.  In 
 
            that report, exhibit 16, page 3, it is recommended that she 
 
            return to work with restrictions.  It is found that 
 
            September 28, 1990 is the point of time at which it was 
 
            determined that further significant improvement from the 
 
            injury was not anticipated.
 
            
 
                 Sherri's back has remained symptomatic.  She is 
 
            enrolled at the Iowa Lakes Community College and is 
 
            progressing very well as a student in the office and 
 
            business technology course of instruction.  She is studying 
 
            to be an administrative assistant (Def. Exs. 11, 12 and 13).  
 
            Based upon her success as a student so far, it appears 
 
            probable that Sherri has the intellectual capacity to 
 
            successfully complete the program.  Her expected earnings if 
 
            she completes the program are considerably in excess of what 
 
            she earned prior to her injuries.
 
            
 
                 It is found that the March 23, 1990 injury did produce 
 
            some degree of permanent disability affecting Sherri.  While 
 
            her back had previously been symptomatic, she had always 
 
            been able to continue working.  The more recent injury made 
 
            her unable to continue working in her customary field of 
 
            employment.  It caused a very substantial change in her 
 
            chronic symptomatology which had preexisted.  It is 
 
            recognized that she had increased the frequency of her 
 
            visits to Dr. McCarthy approximately five or six weeks prior 
 
            to the date of this injury but those same records show a 
 
            distinct change in her symptoms and the lack of relief from 
 
            his treatments immediately following the March 23, 1990 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury.  Her employability and capacity to earn would be 
 
            quite dismal if it were not for her willingness and aptitude 
 
            for retraining.
 
            
 
                 Sherri has incurred a number of medical expenses as 
 
            shown in joint exhibits 22 and 16.  All the expenses shown 
 
            in exhibit 22 are corroborated by the other medical records 
 
            except for the $700 charge on page 11.  Nothing in the 
 
            record that the undersigned could identify showed the nature 
 
            of treatments provided to claimant on January 12, 1991, the 
 
            date of service noted on the bill.  The charges from the 
 
            University of Iowa are clearly shown to have been treatment 
 
            for Sherri's back condition.  These charges total $4,072.79.
 
            
 
                                conclusions of law
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).  The 
 
            "arising out of" requirement is satisfied by showing a 
 
            causal relationship between the employment and the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986).
 
            
 
                 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstan     N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially 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 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Since 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 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson, 255 
 
            Iowa 1112, 125 N.W.2d 251; McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The August 25, 1989 injury is found to have been only a 
 
            temporary aggravation of a preexisting condition for which 
 
            no additional benefits are payable.  Claimant has failed to 
 
            carry the burden of proving that any permanent disability 
 
            resulted from the 1989 injury.
 
            
 
                 The evidence in this case does prove by a preponderance 
 
            of the evidence that the March 23, 1990 injury produced both 
 
            temporary and permanent disability.  Sherri is found to be 
 
            entitled to recover healing period compensation commencing 
 
            on March 31, 1990, and running through September 28, 1990, a 
 
            span of 26 weeks.
 
            
 
                 It has been previously found that the 1990 injury did 
 
            cause some permanent disability.  While the precise extent 
 
            of permanent impairment has not been determined and need not 
 
            be determined, it is clear that some resulted from the more 
 
            recent injury.  When assessing industrial disability, a 
 
            comparison of preinjury earnings with post-injury earnings 
 
            is often relied upon.  That method is not appropriate in 
 
            this case, however, since Sherri has not resumed full-time 
 
            employment and is engaging in furthering her education.  The 
 
            fact that she will likely earn more upon completing the 
 
            education does not, however, establish that she sustained no 
 
            permanent disability from an industrial standpoint.  It is 
 
            only by devoting two years of her years to training and 
 
            incurring expense and forsaking earnings that she is able to 
 
            do so.  The correct method of evaluating the degree of 
 
            industrial disability is to base it upon the circumstances 
 
            that exist at the end of the healing period, not upon the 
 
            earning capacity of the individual as it exists years later 
 
            following a concentrated course of study which was not 
 
            provided by the employer.  Meier v. John Kirby, Inc., file 
 
            no. 826937 (Appeal Decision filed November 31, 1989); 
 
            Stewart v. Crouse Cartage, file number 738644 (Appeal 
 
            Decision filed February 20, 1987).
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is determined that Sherri Schomaker 
 
            sustained a 20 percent loss of earning capacity and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            industrial disability as a result of the March 23, 1990 
 
            injury.  This entitles her to recover 100 weeks of 
 
            compensation for permanent partial disability.
 
            
 
                 Under the provisions of Iowa Code section 85.27 as a 
 
            result of the March 23, 1990 injury, Sherri is also entitled 
 
            to recover the following medical expenses:
 
            
 
                 Spencer Municipal Hospital         $2,649.02
 
            
 
                 Iowa Lakes Orthopedic, P.C.            88.00
 
            
 
                 Northwest Iowa Anesthesia Assoc.      160.00
 
            
 
                 Spencer Therapy and Rehab             135.00
 
            
 
                 Diagnostic Radiologic Imaging         151.00
 
            
 
                 Spencer Pharmacy                      106.77
 
            
 
                 University of Iowa Hospitals and
 
                    Clinics                            783.00
 
            
 
                               Total                $4,072.79
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that in file number 943951 
 
            which deals with the March 23, 1990 injury, defendant 
 
            employer and Citizens Insurance Co. pay Sherri Schomaker 
 
            twenty-six (26) weeks of compensation for healing period 
 
            payable commencing March 31, 1990, and one hundred (100) 
 
            weeks of compensation for permanent partial disability 
 
            payable commencing September 29, 1990, at the stipulated 
 
            rate of one hundred sixteen and 22/100 dollars ($116.22) per 
 
            week. 
 
            
 
                 All the foregoing weekly compensation is past due and 
 
            owing and shall be paid to the claimant in a lump sum 
 
            together with interest computed at the rate of ten percent 
 
            (10%) per annum in accordance with Iowa Code section 85.30 
 
            from date each weekly payment came due until the date of 
 
            actual payment.
 
            
 
                 IT IS FURTHER ORDERED that under file number 943951, 
 
            the
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            defendant employer and Citizens Insurance Co. pay the 
 
            following medical expenses:
 
            
 
                 Spencer Municipal Hospital         $2,649.02
 
            
 
                 Iowa Lakes Orthopedic, P.C.            88.00
 
            
 
                 Northwest Iowa Anesthesia Assoc.      160.00
 
            
 
                 Spencer Therapy and Rehab             135.00
 
            
 
                 Diagnostic Radiologic Imaging         151.00
 
            
 
                 Spencer Pharmacy                      106.77
 
            
 
                 University of Iowa Hospitals and
 
                    Clinics                            783.00
 
            
 
                               Total                $4,072.79
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing in 
 
            file number 926343 as everything she is entitled to receive 
 
            has been paid.
 
            
 
                 IT IS FURTHER ORDERED that the costs in file numbers 
 
            943951 and 926343 are assessed against the defendant 
 
            employer and Citizens Insurance Co., in accordance with rule 
 
            343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendant employer and 
 
            Citizens Insurance Co. file claim activity reports as 
 
            requested by this agency, pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Redge O Berg
 
            Attorney at Law
 
            17 W Fourth St
 
            P O Box 3054
 
            Spencer IA 51301-3054
 
            
 
            Ms Judith ann Higgs
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102-3086
 
            
 
            Mr Paul W Deck Jr
 
            Attorney at Law
 
            635 Frances Bldg
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Sioux City IA 51101
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1402.30; 5-1803; 5-1803
 
                                          Filed December 21, 1992
 
                                          Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRI L. SCHOMAKER,          :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 926343
 
            vs.                           :                943951
 
                                          :   
 
            TWILIGHT STEAKHOUSE & LOUNGE, :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CITIZENS INSURANCE CO. and    :
 
            ALLIED MUTUAL INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.30; 5-1802; 5-1803
 
            Claimant aggravated a preexisting back condition on two 
 
            occasions.  The first was temporary.  The second covered 26 
 
            weeks of healing period and 20% permanent partial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HENRY W. PUNT,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  926356
 
            JOE'S READY MIX,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            
 
                 
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Henry W. 
 
            Punt as a result of injuries to his back which occurred on 
 
            August 14, 1989.  Defendants admitted compensability for the 
 
            injury, paid weekly benefits and paid medical benefits.  The 
 
            issue of Iowa Code section 85.27 benefits was not raised by 
 
            claimant at the time of prehearing and, therefore, is not an 
 
            issue in this proceeding pursuant to paragraph three of the 
 
            September 29, 1990, hearing assignment order.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on February 15, 1991.  The record in the proceeding 
 
            consists of claimant's exhibits 1 through 8, 10, 12 and 13; 
 
            defendants' exhibits A through Q; testimony from claimant, 
 
            Daniel Hoffman, Melissa Pierce and Patricia Conway.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  The extent of claimant's entitlement to healing 
 
            period benefits.
 
            
 
                 2.  The extent of claimant's entitlement to permanent 
 
            partial disability under Iowa Code section 85.34(2)(u); and
 
            
 
                 3.  The commencement date for permanent partial 
 
            disability.
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant, Henry Punt, started work for employer in late 
 
            June 1989.  On August 14, 1989, while operating a concrete 
 
            saw in the course of employment with employer, he injured 
 
            his low back.  Claimant was initially treated by Mark Hagen, 
 
            D.C., on August 21, 1989 (exhibit 2).  He was taken off work 
 
            by Dr. Hagen starting on August 21, 1989 and continued off 
 
            work during a long period of convalescence (ex. 2, page 16).
 
            
 
                 Claimant was eventually referred to Leonel Herrera, 
 
            M.D., and then to Ralph F. Reeder, M.D., for further 
 
            treatment.  Dr. Reeder and Dr. Herrera diagnosed claimant's 
 
            injury as an L5-S1 herniated disc (ex. 4, p. 1; ex. 6, p. 
 
            24).  Surgery for the herniated disc was performed by Dr. 
 
            Reeder.
 
            
 
                 On January 9, 1990, Dr. Reeder stated that claimant had 
 
            reached maximum medical improvement and had sustained an 8 
 
            percent permanent partial impairment to the body as a whole.  
 
            He was discharged from care with a 50-pound lifting 
 
            restriction.  However, subsequent to January 9, 1990, 
 
            claimant was still under active treatment with Dr. Herrera 
 
            (ex. 4, p. 4).  Claimant continued to receive intensive 
 
            physical therapy under the direction of Dr. Herrera until 
 
            May 15, 1990, when he achieved maximum medical improvement 
 
            (ex. 4, p. 15).
 
            
 
                 Dr. Herrera opined on December 12, 1990, that claimant 
 
            had sustained a 10 percent permanent partial impairment and 
 
            should have work restrictions of no lifting over 50 pounds 
 
            and no repetitive bending or stooping from the waist (ex. 4, 
 
            p. 18).  Dr. Reeder, on August 20, 1990, increased his 
 
            permanent partial impairment rating to 10 percent (ex. 6, p. 
 
            87).  No contrary rating of impairment was offered.  
 
            
 
                 It should be noted that as of May 15, 1990, claimant 
 
            had difficulty lifting over 20 pounds, (ex. 4, p. 14).  
 
            Melissa Pierce documented claimant's inability to lift over 
 
            25 pounds and an ability to occasionally lift 6 to 25 pounds 
 
            (ex. 12).  Claimant testified at hearing that he cannot lift 
 
            more than 15 pounds without experiencing low back pain.
 
            
 
                 Having considered all the evidence, it is found that as 
 
            a result of the August 14, 1989 injury, claimant is limited 
 
            to lifting no more then 20 pounds.  This is based upon Dr. 
 
            Herrera's office notes of May 14, 1989, the objective 
 
            documentation provided by Melissa Pierce, who is the 
 
            occupational therapist that worked with claimant and 
 
            claimant's testimony.
 
            
 
                 The first issue to be decided is the length of 
 
            claimant's healing period.  Claimant was first restricted 
 
            from work on August 23, 1989, pursuant to the stipulation of 
 
            paragraph A-4 in the prehearing report and order approving 
 
            the same.  Therefore, the start of the healing period is 
 
            August 23, 1989.
 
            
 
                 Several possible dates of maximum medical improvement 
 
            were provided.  On January 9, 1990, Dr. Reeder, the treating 
 
            surgeon, found maximum medical improvement (ex. 8, p. 2).  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            This date is rejected in that claimant continued on with 
 
            regular physical therapy and treatment until May 1990.  It 
 
            is found that claimant reached the point where significant 
 
            improvement was no longer expected on May 15, 1990.  Dr. 
 
            Herrera ended physical therapy on that date and the records, 
 
            when viewed as a whole, along with the live testimony, 
 
            demonstrate that no significant improvement was achieved 
 
            after May 15, 1990.
 
            
 
                 It should be noted that Dr. Reeder and Dr. Herrera 
 
            repeated their statements of maximum medical improvement 
 
            subsequent to May 15, 1990.  However, there is no evidence 
 
            to show that claimant was under continuous care or achieved 
 
            any significant improvement subsequent to May 15, 1990.
 
            
 
                 It is found that claimant's healing period begins 
 
            August 23, 1989 and continues through May 15, 1990.
 
            
 
                 The next issue concerns the commencement date for 
 
            payment of permanent partial disability.  Having found that 
 
            the healing period ends on May 15, 1990, it follows that 
 
            permanent partial disability commences on May 16, 1990.
 
            
 
                 The final issue to be resolved concerns claimant's 
 
            entitlement to permanent partial disability under sections 
 
            85.34(2)(u).  When assessing industrial disability 
 
            consideration must be given to claimant's age, education, 
 
            work experience, permanent impairment, work restrictions and 
 
            employer's offer of work or vocational rehabilitation.
 
            
 
                 Claimant, age 46 on the date of injury, graduated from 
 
            high school in 1960 and attained a one year accounting 
 
            degree from a business college in 1961.  Claimant's work 
 
            experience is varied.  He has experience that ranges from 
 
            heavy laborer to working manager of department stores (ex. 
 
            12, p. 4).  He has demonstrated periods of steady employment 
 
            as well as periods of very unsteady employment (ex. L).  
 
            Much of claimant's work experience required occasional heavy 
 
            lifting.
 
            
 
                 However, prior to the August 14, 1989, injury claimant 
 
            had been in an automobile accident that resulted in a 5 to 8 
 
            percent body as a whole impairment as a result of low back 
 
            injuries (ex. L).  Claimant was assigned permanent work 
 
            restrictions as a result of the 1987 low back injury 
 
            consisting of no lifting over 40 pounds and no constant 
 
            heavy lifting.  Claimant testified, under oath, on August 2, 
 
            1988, that he was not able to go back to his job doing 
 
            construction as a result of the low back injury of April 19, 
 
            1987 (ex. H, pp. 122-124; ex. J).
 
            
 
                 It is found that the April 19, 1987, low back injury 
 
            was a cause of permanent partial disability and permanent 
 
            work restrictions.  This fact tends to lower claimant's 
 
            industrial disability as a portion of his present low back 
 
            problem preexisted the August 14, 1989 injury.
 
            
 
                 Claimant's earnings are a consideration when assessing 
 
            industrial disability.  Claimant was earning $5.25 per hour 
 
            on August 14, 1989.  He now has the capacity to earn between 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            $4.50 and $5.50 per hour according to Patricia Conway, who 
 
            is defendants' vocational rehabilitation expert.  Conway 
 
            testified that $4.50 is now the minimum wage.
 
            
 
                 James Rogers is a vocational rehabilitation expert 
 
            hired by claimant.  Rogers opined that the 20-pound work 
 
            restriction may reduce claimant's overall access to the job 
 
            market by 50 percent (ex.. 12, p. 6).  However, Rogers did 
 
            not factor in claimant's prior low back injury which 
 
            resulted in permanent work restrictions and impairment.  
 
            
 
                 Another factor to be considered is permanent partial 
 
            impairment. Claimant's permanent impairment was rated at 10 
 
            percent of the body as a whole by both of the primary 
 
            treating physicians.  No contrary opinions of impairment 
 
            were offered.
 
            
 
                 In this case, the employer did not offer to return 
 
            claimant to work after the healing period had ended.  
 
            Instead, defendants offered the services of Patricia Conway, 
 
            a vocational rehabilitation specialist in order to assist 
 
            with job placement.  Claimant did not accept the service 
 
            until late in 1990 because James Rogers was allegedly 
 
            handling the job placement (exs. L & O).  It is found that 
 
            defendants made a good faith effort to offer claimant job 
 
            placement services. 
 
            
 
                 Having considered all of the material factors, it is 
 
            found that as a result of the August 14, 1989, low back 
 
            injury, claimant sustained a 25 percent industrial 
 
            disability.  The entire 25 percent award is attributed to 
 
            the August 14, 1989, injury as opposed to the 1987 low back 
 
            injury.  The preexisting disability was considered when 
 
            assigning the present disability and it is found that the 
 
            August 14, 1989, injury alone and of itself resulted in an 
 
            additional 25 percent industrial disability.
 
            
 
                 Claimant alleged that he is an odd-lot employee.  
 
            Claimant's allegation is clearly without merit.  In order to 
 
            prove odd-lot, the injury must make the worker incapable of 
 
            obtaining employment in any well known branch of the labor 
 
            market.  Claimant's vocational rehabilitation expert 
 
            declared that claimant is employable (ex. 12, p. 6).  On 
 
            that basis the claim for odd-lot status fails.
 
            
 
                                        
 
            
 
                                conclusions of law
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The end of the healing period occurs at the time when 
 
            the physicians indicate that no further improvement is 
 
            forthcoming.  It is not determined by hindsight looking back 
 
            to find the point at which recovery ceased.  Thomas v. 
 
            William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 
 
            1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 
 
            (Iowa App. 1981).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that he is entitled to healing period benefits beginning 
 
            August 23, 1989 through May 15, 1990.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton, supra, a worker becomes 
 
            an odd-lot employee when an injury makes the worker 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  An odd-lot worker is thus totally 
 
            disabled if the only services the worker can perform are so 
 
            limited in quality, dependability, or quantity that a 
 
            reasonably stable market for them does not exist.  Id., 
 
            citing Lee v. Minneapolis Street Railway Company, 230 
 
            Minn.315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-
 
            lot allocates the burden of production of evidence.  If the 
 
            evidence of degree of obvious physical impairment, coupled 
 
            with other facts such as claimant's mental capacity, 
 
            education, training or age, places claimant prima facie in 
 
            the odd-lot category, the burden should be on the employer 
 
            to show that some kind of suitable work is regularly and 
 
            continuously available to the claimant.  Certainly in such 
 
            cases it should not be enough to show that claimant is 
 
            physically capable of performing light work and then round 
 
            out the case for noncompensable by adding a presumption that 
 
            light work is available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Claimant has failed his burden in proving that he is 
 
            incapable of obtaining employment in any well known branch 
 
            of the labor market.  His claim of odd-lot status fails.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 25 
 
            percent permanent partial disability under Iowa Code section 
 
            85.34(2)(u) as a result of the August 14, 1989, low back 
 
            injury.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 The commencement date for permanent partial disability 
 
            is May 16, 1990, as that date coincides with the end of the 
 
            healing period.
 
            
 
                 A deputy commissioner is without jurisdiction to 
 
            consider an issue, not listed as an issue on the hearing 
 
            assignment order.  See Joseph Presswood v. Iowa Beef 
 
            Processors, (Appeal Decision filed November 14, 1986) 
 
            holding an issue not noted on the hearing assignment order 
 
            is an issue that is waived.
 
            
 
                 Claimant failed to raise Iowa Code 85.27 benefits as an 
 
            issue at the time of prehearing and it is, therefore, not an 
 
            issue in this proceeding.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant healing period benefits 
 
            at the rate of one hundred eighty-one and 82/100 dollars 
 
            ($181.82) for the period August 23, 1989 through May 15, 
 
            1990.
 
            
 
                 Defendants are to pay claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at the 
 
            rate of one hundred eight-one and 82/100 dollars ($181.82) 
 
            per week commencing May 16, 1990.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Edward J. Keane
 
            Mr. Daniel Flaherty
 
            Attorneys at Law
 
            400 First National Bank Bldg.
 
            PO Box 1768
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1802; 5-1803; 5-4100
 
                      Filed March 13, 1991
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            HENRY W. PUNT, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 926356
 
            JOE'S READY MIX,    :
 
                      :   A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1802; 5-1803
 
            Claimant's low back injury resulted in surgery, a 20 pound 
 
            lifting restriction and 10 percent permanent partial 
 
            disability.  Claimant had a previous low back injury which 
 
            resulted in restrictions.  Claimant awarded 25 percent 
 
            industrial disability as a result of the injury in question.  
 
            Prior injury was considered when determining industrial 
 
            disability but no specific percentage was assigned to the 
 
            earlier injury.  Claimant was age 46 on date of injury.
 
            Healing period benefits awarded.
 
            
 
            5-1400
 
            Odd-lot failed in that claimant's own vocational 
 
            rehabilition expert testified that claimant was employable.