BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JIM CHAMBERS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 932925
 
            IOWA EXPRESS,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on November 16, 1993, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on October 17, 1989.  The record in the proceeding 
 
            consists of the testimony of the claimant; claimant's 
 
            daughter, Sherri Chambers; claimant's wife, Judy Chambers; 
 
            claimant's son, Mike Chambers, and, Craig Smith; joint 
 
            exhibits 1 through 11 and defendants' exhibit A.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits; and,
 
            
 
                 2.  Whether claimant is entitled to 86.13 penalty 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified in person at the hearing and through 
 
            his deposition taken September 25, 1992, represented by 
 
            joint exhibit 10.  Claimant is a 48-year-old high school 
 
            graduate who spent twenty years and one month in the 
 
            military, having received a medical discharge retirement in 
 
            1983.  Claimant related his work history after he left the 
 
            military.  His work history involved but not necessarily 
 
            limited to driving fuel tank trucks, driving trucks 
 
            delivering equipment, unloading big trucks, some with truck 
 
            tires weighing 50 to 150 pounds each, delivering 
 
            perishables, loading and unloading the same.
 

 
            
 
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                 Claimant began working for defendant employer in August 
 
            or September of 1988 at $6 per hour.  His duties involved 
 
            driving a truck, delivering freight, and loading and 
 
            unloading.
 
            
 
                 Claimant described how he injured himself on October 
 
            17, 1989 while working for defendant employer.  This injury 
 
            resulted in him fracturing his right wrist and two ribs.  
 
            Whether claimant was injured is not in dispute.  Claimant 
 
            described some of the medical treatment and related the 
 
            surgeries he has had the last one being March 31, 1992, in 
 
            which the hardware was removed.
 
            
 
                 Claimant showed the location of his scar and indicated 
 
            that he could not move his hand up and down or sideways 
 
            because of his injury.
 
            
 
                 Claimant testified that he hurt his arm while in the 
 
            service in Germany in 1982.  He indicated his arm got caught 
 
            between two trucks and was crushed.  He indicated he had two 
 
            surgeries as a result of that injury, one in Germany and one 
 
            in the United States that involved a bone graft.  He 
 
            acknowledged it was a serious injury but indicated he got 
 
            along great and could do nearly everything up to his 1989 
 
            injury.  These activities he could do involved mowing, 
 
            raking, shoveling, bowling, playing golf.  He indicated now 
 
            he cannot bowl or do any yard work.  Claimant then 
 
            acknowledged that he is limited to doing certain things 
 
            including yard work because of his heart condition.  He said 
 
            this heart condition was discovered when he had the surgery 
 
            to fuse his wrist.  He indicated he had triple bypass 
 
            surgery eighteen months ago, is on medication, and got out 
 
            of the hospital again the day before this hearing.  He is 
 
            not contending his heart problems are the result of any 
 
            workers' compensation injury.  Claimant said his social 
 
            security disability he is receiving is the result of his 
 
            heart condition.
 
            
 
                 Claimant testified as to the three surgeries Scott B. 
 
            Neff, D.O., has performed on his wrist, the first being 
 
            February 13, 1990, in which the doctor took out some bone 
 
            chips and the second one was to put a steel plate in for 
 
            fusion.  This was done on August 29, 1991.  The third 
 
            surgery occurred on March 31, 1992, which was done to take 
 
            the steel plate out because it was affecting his hand.  
 
            Claimant indicated the first surgery resulted in no 
 
            improvement at all and he did try to go back to work at 
 
            defendant employer to see if they had any light duty work 
 
            and was told they had nothing for him and they would call 
 
            him.  He said defendant employer never did call him.  He 
 
            worked after the first surgery as a security guard for a 
 
            month for Wells Fargo.  He could not work any longer because 
 
            his right wrist was hurting so bad.
 
            
 
                 Claimant then had his second injury on August 29, 1991.  
 
            This was a fusion and they put a steel bar in his wrist.  He 
 
            said that surgery inproved the symptoms of pain but he 
 
            didn't have much motion except for turning it back and 
 
            forth.  He could not move it up and down.  This testimony 
 

 
            
 
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            was kind of confusing because in claimant's testimony at the 
 
            hearing he indicated at first he couldn't move it up and 
 
            down, but the undersigned's notes indicate he could move it 
 
            sideways.  Then, in attempting to get clarification, the 
 
            undersigned asked him a question and it appeared then he 
 
            said he could not move it sideways.  It would appear that 
 
            the inability to move it sideways would be similar to 
 
            claimant moving it back and forth.  There seemed to be a 
 
            contradiction between claimant's testimony at the hearing 
 
            and his deposition, on page 17, joint exhibit 10, lines 22 
 
            and 23.
 
            
 
                 Claimant then was asked in his deposition as to whether 
 
            he was released to return to work and whether he checked 
 
            with defendant employer about light work.  Claimant 
 
            indicated he did not as it was at the time he was having 
 
            heart problems.  Apparently, these problems began to occur 
 
            on October 4, 1991.
 
            
 
                 Claimant then had his last surgery on March 31, 1992, 
 
            which involved the removal of the hardware and it appears 
 
            there was a six week recovery from that.  Claimant seemed to 
 
            indicate on page 23 of his deposition that the recovery for 
 
            that was two weeks but it appears undisputed that six weeks 
 
            were actually involved.
 
            
 
                 There appears no dispute whatsoever that claimant would 
 
            have been off work after the August 29, 1991 surgery and the 
 
            March 31, 1992 surgery because of his heart condition so 
 
            that he would not have been able to return to work 
 
            notwithstanding the fact the doctor released him to work as 
 
            far as a workers' compensation injury is concerned.
 
            
 
                 On cross-examination, claimant was questioned 
 
            concerning his medical discharge retirement after twenty 
 
            years and whether he was in fact no longer qualified for 
 
            military service anyway.  Claimant disagreed.  Both on 
 
            direct and cross-examination, redirect and in claimant's 
 
            deposition (Jt. Ex. 10), claimant seemed very defensive to 
 
            the fact and tries to give the impression he really in fact 
 
            didn't need a medical discharge but that he could have had a 
 
            non-medical or regular honorable discharge.  It is obvious 
 
            because of the issue herein that he is attempting to 
 
            downplay the fact of his medical condition at the time he 
 
            left the military.
 
            
 
                 Claimant leaves the impression that the reason he took 
 
            the medical discharge was that benefits received were 
 
            non-taxable wherein if he was honorably discharged on a 
 
            non-medical basis, they would be taxable.  In looking at the 
 
            record and looking at page 1 of joint exhibit 5, it is clear 
 
            on its face that claimant not only was discharged because of 
 
            a medical situation but it would be hard to believe he would 
 
            have been able to stay in the service.  Assuming that he 
 
            could have been honorably discharged and wasn't discharged 
 
            for medical reasons, the undersigned is not impressed by the 
 
            fact that he would agree to some false circumstances or 
 
            condition in order to get out of the military and get 
 
            tax-free benefits.  The action claimant took in 1983 at the 
 
            time of his discharge is the record claimant is stuck with 
 

 
            
 
            Page   4
 
            
 
            
 
            whether in hindsight, he wants to disavow it in order to 
 
            have an opportunity for a possible increase in workers' 
 
            compensation benefits.
 
            
 
                 Claimant was questioned concerning defendants' exhibit 
 
            A which is his application for employment.  Claimant's 
 
            testimony was confusing to the extent that the undersigned 
 
            reluctantly had to ask some questions to clarify his notes 
 
            and even that led to contradictory testimony as far as how 
 
            much of page 2 of said exhibit he did or did not fill out.  
 
            He gave several different answers.  Claimant did not 
 
            convince the undersigned that he didn't fill in some of the 
 
            questions in the middle of page 2.  He disavowed that 
 
            handwriting.  Claimant completely disavowed having filled 
 
            out pages 3 and 4.  Although the undersigned does not 
 
            absolutely believe that to be the case and that claimant 
 
            possibly did in fact fill it out notwithstanding the fact 
 
            that he claimed someone else filled out pages 3 and 4 and 
 
            part of page 2 and had it ready for him to sign  It is 
 
            undisputed that claimant did sign the form and it is 
 
            immaterial whether he read pages 3 and 4 that he claims had 
 
            been filled out for him.  Again, the undersigned can only 
 
            surmise that claimant went along assuming pages 3 and 4 were 
 
            filled out and part of page 2 was filled out by someone 
 
            else.  The undersigned can surmise that he left many of the 
 
            answers which are false in a false situation because they 
 
            were a benefit to him and he would rely later on to the fact 
 
            that someone else did that for him.    The fact that 
 
            claimant signed the document leaves him bound by its 
 
            contents.  The undersigned sees no other necessity to go 
 
            into other areas or items in which claimant gave the wrong 
 
            answer or was incorrect and obviously knew the correct 
 
            answer.
 
            
 
                 Craig Smith testified he works for Ruan Leasing and 
 
            knew the claimant when claimant worked for Ruan.  He said 
 
            claimant was a driver involved in distribution of moving the 
 
            assets which were in the form of equipment from one location 
 
            to another.  Claimant did not move freight.  He said 
 
            claimant did the paperwork, he was involved in cranking the 
 
            fifth wheels, he did a lot of driving usually by himself.  
 
            He said claimant had no physical problems he was aware of 
 
            nor had he filed any workers' compensation claims that he 
 
            knew of.  He said he saw claimant about every Monday morning 
 
            and then sometimes one or two times during the week.  He 
 
            said there were occasions where he could have sent claimant 
 
            on a trip and not see him for seven or eight days.
 
            
 
                 Sherri Chambers, claimant's daughter, testified that 
 
            claimant had no problem with his right arm prior to his 1989 
 
            injury and that he bowled every Sunday night but hasn't 
 
            bowled since his injury.  She said he used to golf but 
 
            doesn't now.  She didn't know if claimant golfed between his 
 
            army injury and the 1989 injury at Iowa Express.
 
            
 
                 Judy Chambers, claimant's wife, testified that claimant 
 
            had no problems with his right arm since his 1983 retirement 
 
            from the military and his 1989 injury.  She said claimant 
 
            golfed, bowled, rode bicycles, hunted and fished prior to 
 

 
            
 
            Page   5
 
            
 
            
 
            his 1989 injury and that he can't do these activities since 
 
            his 1989 injury.  She said he does do some fishing.  Mrs. 
 
            Chambers was then asked, on cross-examination, as to joint 
 
            exhibit 6, pages 1 and 2, in which Mark Jones, D.O., of 
 
            Wildon Clinic, on January 12, 1987, pursuant to a physical 
 
            examination, indicated claimant had tenderness over the 
 
            lateral aspect of the wrist and it was edging up into the 
 
            forearm as well, etc.  Mrs. Chambers then indicated she 
 
            didn't remember this but that she also did not always go to 
 
            the doctor with him.
 
            
 
                 Mike Chambers, claimant's son, testified that he does 
 
            not recall claimant having any problems with his right hand 
 
            or arm or any problem from claimant's military retirement to 
 
            the 1989 injury.  He testified that claimant bowled with the 
 
            family every Sunday night and bowled in a league during the 
 
            week.  He then was asked about claimant's golfing and 
 
            indicated that he only knows of claimant golfing with him 
 
            once at Jester Park.  He fishes with his father now and did 
 
            before his injury but indicated claimant uses his left hand 
 
            now.
 
            
 
                 Ronald C. Evans, D.C., testified through his deposition 
 
            on October 18, 1993.  In reviewing the deposition and the 
 
            exhibits attached thereto, it seems like the doctor is 
 
            consistently in almost all cases referring to claimant's 
 
            wrist.  He then on occasion refers to the upper extremity.  
 
            This agency has held that the wrist is considered the hand 
 
            and not the arm.  It is not unusual for medical people to 
 
            refer to the right thumb, hand, arm or shoulder as the right 
 
            upper extremity and it often confuses the deputy what they 
 
            actually mean and it is up to the deputy to determine what 
 
            in fact they do mean based on all the evidence.  On page 5 
 
            of deposition exhibit 2 of Dr. Evans' deposition (Jt. Ex. 
 
            11) he sets out the evaluation of permanent impairment to 
 
            claimant's elbow and radial nerve in addition to his wrist.  
 
            It appears to the undersigned that when claimant was in 
 
            court there was no problem with claimant moving his arm at 
 
            the elbow, etc., but it seemed like claimant contended he 
 
            was unable to move his hand up and down.  As indicated 
 
            earlier, possibly sideways even though that testimony was 
 
            rather confusing and seemed contradictory based on 
 
            claimant's deposition.  Dr. Evans opined that claimant had a 
 
            35 percent impairment to the right upper extremity.  The 
 
            doctor then went through a detailed explanation of how he 
 
            arrived at this percent of impairment using the AMA Guides 
 
            to the Evaluation of Permanent Impairment and measurements.  
 
            The doctor refers consistently to the wrist.  It would 
 
            appear to the undersigned that when the doctor refers to the 
 
            upper extremity, also, in regards to his deposition 
 
            testimony, he is referring to the wrist as a part of the 
 
            upper extremity.  This interchanging between upper extremity 
 
            and wrist is not unusual as doctors often consider an injury 
 
            to the right hand or right finger as also the right upper 
 
            extremity (Jt. Ex. 11, pp. 14-20).
 
            
 
                 On page 17 of said joint exhibit, the doctor was asked 
 

 
            
 
            Page   6
 
            
 
            
 
            as to whether the pronation and supination affects the use 
 
            of the elbow and he said they are also considered primary 
 
            movements of the elbow because the other end of the two 
 
            bones that make pronation and supination viable are the 
 
            radius and ulna as they come to the elbow and therefore, 
 
            according to the Guides, and according to the anatomy, it is 
 
            an elbow-assigned range of motion.  The doctor had noted 
 
            that the motion involved in the supination and pronation was 
 
            affected.  The doctor further said on page 18 that pronation 
 
            and supination is described as an activity of the arm.
 
            
 
                 The doctor also went into detail as to how much of the 
 
            35 percent would he apportion to claimant's preexisting 
 
            injury he received in the military and how much to his 1989 
 
            injury.  The doctor then indicated he had available the 
 
            percent of loss that was determined in 1982 when claimant 
 
            had a military injury and the loss he had when he examined 
 
            claimant pursuant to the 1989 injury.  Considering all the 
 
            other factors necessary, he determined that 25 percent of 
 
            the right upper extremity was attributed to the 1989 
 
            accident.  Again, in his answer he referred to the right 
 
            upper extremity and the wrist.  I can see where the parties 
 
            are arguing over whether claimant's injury was to the right 
 
            arm or the right wrist.  This agency has held that an injury 
 
            to the wrist is in fact an injury to the hand.
 
            
 
                 On cross-examination, after trying to explain certain 
 
            figures and rounding up and rounding down certain figures, 
 
            it appears there is a 20 percent rather than a 25 percent 
 
            impairment attributed to claimant's 1989 injury.  The 
 
            explanation of these figures in this whole process is as 
 
            confusing to the undersigned as it obviously was to the 
 
            parties' attorneys.  It appears from the opening statement 
 
            of claimant's counsel and comments by the defendants' 
 
            counsel that 20 percent of the 35 percent was the final 
 
            conclusion of Dr. Evans as far as impairment attributed to 
 
            the 1989 injury.
 
            
 
                 There seems no disagreement that considering the nature 
 
            of the injury claimant had in the service in 1982, that type 
 
            of articular fracture is going to produce degenerative joint 
 
            diseases of that area in the future.  There is no evidence 
 
            as to what extent that did in fact happen as there was no 
 
            other measurements or determinations between 1982 or 1983 
 
            and the determination made pursuant to claimant's 1989 
 
            injury.  In fact, it appears that there is no exact 
 
            impairment rating done by the military but only certain 
 
            measurements were done.
 
            
 
                 Joint exhibit 3 is the various reports and letters of 
 
            Dr. Evans in which he has either referred to or affirmed or 
 
            supplemented his deposition and there is no need to further 
 
            go into detail with it.
 
            
 
                 The March 29, 1993 report of Scott B. Neff, D.O., (Jt. 
 
            Ex. 8) clarifies and solves one dispute that up to this 
 
            point was somewhat confusing in the record and needed much 
 
            clarification.  Dr. Neff is the one who did the surgery on 
 
            claimant's right upper extremity which is referred to as 
 

 
            
 
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            both the right wrist, right hand and right upper extremity.  
 
            In this report, the doctor emphasized that the impairment is 
 
            indeed confined to the extremity and not the body as a whole 
 
            and that when he refers to the upper extremity, it was not 
 
            to have been confined to the hand as originally transcribed 
 
            and as reflected in a previous letter he had sent to 
 
            defendants' attorney.  In this letter the doctor also 
 
            pinpoints claimant's healing period.  In the record this 
 
            appears to be the only reference to any exact healing 
 
            periods.  It would appear that in this particular instance, 
 
            there are no other comparable dates or determinations by 
 
            medical doctors as to healing periods and that these are the 
 
            healing periods accepted by the undersigned.
 
            
 
                 The undersigned notes with amusement certain paragraphs 
 
            in the doctor's letter.  In the first instance, he refers to 
 
            the well-known and beautifully produced reports of Dr. 
 
            Evans.  This appears to be a critical or smart aleck comment 
 
            by Dr. Neff concerning Dr. Evans.  The undersigned might add 
 
            that he is not sure what report he is referring to of Dr. 
 
            Evans but the undersigned appreciates the medical reports 
 
            even if they are more than one or two pages long as they get 
 
            to the point and show that the doctor did in fact put some 
 
            time and detail into the examination and in explaining his 
 
            figures.  The undersigned also notes that in Dr. Evans' 
 
            report it does not appear he had to correct any errors or 
 
            apologize for any reports unlike Dr. Neff, whose letter is 
 
            more lengthy than it should be because of his incorrect or 
 
            erroneous reports and comment that he apparently expected 
 
            another non-medical doctor to correct his error.
 
            
 
                 The undersigned also notes Dr. Neff's comment that Dr. 
 
            Evans is well-known in this area and his reports are sought 
 
            by claimant's counsel.  Dr. Neff indicated he was not 
 
            certain why claimant's counsel should seek out his 
 
            impairment evaluations.
 
            
 
                 The undersigned can only refer to agency experience and 
 
            comment that "it takes one to know one."  In considering 
 
            substantial agency experience and expertise, Dr. Neff is 
 
            well-known as a defendant chosen doctor sought out 
 
            consistently by defendants and it is obvious for one reason 
 
            only and that is that his evaluations of impairment are very 
 
            low and seems in many case as substantially in variance with 
 
            what might be otherwise a reasonable impairment under the 
 
            evidence of the case.
 
            
 
                 The undersigned is reluctant to make these comments but 
 
            oftentimes one might be too close to the forest to see the 
 
            woods when we have someone in that situation taking after 
 
            another doctor, who is a chiropractor, for the reasons 
 
            stated therein.  The undersigned feels some comment should 
 
            be made concerning that.  Chiropractors have a place in the 
 
            workers' compensation system and they have ability to 
 
            determined impairments.  In fact, it appears to this agency 
 
            that physical therapists do considerable impairment ratings 
 
            and a doctor signs on to their rating.  On page 2 of his 
 
            March 1993 report, Dr. Neff somewhat infers the physical 
 

 
            
 
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            therapist should have corrected or changed Dr. Neff's report 
 
            that had been in error.  This leaves the impression that Mr. 
 
            Bower would know or should know as much as Dr. Neff 
 
            concerning this and should have caught the error.  It 
 
            appears he thought Mr. Bower as a physical therapist should 
 
            have known that the upper extremity was involved rather than 
 
            the hand.
 
            
 
                 Dr. Neff's December 7, 1992 letter adds confusion to 
 
            the issue which he may have resolved in his March 1993 
 
            letter but the undersigned begins to wonder if Dr. Neff has 
 
            carefully read his correspondence or put the time in 
 
            necessary in trying to make his opinions conclusive.  In 
 
            this letter, he seems to correct Mr. Bower who gave claimant 
 
            a 28 percent impairment to the upper extremity and indicated 
 
            that it is a 28 percent to the hand.  Of course, this 
 
            contradicts his March 29, 1993 letter.  The undersigned, 
 
            likewise, is not certain what letter Dr. Neff is referring 
 
            to in which he expected Mr. Bower, the physical therapist, 
 
            to correct Dr. Neff's opinion since Mr. Bower's November 30, 
 
            1992 letter refers to a 28 percent impairment to the 
 
            claimant's upper extremity and this was before Dr. Neff's 
 
            December 7, 1992 letter.  At that time, Mr. Bower suggested 
 
            Dr. Neff do the apportionment. The undersigned doesn't know 
 
            if it is the April 12, 1993 letter that Dr. Neff thought Mr. 
 
            Bower should have corrected Dr. Neff's error, but Mr. Bower 
 
            in that report agreed with Dr. Neff.  He doesn't say what 
 
            letter he agreed with as he referred to Dr. Neff's careful, 
 
            meticulous job in establishing what impairment was likely 
 
            due to claimant's 1982 military injury and what was 
 
            attributed to the 1989 work-related injury.  If he was 
 
            referring to the December 7, 1992 letter, unlike Dr. Evans, 
 
            it does not show any meticulous setting out, at least for 
 
            the undersigned, to see how he arrived at the impairments.
 
            
 
                 In his December 7, 1992 letter, Dr. Neff opines that 24 
 
            percent of claimant's impairment predates his recent injury 
 
            and 4 percent is related to the recent activity which would 
 
            have been in reference to the October 17, 1989 injury.   In 
 
            his very short letter, the doctor does not indicate how he 
 
            arrived at that.  He only refers to receiving the army 
 
            records but unlike Dr. Evans, he doesn't set out what he 
 
            understands was a percent of motion loss at the time of 
 
            claimant's military injury and what his records indicate 
 
            through examination as of the date of his letter and 
 
            determination of the apportionment.
 
            
 
                 In Dr. Neff's December 7, 1992 letter and in an October 
 
            15, 1990 letter, the doctor seemed to be concerned with his 
 
            interpretation of Iowa law and what the Iowa Supreme Count 
 
            has done and seeks a correction if he is interpreting Iowa 
 
            law incorrectly.  In the 1990 letter, he was not certain of 
 
            the legalities of how certain things worked.  The 
 
            undersigned might note that the doctor should stick to 
 
            medicine and not try to interpret the Iowa law and be an 
 
            advocate for the defendants' lawyer as to trying to work the 
 
            Iowa Supreme Court decisions into his determination of 
 

 
            
 
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            impairment.  That is up to the undersigned to decide.
 
            
 
                 Dr. Neff's September 10, 1990 letter adds further 
 
            confusion concerning his reports in that he indicates on 
 
            page 13 of joint exhibit 8 he felt claimant's primary 
 
            military injury to claimant's wrist amounts to 95 percent of 
 
            the problems associated with his wrist and yet there is no 
 
            indication at that time he carefully and meticulously had 
 
            reviewed the claimant's military records.  In that same 
 
            letter, he opined that claimant had a 6 percent impairment 
 
            to his right wrist as a result of his work-related injury.  
 
            In the normal mathematical application, 95 plus 6 would 
 
            equal 101 percent.
 
            
 
                 The undersigned has seen no evidence in the record that 
 
            would change Dr. Neff's comments in his January 8, 1992 
 
            letter in which he opined that claimant would not be able to 
 
            tighten the snap chain requiring flexion and would not be 
 
            able to load and unload where his wrist must be required to 
 
            be flexed around a box.  At that time, he did think claimant 
 
            could return to truck driving and he seems to make no 
 
            further comment in any other letter or report after that 
 
            date.  It appears the doctor did not realize that when 
 
            claimant was driving a truck there were several other things 
 
            he had to do including loading and unloading that would 
 
            require good active movement of his wrist and upper 
 
            extremity.  In September of 1992, Thomas Bower, the physical 
 
            therapist, was estimating or guessing what preexisting 
 
            impairment claimant may have had prior to October 1989 
 
            because he had not any of claimant's past medical history 
 
            nor, it appears, any of his military medical history.  It 
 
            doesn't look like he ever did have that and as of his April 
 
            12, 1993 letter, he agreed with Dr. Neff but there is no 
 
            indication Dr. Neff or Mr. Bower saw any of those records so 
 
            as to give his own independent opinion as to any preexisting 
 
            impairment.  As indicated earlier, it is a question as to 
 
            how much he should have relied on Dr. Neff's review of any 
 
            records based on certain letters that have been referred to 
 
            herein.
 
            
 
                 On August 12, 1992, Dr. Bower did indicate he reviewed 
 
            the medical records forwarded to him by Dr. Neff.  Why, 
 
            then, on September 29, 1992, was Mr. Bower speculating as to 
 
            a 50-50 preexisting and current apportionment using an 
 
            unproved formula.
 
            
 
                 Joint exhibit 5 is the military medical board 
 
            proceedings which deal with claimant's medical discharge.  
 
            Contrary to the impression the claimant tried to give that 
 
            he could have stayed in the service and had even gotten an 
 
            honorable discharge and not a medical discharge and took the 
 
            medical discharge because he wouldn't have to pay taxes on 
 
            the benefits, it is not supported by joint exhibit 5.  In 
 
            fact, it is clearly obvious that claimant was discharged for 
 
            medical reasons and that as shown on page 6 of said record, 
 
            claimant was found on January 4, 1983 to no longer meet the 
 
            medical fitness standards as provided in the military law.  
 
            The undersigned is going to presume that the medical records 
 

 
            
 
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            are correct and that there was a good faith determination 
 
            that claimant was entitled to a medical discharge and that 
 
            the end product was claimant was able to avoid income tax 
 
            and that there wasn't an evasion of income taxes.  In any 
 
            case, the undersigned finds that claimant did have severe 
 
            impairment at the time he had his military discharge as 
 
            shown clearly in the record even though there is no 
 
            percentage set out.
 
            
 
                 There is a dispute as to the extent of claimant's 
 
            healing period.  The only evidence in this case shows that 
 
            claimant incurred three healing periods.  The first one was 
 
            February 13, 1990 through March 26, 1990, involving six 
 
            weeks; the second one August 29, 1991 through January 8, 
 
            1992, involving 19 weeks; and March 31, 1992 through May 11, 
 
            1992, involving six weeks, the grand total being 31 weeks.  
 
            There is no other testimony to dispute this.  The 
 
            undersigned therefore finds that those are the healing 
 
            periods and the total healing period weeks involved.
 
            
 
                 The next issue that is not only very controversial in 
 
            this case as is true in many cases similar to this, but one 
 
            which it appears is heading for the supreme court based on 
 
            the opening statements of the attorneys and the positions 
 
            they are taking.
 
            
 
                 There has been extreme controversy in cases reported to 
 
            this agency that have been fueled by certain decisions of 
 
            this agency as to whether the AMA Guides to the Evaluation 
 
            of Permanent Impairment are infallible, exact, precise or is 
 
            the Gospel when it comes to scheduled member injuries.  In 
 
            other words, if under the Guides, a doctor opines a 10 
 
            percent impairment to one's upper extremity and it is 
 
            determined that that is the arm, then one would take 10 
 
            percent times 250 weeks to arrive at 25 weeks.  It is 
 
            obvious in looking at the history of the Guides, that there 
 
            have been so far four additions plus a revised third 
 
            editiion, the most recent one coming out in 1993.  There are 
 
            obvious reasons for these being revised and one would 
 
            suspect there is going to be additional revisions.  If one 
 
            looks at the Forward and the Guides as a whole, you can see 
 
            that there have been considerable disputes resulting in 
 
            necessary revisions concerning arriving at impairment and 
 
            how they should be arrived at.  This agency's experience 
 
            time and time again shows that you could line up ten doctors 
 
            and the odds are they would in the majority of instances 
 
            vary among themselves from a few degrees to a substantial 
 
            degree of impairment.  Even though all would be allegedly 
 
            using the same Guides and the same medical data.  Others are 
 
            more competent to do this in arriving at impairment 
 
            percentages than others.  In fact, many doctors rely on 
 
            physical therapists.  Many doctors are hired guns either by 
 
            the claimant or the defendants and this agency's experience 
 
            has been that there are certain doctors that are sought out 
 
            who are known to be ultraconservative as far as the 
 
            defendants are concerned and ultraliberal as far as the 
 
            claimants are concerned.  It is no coincidence that there 
 

 
            
 
            Page  11
 
            
 
            
 
            are certain doctors that defendants desire to send claimant 
 
            to even if it is a matter of traveling up to 100 miles or 
 
            more and, likewise, it is no coincidence that claimants seek 
 
            out doctors for their impairments even though one may travel 
 
            a considerable distance.  The Guides are just what they say.  
 
            They are guides.  As set out in the Forward of the fourth 
 
            edition, it indicates that the rationale for this new 
 
            edition is that the pace of progress and advance in medicine 
 
            continues to be rapid and a new look at impairment criteria 
 
            for all organ systems is advisable.  The undersigned 
 
            believes this agency should also come into the latter part 
 
            of the twentieth century and adjust to the flow of reality 
 
            and medical science.  This fourth edition has a chapter on 
 
            pain.  As you know, there has been a big dispute concerning 
 
            how pain enters into the impairment picture.  Some doctors 
 
            place it in the ratings, other don't.
 
            
 
                 The Guides also refer to the fact that the fourth 
 
            edition emphasizes that impairment percentages derived by 
 
            using the Guides criteria represent estimates rather than 
 
            precise determinations.  This, alone, would indicate by 
 
            common sense that the Guides are not exact.  A deputy should 
 
            have the ability to determine certain factors besides the 
 
            functional impairment.  The Guides are clear on that.  The 
 
            fourth edition Forward goes on to say that permanent 
 
            impairments are evaluated in terms of how they affect the 
 
            patient's daily activities and that this edition recognizes 
 
            that one's occupation constitutes a part of his or her daily 
 
            activities.
 
            
 
                 Under chapter 1, impairment evaluation, it states that 
 
            an impairment percentage derived by means of the Guides is 
 
            intended, among other purposes, to represent an informed 
 
            estimate of the degree to which an individual's capacity to 
 
            carry out daily activities has been diminished.  The Guides 
 
            recognize that normal is not a fine point or an absolute in 
 
            terms of physical and mental functioning and good health.  
 
            The norm can vary with age, sex and other factors.  Given as 
 
            an example, a 21-year-old most certainly will differ from a 
 
            75-year-old as to physical and mental ability.  An 
 
            interpretation of normal that is too strict can result in an 
 
            overestimation or underestimation of impairment.  A 
 
            disability may be defined as an alteration of an 
 
            individual's capacity to meet personal, social or 
 
            occupational demands or statutory regulatory requirements 
 
            because of an impairment.  Disability refers to an activity 
 
            or task the individual cannot accomplish.
 
            
 
                 Page 317 of the fourth edition of the Guides identifies 
 
            activities of daily living as self care, personal hygiene, 
 
            communication, physical activity, standing, sitting, 
 
            reclining, walking, stooping, squatting, kneeling, reaching, 
 
            bending, twisting and leaning and functional activities as 
 
            caring, lifting, pushing, pulling, climbing and exercising, 
 
            sensory function, hand function, grasping, holding, 
 
            pinching, percussive movements, sensory discrimination; 
 
            travel, riding, driving, traveling by airplane, train or 
 

 
            
 
            Page  12
 
            
 
            
 
            car, sexual function, sleeping, social recreation 
 
            activities.  The Guides emphasize that the physician's 
 
            judgment is affected by his or her experience, training, 
 
            skill and thoroughness in examining the patient, applying 
 
            the findings to the Guides' criteria.  These will be factors 
 
            in estimating the degree of patient's impairment.  The 
 
            agency's experience is that the medical profession is often 
 
            deficient in knowing the whole story concerning the claimant 
 
            and they rely so heavily on just functional impairment not 
 
            realizing the daily activities that are affected by 
 
            claimant's impairment, the nature of his job.  The 
 
            undersigned is not advocating that all the criteria for 
 
            determining industrial disability should apply to scheduled 
 
            member injuries.  Although that has been advocated and might 
 
            be the ultimate goal for fairness, the undersigned believes 
 
            that other factors other than just the percent of functional 
 
            impairment should enter into a deputy's determination of the 
 
            extent of one's impairment and the benefits claimant should 
 
            receive.  It is obvious in so many instances that a 
 
            scheduled injury can be much more severe on a person than an 
 
            industrial disability, and yet in so many instances, the 
 
            weekly benefits as a result of a severe scheduled injury is 
 
            meaningless or disgraceful compared to what one would get on 
 
            a slight industrial disability.  Time and time again this 
 
            agency's sees where a scheduled member injury results in a 
 
            far harmful effect on a person's wellbeing, ability to do a 
 
            job, hold a job, or obtain employment than an industrial 
 
            disability.  The person's nature of their work and 
 
            occupation is so important and yet time and time again the 
 
            Guides, as used by the medical profession, do not take 
 
            this into consideration.  This agency sees doctors at times 
 
            struggling with the Guides because of that fact and often 
 
            add comments that they must come up with a certain 
 
            impairment because of the Guides even though the actual 
 
            impairment effect of an injury on a claimant is much more 
 
            severe.  They have been led to believe, and this agency has 
 
            been a part of this, that the ratings are Gospel with an 
 
            exception being so rare, it is not worthy of mention.
 
            
 
                 The undersigned believes a deputy's experience and this 
 
            agency's experience should be able to be used to determine, 
 
            taking all things into consideration, including the Guides 
 
            as a guide, the bias of certain doctors and the visual 
 
            observation of claimant, the total amount of one's 
 
            impairment for purposes of scheduled injuries after weighing 
 
            all the evidence.  The deputies are able to use their 
 
            judgment in industrial disability cases in which impairment 
 
            is one thing to be considered.  There are many other 
 
            criteria in arriving at their determination.  A deputy can 
 
            reject or accept a doctor's opinion, but it is obvious a 
 
            different standard of accepting or rejecting a doctor's 
 
            impairment rating exists in scheduled member cases.
 
            
 
                 Why shouldn't age and one's inability to get a job or 
 
            the refusal to give a claimant work because he was able to 
 
            drive a truck, put on chains, adjust a fifth wheel, load and 
 

 
            
 
            Page  13
 
            
 
            
 
            unload, and yet because of the loss of 10, 15 or 20 percent 
 
            of a person's arm, he is unable to perform that job or 
 
            duties.
 
            
 
                 A 20 percent loss of one's arm would entitle one to 50 
 
            weeks.  If it was an industrial disability of 10 percent, 
 
            one would be entitled to 50 weeks.  How many times has this 
 
            agency seen situations in which a 20 percent loss of one's 
 
            lower or upper extremity been far more harmful than a 10 
 
            percent industrial disability.
 
            
 
                 The undersigned believes this case is a good example of 
 
            why the Guides as currently used and as reflected in 
 
            decisions of this agency, and to which decisions a deputy is 
 
            currently bound, should be reconsidered.  The undersigned 
 
            has taken this opportunity to reflect those concepts because 
 
            in the opening arguments of counsel, it is obvious that this 
 
            case not only involves those concepts but that this case is 
 
            being prepared for the proper appeal.
 
            
 
                 The greater weight of evidence which in most instances 
 
            is undisputed, shows that this claimant was able to do all 
 
            kinds of functions in driving a truck and working for 
 
            defendant employer, but that as a result of this injury, he 
 
            is no longer able to do those functions, one important one 
 
            being able to load and unload a truck.  Yet, we have a 
 
            doctor hired by defendants who comes up with a 4 percent 
 
            impairment.  That means under the AMA Guides to the 
 
            Evaluation of Permanent Impairment, this claimant is 
 
            entitled to ten weeks if it is determined to be an arm or 
 
            7.6 weeks if it is determined to be a hand.
 
            
 
                 In this case at bar, claimant has a serious heart 
 
            problem and it is obvious he is unable to work because of 
 
            his heart condition.
 
            
 
                 It would appear from the claimant's argument that the 
 
            principal at least similar to the Bearce case should be 
 
            applicable to scheduled injuries.  The defendants site the 
 
            Simpson v. Burlington Basket Company, file number 921025, 
 
            which is an appeal decision of March 19, 1993, wherein the 
 
            Bearce case was held to apply to industrial disability 
 
            only and is not applicable to scheduled member impairments.
 
            
 
                 The undersigned must abide by the Simpson case as it is 
 
            the agency's precedence at this time.  The undersigned might 
 
            add though that it seems contrary to good sense and even 
 
            contrary to the AMA Guides to the Evaluation of Permanent 
 
            Impairment, that not only should other factors be considered 
 
            but that if a person had no residue or substantially less 
 
            impairment residue from a prior scheduled member impairment 
 
            at the time of his new injury, there should not be deducted 
 
            from the new injury the prior numerical impairment.  Under 
 
            the Simpson case, as the undersigned reads it, if a person 
 
            has a 20 percent impairment to his right arm 20 or 30 years 
 
            ago and at the time of his injury in 1993 he was lifting and 
 
            swinging 100 pound bags, loading trucks with 100 pound bags 
 
            of potatoes and onions and injured himself and it was opined 
 
            undisputed that he had on the date of his new injury a 40 
 
            percent functional impairment of his right upper extremity 
 

 
            
 
            Page  14
 
            
 
            
 
            and no longer could perform that job, that, in fact, he 
 
            would only have a 20 percent net impairment.  It doesn't 
 
            make sense to the undersigned.  It makes less sense when you 
 
            consider the variance that medical doctors come up with when 
 
            they try to determine the degree of impairment and the 
 
            defendants are stuck with an impairment rating years before 
 
            by doctors who possibly did not use the Guides, but because 
 
            of the time element the Guides may not have been in 
 
            existence or they were the first edition and yet one is 
 
            stuck with an outdated criteria and does not have the 
 
            benefit of the modern day medical system.  MRIs and CT scans 
 
            and other tools of the medical profession have not been in 
 
            existence that long and are being improved yearly and yet it 
 
            seems as though this agency at times holds on to outdated 
 
            criteria and methods.  Modern medicine through exercise and 
 
            dynamic equipment and surgery can reduce prior medical 
 
            impairment to less or nonexisting impairments years later.  
 
            Doctors' education can also rectify mistakes or conclusions 
 
            of the past based on medical techniques now obsolete.
 
            
 
                 Defendants argue that if in fact the percentage of 
 
            rating is to be infallible notwithstanding the great 
 
            variance that doctors have looking at the same facts and the 
 
            same claimant, how can they with ease settle cases.  Now, 
 
            they just multiply one percentage figure against another 
 
            figure and mathematically come up with a scheduled member 
 
            benefit entitlement.  We have a system that the attorneys 
 
            seem to be able to operate under when it comes to industrial 
 
            disability.  The legal profession has been able to operate 
 
            under the multitude of changes over the years.  The legal 
 
            profession is still litigating scheduled member cases 
 
            because of each side hiring a hired gun to see who can get 
 
            the highest and who can get the lowest impairment hoping 
 
            somewhere the deputy will be able to decide their argument 
 
            and arrive at a degree of impairment and disability for the 
 
            scheduled member injury.  In fact, this agency sees often 
 
            where defendants pay the claimants or notify claimants that 
 
            they are entitled to a certain amount of industrial 
 
            disability benefits based on the percent of impairment and 
 
            take nothing else into consideration.  This agency sees it 
 
            occurring often where the rules of the scheduled member 
 
            percentage rating is applied to the payment of industrial 
 
            disability benefits with the defendants hoping to escape 
 
            penalty benefits on that theory or thinking.
 
            
 
                 The undersigned believes that taking all of the facts 
 
            into consideration and also having observed this claimant; 
 
            seeing the location of his surgical scar; the ability and 
 
            inability to make certain movements with his arm, hand and 
 
            wrist; following the Simpson case and not allowing the 
 
            Bearce case to be applied; and, using current agency 
 
            precedence, the undersigned believes that the opinions of 
 
            Sinesio Misol, M.D., and Ronald C. Evans, D.C., are the more 
 
            correct and accurate as far as claimant's total impairment.  
 
            The undersigned believes that Drs. Misol and Evans are the 
 
            closest using the criteria referred to above in determining 
 

 
            
 
            Page  15
 
            
 
            
 
            the extent of claimant's net permanent impairment caused by 
 
            his October 17, 1989 injury.  The undersigned further 
 
            believes that Dr. Evans did a very meticulous and careful 
 
            testing to draw his conclusions and the undersigned believes 
 
            Dr. Evans' 20 percent permanent impairment opinion is 
 
            correct and the undersigned therefore finds that claimant 
 
            incurred a 20 percent impairment as a result of his October 
 
            17, 1989 injury.
 
            
 
                 The undersigned finds that, notwithstanding Dr. Neff 
 
            doing the surgeries and also treating claimant, he is out of 
 
            step with reality as to his rating.  It is an insult to the 
 
            integrity of the system to think that this claimant would 
 
            only be entitled to 10 weeks at the most or 7.6 weeks of 
 
            permanent partial disability if defendants have their way.  
 
            Claimant has a severe injury and if it wasn't for his heart 
 
            condition, he would still be unable to perform the work he 
 
            was doing before.  Again, the undersigned is not applying 
 
            the Bearce case and is following the Simpson case, but the 
 
            undersigned believes Dr. Neff is out of step with the 
 
            reality of this case.  His reports are inconsistent, contain 
 
            errors, he wants a physical therapist to correct his errors, 
 
            he is back and forth as to whether it is the wrist or the 
 
            arm.
 
            
 
                 The undersigned finds that claimant's arm is a 
 
            scheduled member that is affected and not the hand.  This 
 
            agency has held that the wrist is considered the hand.  The 
 
            overwhelming evidence in this case shows that when the 
 
            doctor refers to an upper extremity, the upper extremity is 
 
            affected including the wrist, the arm, the elbow and 
 
            movement involving the arm.
 
            
 
                 There has been a multitude of opinions and letters and 
 
            the undersigned believes that the concluding opinion shows 
 
            that we do have an impairment to the arm.  There were plenty 
 
            of opportunities in the multitude of correspondence to nail 
 
            this matter down further by defendants if in fact it was the 
 
            hand.  It seems like defendants' doctor, himself, that the 
 
            defendants' own doctor, Dr. Neff, nailed that down in a 
 
            letter and Mr. Bower agreed.  It seems like Dr. Neff 
 
            determined the upper extremity and not the hand after 
 
            additional correspondence with defendants' attorney. (Joint 
 
            Exhibit 8, page 1)
 
            
 
                 Claimant argues that since no healing period benefits 
 
            were paid by the defendants after claimant had his second 
 
            surgery on August 29, 1991, and since claimant was entitled 
 
            to healing period, any overpayment of healing period that 
 
            was paid prior to that time should not be a credit and that 
 
            if any credit would be given, it would be given as to any 
 
            additional permanent partial disability benefits.  The 
 
            undersigned does not accept claimant's theory.  We have a 
 
            case here in which all of the factors involved at the 
 
            hearing including all the healing periods and the extent of 
 
            any permanent partial disability are considered and there is 
 
            no evidence that any payments made were specifically 
 
            attributed to healing period or permanent partial 
 

 
            
 
            Page  16
 
            
 
            
 
            disability.  The undersigned does not feel that would make a 
 
            difference anyway even if the defendants had indicated that 
 
            they had paid benefits as healing period versus permanent 
 
            partial disability during the course of this injury and 
 
            ultimate litigation.  The undersigned finds that defendants 
 
            can apply the 53 weeks they paid towards the ultimate 
 
            benefits that are owed.
 
            
 
                 The undersigned does not accept defendants' contention 
 
            as to the healing period in that defendants contend that the 
 
            second healing period should be August 29, 1991 through 
 
            December 2, 1991, and not January 8, 1992.  The undersigned 
 
            will refer to joint exhibit 8, page 1, in which the doctor 
 
            specifically wrote defendants' attorney which was obviously 
 
            in response to a letter defendants' attorney wrote to the 
 
            doctor in which Dr. Neff said that the healing period ended 
 
            on January 8, 1992.
 
            
 
                 The claimant wants a penalty for unreasonable delay of 
 
            benefits by defendants.  The undersigned finds that there 
 
            was not an unreasonable delay in commencement or termination 
 
            of benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 It is concluded that:
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 A healing period may be interrupted by a return to 
 
            work.  Riesselman v. Carroll Health Center, III Iowa 
 
            Industrial Commissioner Report 09 (Appeal Decision 1982).
 
            
 
                 The Iowa Supreme Court in Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886 (Iowa 1983) explained the two 
 
            methods for evaluating a disability--functional and 
 
            industrial:
 
            
 
                 Functional disability is assessed solely by 
 
                 determining the impairment of the body function of 
 
                 the employee; industrial disability is gauged by 
 
                 determining the loss     to the employee's earning 
 
                 capacity.  Functional disability is limited to the 
 
                 loss of physiological capacity of the body or body 
 
                 part.  Industrial disability is not bound to the 
 
                 organ or body incapacity, but measures the extent 
 
                 to which the injury impairs the employee in the 
 
                 ability to earn wages....
 
            
 
                    ...A specific scheduled disability is evaluated 
 
                 by the functional method; the industrial method is 
 
                 used to evaluate an unscheduled disability.
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 A finding that there is some work that claimant could 
 
            do within the physical and educational limitations he has 
 
            does not foreclose the finding of permanent total 
 
            disability.  See Eastman v. Westway Trading Corporation, II 
 
            Iowa Indus. Comm'r Rep. 134 (Appeal Decision 1982); and 
 
            Chamberlin v. Ralston Purina, (Appeal Decision October 29, 
 
            1987).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a 20 percent permanent impairment to 
 
            his right arm-upper extremity as a result of this October 
 
            17, 1989 injury.
 
            
 
                 Claimant incurred a healing period of six weeks 
 
            beginning February 13, 1990 through March 26, 1990, 19 weeks 
 
            beginning August 29, 1991 through January 8, 1992, and six 
 
            weeks beginning March 31, 1992 through May 11, 1992, 
 
            totaling 31 weeks payable at the rate of $225.18 per week.
 
            
 
                 Claimant is not entitled to any 86.13 penalty benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant thirty-one (31) 
 
            weeks of healing period benefits at the rate of two hundred 
 
            twenty-five and 18/100 dollars ($225.18) per week for the 
 
            periods beginning February 13, 1990 through March 16, 1990, 
 
            and being interrupted and to begin again August 29, 1991 
 
            through January 8, 1992, for nineteen (19) weeks and then 
 
            being interrupted and beginning again March 31, 1992 through 
 
            May 11, 1992, for six (6) weeks.
 
            
 
                 That defendants shall pay unto claimant fifty (50) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred twenty-five and 18/100 dollars ($225.18) per 
 
            week beginning at the end of claimant's first healing 
 
            period, namely, February 14, 1990, until claimant's second 
 
            healing period begins and then after the second healing 
 
            period interruption said benefits shall begin again on 
 
            January 9, 1992 until interrupted again by claimant's third 
 
            healing period, which begins March 31, 1992 and continues 
 
            again at the end of the third healing period, May 12, 1992 
 
            until all benefits are paid.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid fifty-three (53) weeks of weekly benefits.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Barry Moranville
 
            Attorney at Law
 
            1601 22nd St  Ste 212
 
            West Des Moines IA 50265
 
            
 
            Mr Glenn Goodwin
 
            Attorney at Law
 
            4th Flr  Equitable Bldg
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                                        1803; 1806
 
                                        5-4000
 
                                        Filed December 16, 1993
 
                                        Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JIM CHAMBERS,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File No. 932925
 
         IOWA EXPRESS,                 :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         1803
 
         Found claimant incurred a 20% permanent impairment to his right 
 
         arm.
 
         
 
         1803
 
         Deputy commented on use of AMA Guides and that they are a guide 
 
         only.
 
         
 
         1806
 
         It was obvious from claimant's attorney's opening comments that 
 
         this case will most likely be used to test the limited criteria 
 
         used in scheduled member cases versus the industrial disability  
 
         criteria.  Should functional impairment alone be the gold 
 
         standard in scheduled member cases?
 
         
 
         Discussion by deputy as to whether the Bearce case concept should 
 
         be foreclosed to claimant in scheduled member cases (Simpson 
 
         case), i.e., if prior permanent impairment of a scheduled member 
 
         has disappeared in whole or in part, must the prior functional 
 
         impairment still be totally deducted from the current injury 
 
         functional impairment to arrive at a net impairment.
 
         
 
         5-4000
 
         Found claimant not entitled to penalty benefits 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            
 
            JUDY L. GORDON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 933064
 
            WOODWARD STATE HOSPITAL-      :
 
            SCHOOL,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Judy L. 
 
            Gordon, claimant, against Woodward State Hospital, employer, 
 
            and State of Iowa, insurance carrier, to recover benefits 
 
            under the Iowa Workers' Compensation Act as a result of an 
 
            injury sustained on October 24, 1989.  This matter came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on May 5, 1992, in Des Moines, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  The 
 
            documentary evidence identified in the record consists of 
 
            joint exhibits A-O.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated May 
 
            5, 1992, the parties have presented the following issues for 
 
            resolution:
 
            
 
                 1.  The extent of entitlement to weekly compensation 
 
            for permanent disability; and,
 
            
 
                 2.  The type of permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant was born on August 20, 1954, and completed the 
 
            eleventh grade of school in 1971.  In 1981, she obtained a 
 
            nurse's aide certificate.  In 1984, she obtained a home 
 
            health care certificate.  She received her GED equivalency 
 
            diploma in 1987.  Her work activity consists of numerous 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            short-term jobs as a home health aide, nurse's aide, 
 
            custodian, dishwasher, salad maker and baker.  She commenced 
 
            working for employer on August 18, 1989, as a residential 
 
            treatment worker.  She was assigned to assist wheelchair and 
 
            bed patients with their personal needs.  This involved 
 
            continuous transferring and lifting of patients.  On October 
 
            24, 1989, while transferring a patient from her wheelchair 
 
            to the commode, the patient became unstable and started to 
 
            fall.  In the process of diverting the fall, claimant 
 
            wrenched her right arm and shoulder.  She reported the 
 
            incident to her supervisor and completed her work shift for 
 
            the day.  Despite a painful right shoulder, she returned to 
 
            work the next day but avoided lifting activities.  The 
 
            following day, she went to her treating physician, John 
 
            Murphy.  He referred her to physical therapy at Boone County 
 
            Hospital.  She was then informed by the insurance carrier 
 
            that she had to see a doctor of their choice.  A referral 
 
            was made to Michael J. Makowsky, M.D.
 
            
 
                 Claimant was seen by Dr. Makowsky on November 2, 1989.  
 
            She presented with complaints of right shoulder pain.  On 
 
            examination, tenderness across the anterior and posterior 
 
            shoulder and on deep palpitation over the right trapezius 
 
            was evident.  Physical therapy and medication was 
 
            prescribed.  A re-examination on November 7, 1989, revealed 
 
            some improvement in her condition with full range of right 
 
            shoulder motion and minimal tenderness of the anterior and 
 
            posterior shoulder.  She was returned to light duty 
 
            beginning November 8, 1989, and instructed to avoid 
 
            repetitive pushing and pulling with the right arm and 
 
            shoulder, no overhead work and no lifting more than 10-12 
 
            pounds (Joint Exhibit F, page 19).
 
            
 
                 Claimant saw Dr. Makowsky for follow-up examination on 
 
            November 14, 1989.  She had returned to regular duty on 
 
            November 15, 1989.  Employer could not accommodate her 
 
            restrictions.  At this time, she manifested some improvement 
 
            in her symptoms with medication.  When seen by Dr. Makowsky 
 
            on November 30, 1989, she complained of pain over the right 
 
            anterior and posterior shoulder area.  Her symptomatology 
 
            exacerbated with constant lifting of patients.  Her 
 
            medication was changed and she was continued on regular duty 
 
            (Jt. Ex. F, p. 18).
 
            
 
                 On December 18, 1989, claimant presented to Dr. 
 
            Makowsky with increased shoulder pain and decreased range of 
 
            motion.  An x-ray was taken of her right shoulder which 
 
            appeared normal.  She was returned to light duty with 
 
            restrictions of lifting no more than 15 pounds and working 
 
            above shoulder level.  Claimant returned to Dr. Makowsky for 
 
            follow-up examination on December 28, 1989.  She indicated 
 
            that part of her light duty required repetitive movements of 
 
            her right arm in drawing and cutting paper.  On examination, 
 
            she had marked tenderness over the right rotator cuff and 
 
            right upper trapezius.  Dr. Makowsky took her off work and 
 
            made an appointment for her to see Delwin E. Quenzer, M.D. 
 
            (Jt. Ex. F, p. 17).  Claimant saw Dr. Quenzer on January 5, 
 
            1990.  On examination, the impingement test was positive and 
 
            the throwing position of abduction and external rotation was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            painful.  Dr. Quenzer recommended a continuation of physical 
 
            therapy.  An arthrogram taken on January 17, 1990, was 
 
            normal (Jt. Ex. E, pp. 1-2).
 
            
 
                 Claimant failed to improve despite physical therapy.  
 
            On February 9, 1990, Dr. Quenzer injected her right 
 
            shoulder.  Neither the injection nor physical therapy 
 
            improved her condition.  On March 6, 1990, Dr. Quenzer 
 
            requested that claimant obtain a second opinion.  On March 
 
            20, 1990, she was seen by Joseph F. Fellows, M.D.  He 
 
            reported to Dr. Makowsky that he was uncertain as the exact 
 
            etiology of her pain.  He recommended an MRI evaluation.  
 
            This was performed on March 22, 1990, and revealed no acute 
 
            abnormality (Jt. Exs. E and F).
 
            
 
                 On April 12, 1990, Dr. Quenzer performed an arthroscopy 
 
            with arthroscopic acromioplasty.  The post-operative 
 
            diagnosis was a State II impingement syndrome of the right 
 
            shoulder with a very dense subacromial bursae.  The 
 
            coracoacromial ligament was also resected (Jt. Ex. F, p. 2).
 
            
 
                 Claimant continued under the simultaneous care of Dr. 
 
            Makowsky and Dr. Quenzer.  She participated in a post-
 
            operative physical therapy program but made slow progress 
 
            and developed increasing pain in her right shoulder.  Dr. 
 
            Quenzer felt that this was probably tendinitis caused by 
 
            overuse during therapy.  He injected the right subacromial 
 
            on August 7, 1990, and physical therapy was temporarily 
 
            discontinued (Jt. Ex. E, p. 8).
 
            
 
                 Claimant returned to physical therapy in September 
 
            1990.  She was alternately seen by Dr. Makowsky and Dr. 
 
            Quenzer.  She was last seen by Dr. Makowsky on November 13, 
 
            1990.  At that time, he determined that maximum medical 
 
            healing will be achieved by December 1, 1990.  Dr. Makowsky 
 
            reported on November 27, 1990, that claimant continues to 
 
            have pain in her right shoulder and decreased range of 
 
            motion on abduction and forward flexion.  He reported that 
 
            she is capable of working with restrictions of lifting no 
 
            more than ten pounds on a repetitive basis and no above 
 
            right shoulder level work or repetitive use of the right arm 
 
            and shoulder (Jt. Ex. F, pp. 8-9).
 
            
 
                 On December 5, 1990, Dr. Quenzer reported that, in his 
 
            opinion, claimant sustained an 8 percent impairment of the 
 
            whole person based upon loss of range of motion and weakness 
 
            in the suprascapula nerve distribution (Jt. Ex. E, p. 9).
 
            
 
                 Claimant returned to Dr. Quenzer on February 26, 1991, 
 
            with complaints of continuing pain in her right shoulder.  
 
            On examination, she had diminished strength in flexion and 
 
            abduction, particularly above the level of her shoulder.  
 
            Dr. Quenzer recommended treatment at Methodist Hospital's 
 
            Pain Management Center.
 
            
 
                 On April 4, 1991, claimant presented to the Iowa 
 
            Methodist Pain Management Center.  She was seen by Craig 
 
            DuBois, M.D.  His impression was shoulder pain, chronic on 
 
            the right, and myofascial pain in the neck with multiple 
 
            sites of tenderness. The staff at Iowa Methodist Pain 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Management Center felt that claimant would be best served by 
 
            a comprehensive pain rehabilitation program not offered by 
 
            the center (Jt. Ex. O, p. 12).
 
            
 
                 Claimant was admitted to the Mercy Hospital Pain Center 
 
            program on August 26, 1991.  A medical assessment was 
 
            performed by James Blessman, M.D.  She was seen sixteen 
 
            times by the unit physical therapist for TENS class 
 
            evaluation, exercise and hot packs.  She also attended 
 
            stress management and relaxation classes.  She was 
 
            discharged from the program on September 20, 1991.  Dr. 
 
            Blessman felt that her treatment at the center was 
 
            essentially ineffective.  She refused to participate in a 
 
            functional capacity evaluation making it difficult to assess 
 
            her full return to activities (Jt. Ex. L).
 
            
 
                 On March 19, 1992, claimant participated in a 
 
            functional capacity evaluation which was performed by 
 
            Douglas Ely, a licensed physical therapist.  Based on the 
 
            Maximum Effort Test and Endurance Projections, it was 
 
            determined that claimant had the residual capacity to 
 
            perform light work activity with maximum lifting limit, 
 
            floor to knuckle, of 20 pounds (Jt. Ex. L, pp. 25-31).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether claimant's 
 
            injury on October 24, 1989, was confined to her right arm or 
 
            extended into the body as a whole.
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator     involve disability to the body as a whole.  Streeter v. Iowa 
 
            Meat Processing Co., file numbers 730461 and 809945 (App. 
 
            Decn., March 31, 1989); Nazarenus v. Oscar Mayer & Co., II 
 
            Iowa Industrial Commissioner Report 281 (1982); Houser v. A 
 
            M Cohron & Sons, file number 851752.
 
            
 
                 The surgical procedure undertaken by Dr. Quenzer 
 
            invaded the body side of the joint (the acromion was 
 
            affected).  Claimant has persistent pain and discomfort in 
 
            her shoulder and neck, which according to Dr. Quenzer is 
 
            characteristic of impingement syndrome.  She has limited 
 
            range of motion in her shoulder.  Therefore, claimant has 
 
            met her burden of proof that her injury extends beyond the 
 
            scheduled member and to the body as a whole.  Kellogg v. 
 
            Shute and Lewis Coal Co., 130 N.W.2d 667 (1964).
 
            
 
                 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 v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            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).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines how each of the 
 
            factors of industrial disability are to be considered.  
 
            There is no equation which can be applied and then 
 
            calculated to determine the degree of industrial disability 
 
            to the body as a whole.  Therefore, it becomes necessary for 
 
            the deputy or commissioner to draw upon prior experience and 
 
            general and specialized knowledge to make a finding with 
 
            regard to the degree of industrial disability. Peterson v. 
 
            Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654, 658 (Appeal Decision 
 
            February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 
 
            3, State of Iowa Industrial Commissioner Decisions 529, 535 
 
            (Appeal Decision March 26, 1985).
 
            
 
                 In this instance, claimant is 37 years old.  The fact 
 
            that she was disabled in the peak earning years of her 
 
            employment career makes her disability worse than it would 
 
            be for a younger or older employee.  Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision  1979); Walton v. B & H 
 
            Tank Corp., I Iowa Indus. Comm'r Rep. 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 
 
            (Appeal Decision 1989).
 
            
 
                 Claimant completed the eleventh grade of school and 
 
            obtained a GED equivalency diploma.  She has specialized 
 
            training as a nurse's aide and home health care worker.  
 
            Claimant has worked sporadically in various health care 
 
            agencies and restaurants.  She was terminated by employer in 
 
            January 1990.
 
            
 
                 The medical evidence clearly demonstrates that claimant 
 
            lacks the residual functional capacity to perform most of 
 
            her past relevant work.  Physicians who have treated and/or 
 
            examined claimant agree that she is not totally disabled and 
 
            is capable of performing light work activity.  Dr. Makowsky 
 
            found no objective finding in her shoulder after surgery 
 
            (Jt. Ex. F, p. 3).
 
            
 
                 Claimant has not worked since being terminated by 
 
            employer in January 1990.  Claimant has made minimal efforts 
 
            to find other work activity.  She alleges an inability to 
 
            work due to severe and intractable right shoulder pain.  
 
            However, her cooperation with pain management programs has 
 
            been less than satisfactory.  Claimant's motivation to 
 
            return to the competitive job market is questionable.
 
            
 
                 While it is true that claimant's impairment has 
 
            resulted in the loss of earning capacity, and employers are 
 
            responsible for reduction in earning capacity caused by the 
 
            injury, they are not responsible for a loss of actual 
 
            earnings because the employee resists or refuses to return 
 
            to work.  Williams v. Firestone Tire and Rubber Co., III 
 
            Iowa Indus. Comm'r Rep. 279 (1982).
 
            
 
                 In conclusion, (1) based upon the foregoing factors; 
 
            (2) based on all of the factors used to determine industrial 
 
            disability, Christensen v. Hagen, Inc., vol. I, no. 3, State 
 
            of Iowa Industrial Commissioner Decisions 529 (Appeal 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Decision March 26, 1985); Peterson v. Truck Haven Cafe, 
 
            Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (Appeal Decision February 28, 1985); 
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 
 
            251 (1963); and (3) based upon agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)]; it is determined 
 
            that claimant has sustained a 30 percent industrial 
 
            disability to the body as a whole and is entitled to 150 
 
            weeks of permanent partial disability benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred six and 35/100 dollars ($206.35) per week 
 
            commencing December 2, 1990.
 
            
 
                 That defendants receive credit under Iowa Code section 
 
            85.38(2) for previous payments made under a non-occupational 
 
            group plan.
 
            
 
                 That defendants  receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay all costs, pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Hoover State Office Building
 
            LOCAL
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          1803.1; 5-1803
 
                                          Filed May 8, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            
 
            JUDY L. GORDON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 933064
 
            WOODWARD STATE HOSPITAL-      :
 
            SCHOOL,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Defendants argue that claimant's disability is to the right 
 
            upper extremity only.  Claimant was diagnosed with chronic 
 
            subacromial impingement.  She underwent an arthroscopy with 
 
            arthroscopic acromioplasty.  The post-operative diagnoses, 
 
            according to the operation report, was a Stage II 
 
            impingement syndrome of the right shoulder with a very dense 
 
            subacromial bursae.  The coracoacromial ligament was also 
 
            resected.
 
            A shoulder injury is an injury to the body as a whole if the 
 
            injury affects the "body side" of the shoulder joint.  
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  
 
            This agency has typically compensated shoulder injuries 
 
            industrially on the basis that such injuries involve 
 
            disability to the body as a whole.  Streeter v. Iowa Meat 
 
            Processing Company, File Nos. 730461 and 809945 (App. Dec. 
 
            March 31, 1989); Houser v. A.M. Cohron & Sons, File No. 
 
            851752 (arbitration decision July 1990).  The surgical 
 
            procedure undertaken by Dr. Quenzer invaded the body side of 
 
            the joint (the acromion was affected).  Therefore, 
 
            claimant's injury must be compensated industrially.
 
            
 
            5-1803
 
            After considering all of the factors of industrial 
 
            disability, including claimant's age (35-37); education (GED 
 

 
            
 
            
 
            
 
            
 
            
 
            
 
            equivalency diploma and certification as a nurse's aide and 
 
            home health care worker); past relevant work (residential 
 
            treatment worker, home health aide, nurse's aide, waitress, 
 
            dishwasher and salad maker); physical limitations (no 
 
            repetitive use of the right arm and shoulder or working 
 
            above right shoulder level); a residual functional capacity 
 
            assessment limiting claimant to light work activity with 
 
            maximum lifting limitations from the floor to knuckle of 20 
 
            pounds; claimant's failure to cooperate with a pain 
 
            management program and vocational rehabilitation; lack of 
 
            motivation to aggressively seek employment; defendants' 
 
            failure to accommodate claimant's impairment; claimant 
 
            awarded 30% industrial disability.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RENE' KLINGAMAN,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 933216
 
         ROSE ACRE FARMS, INC.,     
 
                                                    A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 26, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         That the costs of the appeal including the transcription of the 
 
         hearing shall be shared equally.  Defendants shall pay the costs 
 
         of the arbitration proceeding.
 
         Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. A. Zane Blessum
 
         Attorney at Law
 
         P.O. Box 309
 
         Winterset, Iowa 50273
 
         
 
         Mr. Joseph A. Happe
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50209-2421
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            9998
 
                                            Filed October 28, 1992
 
                                            Byron K. Orton
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            RENE' KLINGAMAN,      
 
                        
 
                 Claimant,                           
 
            vs.         
 
                                                File No. 933216
 
            ROSE ACRE FARMS, INC.,     
 
                                                 A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            26, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RENE' KLINGAMAN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 933216
 
            ROSE ACRE FARMS, INC.,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Rene' 
 
            Klingaman, claimant, against Rose Acre Farms, Inc., 
 
            employer, and Liberty Mutual Insurance Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            October 21, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on August 7, 
 
            1991, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The record in this 
 
            case consists of joint exhibits A through F; claimant's 
 
            testimony and testimony from the following witnesses:  
 
            Norman Bosier, Kenneth Klingaman, Patrick O'Neil, Eric 
 
            Eyerly, Bruce Young, Don Woodson and Glen Hilton.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            August 7, 1991, the parties presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant's injury on October 21, 1989, is a 
 
            cause of temporary and permanent disability and, if so, the 
 
            extent thereof; 
 
            
 
                 2.  Whether claimant is entitled to weekly compensation 
 
            for permanent disability and, if so, the type of permanent 
 
            disability and the commencement date;
 
            
 
                 3.  Whether some of claimant's medical expenses are 
 
            causally connected to her work injury; and,
 
            
 
                 4.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein and makes the following 
 
            findings:
 
            
 
                 Claimant sustained a left knee injury on October 21, 
 
            1989, arising out of and in the course of her employment 
 
            with employer.  Claimant was seen by Allan D. Ball, M.D., on 
 
            October 21, 1989, and was taken off work for a few days and 
 
            advised to use a knee pad (Exhibit E-2).  On October 25, 
 
            1989, Dr. Ball released claimant to return to work but 
 
            advised against working on the packing line for two weeks 
 
            (Ex. E-2, page 2).  On November 2, 1989, Dr. Ball 
 
            reevaluated claimant and determined she was not ready for 
 
            line work but was able to do work which does not cause her 
 
            pain (Ex. E-2, p. 3).  On November 20, 1989, Dr. Ball 
 
            released claimant for "light work" (Ex. E-2, p. 4).  
 
            Claimant testified that she gave Dr. Ball's work release to 
 
            her employer but they did not return her to work.
 
            
 
                 Claimant was seen by Martin Rosenfeld, D.O., on 
 
            December 1, 1989, due to knee pain.  X-rays were taken and a 
 
            diagnosis of synovitis was made.  On December 15, 1989, Dr. 
 
            Rosenfeld recommended arthroscopy.  She was referred to 
 
            Jerome G. Bashara, M.D., for a second opinion.  X-rays were 
 
            reviewed and Dr. Bashara recommended a diagnostic and 
 
            operative arthroscopy of the left knee (Ex. E-3).
 
            
 
                 Based on a diagnosis of internal derangement of the 
 
            left knee, Dr. Rosenfeld performed an arthroscopy with 
 
            arthroscopic debridement of the medial synovial plica on 
 
            January 15, 1990 (Ex. E-4).
 
            
 
                 On April 16, 1990, claimant was referred to Mark B. 
 
            Kirkland, D.O., by Dr. Rosenfeld due to persistent knee 
 
            pain.  On examination, she complained of antero-medial pain 
 
            and popping.  Dr. Kirkland recommended another arthroscopy 
 
            and possible shaving of the fat pad (Ex. E-5).
 
            
 
                 Claimant was referred by insurance carrier to Rodney E. 
 
            Johnson, M.D., for evaluation on May 10, 1990.  On 
 
            examination, her symptoms were along the medial tibial joint 
 
            line.  X-rays showed juxta-articular osteoporosis on the 
 
            left side.  Additional testing was recommended (Ex. E-7).
 
            
 
                 On May 22, 1990, a bone scan was taken and showed 
 
            increased bone activity in the lateral tibial plateau of the 
 
            left knee.  On May 25, 1990, a left knee arthrogram showed a 
 
            fracture involving the posterior lateral left tibial 
 
            plateau.  Left knee tomograms taken on May 29, 1990, showed 
 
            evidence for fracture of the lateral tibial plateau (Ex. 
 
            E-6).
 
            
 
                 Claimant was seen by Dr. Johnson for follow-up 
 
            evaluations on May 29, June 21, July 12 and October 4, 1990.  
 
            On May 29, Dr. Johnson felt that claimant's symptoms were an 
 
            inflammatory type pain.  He released her to return to work 
 
            with restrictions of no kneeling or standing more than 30 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            minutes per hour for the next three weeks (Ex. E-7, p. 2).  
 
            Claimant testified that she presented her work release to 
 
            employer and was told there was no job at the plant for a 
 
            person with these restrictions.
 
            
 
                 On June 21, 1990, Dr. Johnson saw claimant because of 
 
            knee pain.  He recommended either a patellar immobilizing 
 
            splint or an injection of the bursa.  Claimant testified 
 
            that she declined the injection but consented to the use of 
 
            the splint.  By July 12, 1990, claimant had stopped wearing 
 
            the splint due to discomfort.  An injection was again 
 
            offered by Dr. Johnson but she declined (Ex. E-7, pp. 4-5).
 
            
 
                 Dr. Johnson referred claimant to Thomas W. Bower, 
 
            L.P.T., for an impairment rating and functional capacity 
 
            test.  Based on the tests results, Dr. Bower concluded that 
 
            claimant could not return to her previous work activity.  In 
 
            regard to her impairment, Dr. Johnson and Mr. Bower 
 
            co-signed a letter stating as follows:
 
            
 
                 In regards to impairment, this patient does have 
 
                 full range of motion at this time.  Granted, there 
 
                 is pain when the knee is fully flexed.  Dr. 
 
                 Johnson does not feel that the fracture in the 
 
                 posterior lateral tibial plateau is related to the 
 
                 original complaints which began in October of 
 
                 1989.  The increased uptake over the lateral 
 
                 tibial plateau, however, may well be related to 
 
                 this.  However, nothing in the guides specifically 
 
                 address this particular problem.  Therefore, on 
 
                 the basis of full range of motion which would be 
 
                 the only ratable quantity, the patient really has 
 
                 not sustained any impairment on the basis of the 
 
                 guides.
 
            
 
            (Ex. E-8, p. 2)
 
            
 
                 Claimant saw Dr. Johnson for the last time on October 
 
            4, 1990.  At this time, she presented with additional 
 
            complaints including discomfort in the left hip and ankle.  
 
            On examination, she had full range of motion in both of 
 
            these areas.  Dr. Johnson diagnosed tenosynovitis of the 
 
            ankle and trochanteric bursitis of the left hip.  He felt 
 
            that these were not permanent symptoms nor would they result 
 
            in any functional impairment (Ex. E-7, p. 6).
 
            
 
                 Being dissatisfied with the aforementioned assessment, 
 
            claimant sought a second opinion from Peter D. Wirtz, M.D., 
 
            on October 31, 1990.  Since claimant had medial joint line 
 
            symptoms, Dr. Wirtz recommended an arthroscopic evaluation.  
 
            He reported that:
 
            
 
                 The patellar symptoms which relate to the work 
 
                 related condition may be a subluxation complex 
 
                 with persistence of the symptoms through this 
 
                 and/or degeneration.  Correction of this condition 
 
                 would include arthroscopic lateral release and 
 
                 realignment procedure for the patellar tendon 
 
                 which is outside the limits of normal for 
 
                 patellofemoral articulation.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            (Ex. E-9, p. 2)
 
            
 
                 Claimant was seen by Dr. Wirtz for follow-up evaluation 
 
            on November 14, 1990.  On examination, tenderness was 
 
            located over the patellar tendon.  Dr. Wirtz recommended a 
 
            second opinion evaluation at the Iowa City Orthopedic Clinic 
 
            (Ex. E-9, pp. 4-5).
 
            
 
                 On November 19, 1990, claimant was seen by Noonon 
 
            Buckwalter, M.D., at the University of Iowa Medical Center, 
 
            Orthopedic Clinic.  On examination, claimant was noted to 
 
            have tenderness on the anterior medial aspect of the left 
 
            knee with slight patellar maltracking.  Reviewing prior 
 
            laboratory findings, it was determined that the changes on 
 
            the lateral tibial plateau were consistent with aseptic 
 
            necrosis (Ex. E-10).
 
            
 
                 On December 4, 1990, claimant underwent arthroscopy of 
 
            the left knee with arthroscopic lateral retinacular release 
 
            performed by Dr. Wirtz (Ex. E-4, pp. 3-4).
 
            
 
                 On May 23, 1991, Dr. Wirtz reported that claimant's 
 
            final diagnosis is patellofemoral syndrome with patellar 
 
            subluxation left, postoperative left knee arthroscopy, 
 
            release and tibial tubercle transfer.  Maximum medical 
 
            improvement, with permanent residuals, was reached on March 
 
            18, 1991.  Restrictions imposed include no repetitive 
 
            standing, walking, ladder and stair climbing.  Claimant's 
 
            impairment was rated at five percent of the left lower 
 
            extremity (Ex. E-9, p. 11).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined in this case is 
 
            whether claimant's October 21, 1989, left knee injury is a 
 
            cause of temporary and permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 21, 
 
            1989, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Claimant's uncontroverted testimony indicates that she 
 
            was asymptomatic prior to October 21, 1989.  She developed 
 
            left knee problems after falling from a candling booth and 
 
            striking her left knee.  Since that time, she has had 
 
            arthroscopic evaluation of the left knee with debridement of 
 
            the medial synovial plica on January 15, 1990, and a second 
 
            arthroscopy on December 4, 1990, with arthroscopic lateral 
 
            retinacular release.  These procedures were performed due to 
 
            persistent left knee problems which developed as a result of 
 
            her work-related injury on October 21, 1989.  Dr. Wirtz, the 
 
            physician who performed claimant's December 4, 1990, 
 
            procedure indicated that she reached maximum medical 
 
            improvement on March 18, 1991, and noted that she had some 
 
            permanent residuals including weakness to the quadriceps on 
 
            the left with diminished strength.  This condition limits 
 
            claimant's functional ability as to prolonged standing and 
 
            walking and repetitive ladder and stair climbing (Ex. E., 
 
            sec. 9, p. 11).
 
            
 
                 The best evidence as to claimant's healing period is 
 
            Dr. Wirtz's opinion that claimant reached maximum medial 
 
            improvement on March 18, 1991, and an assignment of a 
 
            permanent partial impairment rating on that date.  
 
            Accordingly, claimant is entitled to 73.429 weeks of healing 
 
            period benefits from October 21, 1989 through March 18, 
 
            1991, at the stipulated rate of $173.45.
 
            
 
                 Although claimant contends that she has suffered an 
 
            injury to the body as a whole, the medical evidence clearly 
 
            indicates that her knee injury has not effected any other 
 
            part of her body.  There can be no recovery of benefits for 
 
            industrial disability unless it is shown that a part of the 
 
            body other than the scheduled member is impaired.  Lauhoff 
 
            Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  Dr. Wirtz 
 
            opined that claimant had sustained a five percent impairment 
 
            to the left lower extremity.  He did not indicate that 
 
            claimant's injury extended into the body as a whole.  
 
            Because Dr. Wirtz's opinion was based on loss of function of 
 
            the left lower extremity only, it is concluded that 
 
            claimant's injury should not be compensated industrially.
 
            
 
                 Accordingly, claimant's left knee injury does not 
 
            extend beyond the scheduled loss and under Iowa Code section 
 
            85.34(2)(o) claimant is entitled to 11 weeks (5% x 220) of 
 
            permanent partial disability benefits at the stipulated rate 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of $173.45.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27.  
 
            Claimant has the burden of demonstrating that the medical 
 
            services obtained were related to the injury in order to 
 
            have the expenses reimbursed or paid.  Auxier v. Woodward 
 
            State Hospital, 266 N.W.2d 139, 144 (Iowa 1978).  In this 
 
            case, claimant has shown that the medical expenses she 
 
            incurred were related to treatment for a work-related 
 
            injury.  Thus, claimant is entitled to reimbursement for the 
 
            following expenses:
 
            
 
                 
 
                 Dr. Wirtz                                   $ 2,690.00
 
                 University of Iowa Medical Center                80.00
 
                 Madison County Memorial Hospital                 97.00
 
                 Physical therapy                                140.00
 
                 Pharmacy bills                                  750.00
 
                 Iowa Methodist Hospital                       4,319.62
 
                                               Total         $ 8,076.62
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to penalty benefits under Iowa Code section 86.13.  
 
            Iowa Code section 86.13 provides in pertinent part as 
 
            follows:
 
            
 
                 If commenced, the payments shall be terminated 
 
                 only when the employee has returned to work, or 
 
                 upon thirty days' notice stating the reason for 
 
                 the termination and advising the employee of the 
 
                 right to file a claim with the industrial 
 
                 commissioner.
 
            
 
                     ....
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Where a claim is "fairly debatable", defendants are 
 
            entitled to argue their position, whether the debate 
 
            concerns a matter of fact or law.  The agency has adopted 
 
            the analysis that the claimant must show the absence of a 
 
            reasonable basis for denying benefits.  Dodd v. Oscar Mayer 
 
            Food Corporation, File No. 724378 (Penalty Decn., April 27, 
 
            1989).
 
            
 
                 In this case, defendants had a reasonable basis for 
 
            terminating claimant's payments and apprised her of the 
 
            rationale in a 30 day notice letter dated August 9, 1990 
 
            (Ex. A, p. l).  Therefore, no penalty benefits shall be 
 
            awarded.
 
            
 
                                      order
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant seventy-three point 
 
            four-two-nine (73.429) weeks of healing period benefits at 
 
            the stipulated rate of one hundred seventy-three and 45/l00 
 
            dollars ($173.45) for the period from October 21, 1989 
 
            through March 18, 1991.
 
            
 
                 That defendants pay to claimant eleven (11) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of one hundred seventy-three and 45/l00 dollars ($173.45) 
 
            per week commencing March 19, 1991.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay claimant's medical expenses 
 
            totaling eight thousand seventy-six and 62/l00 dollars 
 
            ($8,076.62).
 
            
 
                 That defendants pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. A. Zane Blessum
 
            Attorney at Law
 
            P O Box 309
 
            Winterset  IA  50273
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                        5-1802; 5-1803;
 
                        5-2700; 5-4000
 
                        Filed August 26, 1991
 
                        JEAN M. INGRASSIA   
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RENE' KLINGAMAN,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 933216
 
         ROSE ACRE FARMS, INC.,        :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE      :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-1802; 5-1803
 
         Claimant awarded 73.429 weeks of healing period benefits and 11 
 
         weeks of permanent partial disability benefits due to internal 
 
         derangement of left knee with medial synovial plica requiring 
 
         arthroscopic evaluation and debridement of medial synovial plica 
 
         in January 1990.  Persistent symptoms and a second arthroscopy in 
 
         December 1990 required operative arthroscopic lateral retinacular 
 
         release.
 
         
 
         5-2700
 
         Only one physician expressed an opinion as to the degree of 
 
         claimant's impairment.  Dr. Wirtz gave a 5% impairment of the 
 
         left lower extremity based on weakness to the quadriceps and 
 
         diminished strength.  No medical evidence that injury extended 
 
         beyond the left knee and into the body as a whole, claimant not 
 
         compensated industrially.
 
         
 
         5-4000
 
         Claimant requested penalty benefits which were denied because the 
 
         claim was "fairly debatable."  Dodd v. Oscar Mayer Foods Corp., 
 
         File No. 724378 (Penalty Decn., April 27, 1989) and Iowa Code 
 
         section 86.13.