BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DONALD F. ROWE,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 935936
 
            NICHOLS-HOMESHIELD, 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.
 
            
 
                                     ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Defendants state the following issue on 
 
            appeal:  "Did the deputy err in awarding the claimant 
 
            permanent partial disability benefits equal to sixty-five 
 
            per cent [sic] of the body as a whole?"
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed August 18, 1992 are adopted as final agency 
 
            action.
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed August 18, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Defendants do not dispute that claimant sustained an 
 
            injury on August 19, 1989 and that such injury is a cause of 
 
            temporary and permanent disability.  The issue to be 
 
            determined is the extent of claimant's entitlement to weekly 
 
            compensation for permanent disability benefits.
 
            
 
                 Since claimant has suffered an injury, the next 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            question to be resolved is the extent of permanent 
 
            disability.  The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 19, 
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 
 
            868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 
 
            613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167, 171 (Iowa 1960).  Expert medical evidence must 
 
            be considered with all other evidence introduced bearing on 
 
            the causal connection.  Burt, 73 N.W.2d at 738.  The opinion 
 
            of the experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight to be 
 
            given to such an opinion is for the finder of fact, and that 
 
            may be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The medical records and expert opinion present a range 
 
            of functional impairment ratings from 5%-22%.  Reports from 
 
            evaluating physicians and claimant's treating physician 
 
            attribute claimant's present complaints to the August 1989 
 
            injury (Ex. D, G, H & I).  Defendants have presented no 
 
            evidence to the contrary.  Consequently, the claimant has 
 
            satisfied his burden of proof in demonstrating that he has 
 
            suffered a permanent back impairment as a result of his 
 
            August 1989 injury.
 
            
 
                 Claimant's back disability is an industrial disability 
 
            to the body as a whole and pursuant to Iowa Code section 
 
            85.34(2)(u), compensation shall be paid during the weeks in 
 
            relation to 500 weeks as the disability bears to the body of 
 
            the injured employee as a whole.  
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 
 
            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 person.  
 
            The essence of an earning capacity inquiry then, is not how 
 
            much has the claimant been functionally impaired, but 
 
            whether that impairment, in combination with the claimant's 
 
            age, education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within her restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors 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.  It therefore 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.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 Claimant was born on September 13, 1934.  His proximity 
 
            to normal retirement age affects his industrial disability.  
 
            Claimant is near the end of the normal work life.  Compared 
 
            to a younger worker with the same injury, claimant has lost 
 
            less future earning capacity as a result of his injury.  
 
            McClelland v. Midwest Biscuit Co., file number 802020 (Iowa 
 
            Industrial Commissioner App. Decn. September 20, 1989).  
 
            Claimant completed the ninth grade of school and obtained a 
 
            GED certificate while in the United States Air Force.  Kent 
 
            Jayne testified that claimant's aptitude, literacy level and 
 
            age make retraining potential non-feasible.  This contention 
 
            is not supported by the evidence.  In December 1990, 
 
            claimant was trained by Dennis Hoaglin to perform the work 
 
            of a data entry operator.  He learned how to use a computer 
 
            and Lotus spread sheet.  Claimant was not happy with this 
 
            job because of some criticism he received from fellow 
 
            workers.  He was then trained as a inventory checker.  He 
 
            performs this job two hours per day.  
 
            
 
                 It is apparent that claimant is foreclosed from 
 
            performing his past work activity as a rolling mill operator 
 
            and rolling mill operator's helper.  He has performed the 
 
            helper's job for the past ten years.  That job required 
 
            repetitive pushing and pulling of 50 pounds and other 
 
            strenuous physical activity.  Prior to the injury, claimant 
 
            was earning $13.25 per hour and worked 56 hours per week.  
 
            Claimant now works 10 hours per week at the same rate of 
 
            pay.  
 
            
 
                 Claimant contends that he is foreclosed from working a 
 
            40 hour week.  Claimant's vocational rehabilitation 
 
            counselor agrees.  However, Dr. Pawl disagrees.  He 
 
            indicated in June 1991 that claimant was capable of working 
 
            an eight hour shift with accommodations.  An evaluation at 
 
            the Mayo Clinic in October 1990 by Dr. Goldman indicated 
 
            that claimant had significant pain amplification.  Dr. 
 
            Hartman, responding to claimant's complaints of severe and 
 
            intractable pain, indicated to the Iowa Department of 
 
            Transportation that claimant is unable to reasonably walk in 
 
            excess of 200 feet unassisted (Ex. D, p. 36).  However, 
 
            claimant testified that he does not use an assistive device 
 
            in order to ambulate and none has been prescribed.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant's two hour per day work limitation appears to be 
 
            self-imposed.  No physician who has treated and/or examined 
 
            claimant has indicated that he is incapable of working or 
 
            can only work a reduced schedule.  While employers are 
 
            responsible for claimant's reduction in earning capacity 
 
            caused by the injury, they are not responsible for a 
 
            reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire & Rubber Co., 
 
            III Iowa Indus. Comm'r Report 279 (1982).
 
            
 
                 *****Claimant's complaints of pain have perplexed 
 
            physicians who have examined him.  In 1972, claimant was 
 
            described as having a low pain threshold.  (Ex. D, p. 9).  
 
            Dr. Sinning observed that claimant demonstrated considerable 
 
            over reaction to pain with inconsistencies on examination.  
 
            (Ex. G, p. 5).  Dr. Goldman diagnosed chronic pain syndrome 
 
            with pain amplification.  (Ex. H, p. 3).  Finally, Dr. Pawl 
 
            indicated there was no competent source for claimant's 
 
            continued complaints of pain.  (Ex. I, p. 2).  *****  He has 
 
            been prescribed Propox, a pain medication and Doxepin, a 
 
            sedative.  Claimant has degenerative arthritis of the 
 
            lumbosacral spine and this condition does not improve with 
 
            age.  Obviously, he has suffered further degeneration since 
 
            evaluations were performed in 1990 and 1991.  Claimant's 
 
            complaints of pain are found credible and supported by the 
 
            medical evidence.
 
            
 
                 *****
 
            
 
                 [Claimant has work restrictions imposed by his 
 
            physicians that limit his ability to compete in the job 
 
            market.  These include a limitation on not lifting more than 
 
            forty pounds repetitively or sixty pounds occasionally.  
 
            However, claimant's restriction on working less than eight 
 
            hours per day appears to be self-imposed.  All of claimant's 
 
            physicians agree that claimant tends to exaggerate his pain, 
 
            and this may be in part responsible for this self-imposed 
 
            restriction.  The medical evidence does not restrict 
 
            claimant's ability to work a full forty-hour week, eight 
 
            hours per day.
 
            
 
                 Claimant has lost substantial earnings since his 
 
            injury, but again, much of this may be attributable to the 
 
            far fewer hours he now works.  The employer has been 
 
            exemplary in its efforts to accommodate claimant, 
 
            reassigning him first to a computer job, which claimant 
 
            adapted to readily, then, upon his dissatisfaction, to yet 
 
            another position.
 
            
 
                 Claimant's age near the normal retirement age tends to 
 
            reduce the amount of earning capacity he has lost as a 
 
            result of his injury.  His demonstrated ability to perform a 
 
            sedentary, clerical job shows that in spite of his age, 
 
            retraining is possible.  If claimant returns to full-time 
 
            work as his physicians say he is capable of doing, the 
 
            employer has provided him with a job and he should be able 
 
            to eliminate any loss of earnings.
 
            
 
                 On the other hand, claimant does have a permanent 
 
            partial back impairment of five percent to 22 percent, which 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            puts him at a disadvantage to other workers in the 
 
            competitive job market.  Claimant's lifting restrictions 
 
            also put him at a disadvantage.
 
            
 
                 Taking these and all other factors of industrial 
 
            disability into account, it is concluded that claimant has 
 
            an industrial disability of forty percent.]
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant two hundred (200) weeks 
 
            of permanent partial disability benefits at the rate of four 
 
            hundred sixty-seven and 74/100 dollars ($467.74) per week 
 
            commencing December 10, 1990.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            P.O. Box 339
 
            Davenport, Iowa 52805
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East 3rd Street
 
            Davenport, Iowa 52801
 
            
 
 
            
 
            
 
            
 
            
 
                                             5-1803
 
                                             Filed August 20, 1993
 
                                             Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DONALD F. ROWE,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 935936
 
            NICHOLS-HOMESHIELD, INC.,       
 
                                                     A P P E A L
 
                 Employer,   
 
                                                    D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,   
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1803
 
            After evaluating all of the factors of industrial disability 
 
            including claimant's age (57 years), education (ninth grade 
 
            & GED certificate), past relevant work (rolling mill 
 
            operator's helper), limitations (light work activity), 
 
            inability to perform past work activity, and impairment 
 
            (degenerative arthritis of the lumbosacral spine with severe 
 
            and intractable pain), claimant found 65 percent 
 
            industrially disabled.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD F. ROWE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 935936
 
            NICHOLS-HOMESHIELD, 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 Donald 
 
            F. Rowe, claimant, against Nichols-Homeshield, 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 
 
            August 19, 1989.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner in Davenport, 
 
            Iowa on July 31, 1992.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Also present and testifying were 
 
            Kent Jayne, Robert LaMarre, Dennis Hoaglin and Tim Reed.  
 
            The documentary evidence identified in the record consists 
 
            of joint exhibits A-K and claimant's exhibits 1-10.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated July 
 
            31, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury; and,
 
            
 
                 2.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
                               FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant was born on September 13, 1934 and completed 
 
            the ninth grade of school.  He received his GED certificate 
 
            while in the United States Air Force.  Claimant commenced 
 
            working for employer on October 14, 1958.  He has worked for 
 
            the company for 34 years.  During the entire time he has 
 
            held two primary jobs, that of Rolling Mill operator and 
 
            that of Rolling Mill operator's helper.  He has held the 
 
            helper's job for approximately twice as long as the 
 
            operator's job, and specifically for the last nine or ten 
 
            years prior to his August 19, 1989 back injury.  At the time 
 
            of injury he was earning $13.25 per hour and working 56 
 
            hours per week.
 
            
 
                 A job analysis of rolling mill operator's helper was 
 
            performed by the Work Fitness Center in Moline, Illinois on 
 
            July 8, 1991.  The analysis was performed by Nina Golden, 
 
            MA/PT, Ergonomics Specialist.  The job duties required a 
 
            medium work capacity, lifting, carrying, pushing and pulling 
 
            up to 50 pounds as well as intermittent forward reaching, 
 
            forward bending and squatting.  Environmental conditions 
 
            included standing on concrete floors, with occasional oil 
 
            slicks, some noted surface irregularities and temperature 
 
            extremes.  The job also required intermittent walking of 
 
            less than 50 feet around the work area and about a 250 foot 
 
            walk from "close-in" parking.  (Exhibit J, pages 22-25).
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            claimant has been treated at The Davenport Clinic at various 
 
            times for problems related to back pain.  Lumbosacral spine 
 
            x-rays taken in September 1972 revealed mild degenerative 
 
            arthritis of the lumbar spine.  J. H. Sunderbruch, M.D., 
 
            reported on September 12, 1972:  "I feel that this patient's 
 
            pain threshold is very low and most of his symptoms are 
 
            subjective."  Dr. Sunderbruch found no objective medical 
 
            evidence as to why claimant could not continue to perform 
 
            light to mild heavy work.  (Ex. D, p. 6).  Claimant treated 
 
            at the clinic in September 1973 and August 1974 for 
 
            complaints referable to low back and left buttock pain.  
 
            X-rays of the lumbosacral spine taken in August 1974 were 
 
            unremarkable.  (Ex. D, pp. 9-11).
 
            
 
                 On August 22, 1989, claimant presented to Paul Hartman, 
 
            M.D., orthopedist at The Davenport Clinic, with complaints 
 
            of back pain.  He related this pain to a work injury on 
 
            August 19, 1989.  He experienced some muscle spasms in his 
 
            low back, with radiation into his right leg, while lifting 
 
            repetitively.  Dr. Hartman prescribed medication (Ex. D, p. 
 
            16).
 
            
 
                 Claimant's symptoms persisted and Dr. Hartman referred 
 
            him to Eugene Collins, M.D., for neurological evaluation.  
 
            Because his symptoms were compatible with a possible lumbar 
 
            radiculopathy, a myelogram followed by a CT scan was 
 
            recommended.  Therefore, on November 15, 1989, claimant was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            admitted to Mercy Hospital for testing.  A myelogram 
 
            revealed evidence of arthritis at L5-S1 but no definite 
 
            evidence of herniated disc or spinal stenosis.  (Ex. E).
 
            
 
                 Defendant insurance carrier referred claimant to John 
 
            E. Sinning, Jr., M.D., for evaluation.  Dr. Sinning examined 
 
            claimant on April 16, 1990.  Using the AMA Guide to the 
 
            Evaluation of Permanent Impairment, Dr. Sinning indicated 
 
            that claimant's condition fits under the category IIC, 
 
            "unoperated with medically documented injury and six months 
 
            of medically documented pain, recurrent muscle spasm, or 
 
            rigidity associated with moderate to severe degenerative 
 
            changes on structural tests, including unoperated herniated 
 
            nucleus pulposus with or without radiculopathy."  
 
            Considering also his limited range of motion, decreased 
 
            sensation, loss of function due to involvement of the 
 
            sciatic nerve, a whole body impairment rating of 22 percent 
 
            was assigned.  Dr. Sinning concluded that claimant has 
 
            degenerative disc disease with osteoarthritis of the lumbar 
 
            spine.  He noted that his examination demonstrated 
 
            considerable overreaction to pain with demonstrated 
 
            inconsistencies.  (Ex. G).
 
            
 
                 On May 7, 1990, Dr. Hartman referred claimant for a 
 
            lumbar epidural steroid injection at L4-5.  This was 
 
            repeated on June 4, 1990.  On July 26, 1990, Dr. Hartman 
 
            prescribed a lumbosacral corset brace.  On August 1, 1990, 
 
            he prescribed a backtrack traction unit.  (Ex. D, pp. 
 
            26-30).
 
            
 
                 Dr. Hartman also referred claimant to the Work Fitness 
 
            Center.  An initial interview was performed by Nina S. 
 
            Golden, PT, on July 6, 1990.  On July 9, 1990, a 
 
            musculoskeletal evaluation was performed by Leslie Skyberg, 
 
            PT.  Physical therapy was initiated on July 6, 1990.  A 
 
            summary report dated September 27, 1990 stated that: "No 
 
            intervention method has offered substantial benefits to 
 
            date.  He reports only short term relief, and the best pain 
 
            relief is from traction...his chief complaints of pain are 
 
            with all weight bearing activities, especially walking and 
 
            static standing."  (Ex. J, p. 16).  Due to claimant's 
 
            chronic pain pattern, work hardening was not recommended.  
 
            (Ex. J, p. 17).
 
            
 
                 Defendant insurance carrier sent claimant to the Mayo 
 
            Clinic for evaluation on October 4, 1990.  A thorough 
 
            examination was conducted and the following diagnoses given:  
 
            (1)  Chronic inactive L5 radiculopathy; (2) Superimposed 
 
            chronic pain syndrome with pain amplification; and, (3) 
 
            Apparent habituation to narcotics.  (Ex. H, pp. 1-4).
 
            
 
                 On November 21, 1990, Sherwin Goldman, M.D., from the 
 
            Mayo Clinic indicated that claimant's inactive radiculopathy 
 
            has probably plateaued and an appropriate rating would be in 
 
            the range of ten percent of the whole man.  (Ex. H, p. 5).
 
            
 
                 On December 10, 1990, Dr. Hartman completed a 
 
            physicians statement indicating that claimant has work 
 
            limitations which include no frequent pulling/pushing, 
 
            climbing, twisting, turning, heavy and frequent lifting and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            bending.  He indicated that claimant must be able to move at 
 
            will between 2-3 hours per day.  (Ex. D, p. 31).
 
            
 
                 On December 13, 1990, a report was issued by the Work 
 
            Fitness Center indicating that claimant was ready to start 
 
            work two hours per day as a data entry operator.  On 
 
            December 19, 1990, claimant returned to work in a newly 
 
            created position with employer working at a VDT terminal.  
 
            He was fitted with a ergonomic chair, document holder and 
 
            foot rest.  (Ex. J, p. 19).
 
            
 
                 On April 1, 1991, defendant insurance carrier referred 
 
            claimant to Lake Forest Hospital Pain Treatment Center in 
 
            Lake Forest, Illinois for evaluation.  On April 16, 1991, 
 
            Ronald P. Pawl, M.D., reported that based on diagnostic 
 
            studies, there was no competent source for claimant's 
 
            continued complaints of pain.  It was his opinion that there 
 
            is no indication for further medical treatment or 
 
            rehabilitation.  Dr. Pawl stated that claimant is restricted 
 
            from activities requiring repeated bending, lifting or 
 
            twisting and lifting more than 40 pounds on a regular basis 
 
            and 60 pounds on an occasional basis.  He opined, "I see no 
 
            reason to restrict him from a medical standpoint from 
 
            working an eight hour day, but since he has been off of work 
 
            a period of time and has the degenerative changes in his 
 
            back, I do think it would be wise to allow him to return to 
 
            work half days for two weeks and then begin a full eight 
 
            hour shift."  (Ex. I, p. 11).
 
            
 
                 An employee ability assessment was made by Kent Jayne, 
 
            vocational rehabilitation consultant, February 25, 1992.  
 
            Based on claimant's age, education, aptitude, past work 
 
            experience and medical problems, Mr. Jayne concluded that 
 
            claimant is, "essentially unemployable at a competitive 
 
            level."  (Ex. K, p. 4).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Defendants do not dispute that claimant sustained an 
 
            injury on August 19, 1989 and that such injury is a cause of 
 
            temporary and permanent disability.  The issue to be 
 
            determined is the extent of claimant's entitlement to weekly 
 
            compensation for permanent disability benefits.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is the extent of permanent 
 
            disability.  The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 19, 
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 
 
            868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607, 
 
            613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167, 171 (Iowa 1960).  Expert medical evidence must 
 
            be considered with all other evidence introduced bearing on 
 
            the causal connection.  Burt, 73 N.W.2d at 738.  The opinion 
 
            of the experts need not be couched in definite, positive or 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight to be 
 
            given to such an opinion is for the finder of fact, and that 
 
            may be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The medical records and expert opinion present a range 
 
            of functional impairment ratings from 5%-22%.  Reports from 
 
            evaluating physicians and claimant's treating physician 
 
            attribute claimant's present complaints to the August 1989 
 
            injury (Ex. D, G, H & I).  Defendants have presented no 
 
            evidence to the contrary.  Consequently, the claimant has 
 
            satisfied his burden of proof in demonstrating that he has 
 
            suffered a permanent back impairment as a result of his 
 
            August 1989 injury.
 
            
 
                 Claimant's back disability is an industrial disability 
 
            to the body as a whole and pursuant to Iowa Code section 
 
            85.34(2)(u), compensation shall be paid during the weeks in 
 
            relation to 500 weeks as the disability bears to the body of 
 
            the injured employee as a whole.  
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 
 
            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 person.  
 
            The essence of an earning capacity inquiry then, is not how 
 
            much has the claimant been functionally impaired, but 
 
            whether that impairment, in combination with the claimant's 
 
            age, education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within her restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors 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.  It therefore 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.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 Claimant was born on September 13, 1934.  His proximity 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            to normal retirement age affects his industrial disability.  
 
            Claimant is near the end of the normal work life.  Compared 
 
            to a younger worker with the same injury, claimant has lost 
 
            less future earning capacity as a result of his injury.  
 
            McClelland v. Midwest Biscuit Co., file number 802020 (Iowa 
 
            Industrial Commissioner Appl Decn. September 20, 1989).  
 
            Claimant completed the ninth grade of school and obtained a 
 
            GED certificate while in the United States Air Force.  Kent 
 
            Jayne testified that claimant's aptitude, literacy level and 
 
            age make retraining potential non-feasible.  This contention 
 
            is not supported by the evidence.  In December 1990, 
 
            claimant was trained by Dennis Hoaglin to perform the work 
 
            of a data entry operator.  He learned how to use a computer 
 
            and Lotus spread sheet.  Claimant was not happy with this 
 
            job because of some criticism he received from fellow 
 
            workers.  He was then trained as a inventory checker.  He 
 
            performs this job two hours per day.  
 
            
 
                 It is apparent that claimant is foreclosed from 
 
            performing his past work activity as a rolling mill operator 
 
            and rolling mill operator's helper.  He has performed the 
 
            helper's job for the past ten years.  That job required 
 
            repetitive pushing and pulling of 50 pounds and other 
 
            strenuous physical activity.  Prior to the injury, claimant 
 
            was earning $13.25 per hour and worked 56 hours per week.  
 
            Claimant now works 10 hours per week at the same rate of 
 
            pay.  
 
            
 
                 Claimant contends that he is foreclosed from working a 
 
            40 hour week.  Claimant's vocational rehabilitation 
 
            counselor agrees.  However, Dr. Pawl disagrees.  He 
 
            indicated in June 1991 that claimant was capable of working 
 
            an eight hour shift with accommodations.  An evaluation at 
 
            the Mayo Clinic in October 1990 by Dr. Goldman indicated 
 
            that claimant had significant pain amplification.  Dr. 
 
            Hartman, responding to claimant's complaints of severe and 
 
            intractable pain, indicated to the Iowa Department of 
 
            Transportation that claimant is unable to reasonably walk in 
 
            excess of 200 feet unassisted (Ex. D, p. 36).  However, 
 
            claimant testified that he does not use an assistive device 
 
            in order to ambulate and none has been prescribed.  
 
            Claimant's two hour per day work limitation appears to be 
 
            self-imposed.  No physician who has treated and/or examined 
 
            claimant has indicated that he is incapable of working or 
 
            can only work a reduced schedule.  While employers are 
 
            responsible for claimant's reduction in earning capacity 
 
            caused by the injury, they are not responsible for a 
 
            reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire & Rubber Co., 
 
            III Iowa Indus. Comm'r Report 279 (1982).
 
            
 
                 At the hearing, claimant was unable to sit for more 
 
            than 30 minutes at a time without standing or moving about 
 
            in order to achieve maximum comfort.  Claimant's complaints 
 
            of pain have perplexed physicians who have examined him.  In 
 
            1972, claimant was described as having a low pain threshold.  
 
            (Ex. D, p. 9).  Dr. Sinning observed that claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            demonstrated considerable over reaction to pain with 
 
            inconsistencies on examination.  (Ex. G, p. 5).  Dr. Goldman 
 
            diagnosed chronic pain syndrome with pain amplification.  
 
            (Ex. H, p. 3).  Finally, Dr. Pawl indicated there was no 
 
            competent source for claimant's continued complaints of 
 
            pain.  (Ex. I, p. 2).  Nevertheless, it was evident to the 
 
            undersigned that claimant was in pain and needed to 
 
            frequently alternate between sitting and standing.  He has 
 
            been prescribed Propox, a pain medication and Doxepin, a 
 
            sedative.  Claimant has degenerative arthritis of the 
 
            lumbosacral spine and this condition does not improve with 
 
            age.  Obviously, he has suffered further degeneration since 
 
            evaluations were performed in 1990 and 1991.  Claimant's 
 
            complaints of pain are found credible and supported by the 
 
            medical evidence.
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant is 65 
 
            percent industrially disabled.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant three hundred 
 
            twenty-five (325) weeks of permanent partial disability 
 
            benefits at the rate of four hundred sixty-seven and 74/100 
 
            dollars ($467.74) per week commencing December 10, 1990.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael W Liebbe
 
            Attorney at Law
 
            116 East 6th Street
 
            PO Box 339
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Davenport Iowa 52805
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East 3rd Street
 
            Davenport Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed August 18, 1992
 
                                             JEAN M. INGRASSIA
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DONALD F. ROWE,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 935936
 
            NICHOLS-HOMESHIELD, 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.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            After evaluating all of the factors of industrial disability 
 
            including claimant's age (57 years), education (ninth grade 
 
            & GED certificate), past relevant work (rolling mill 
 
            operator's helper), limitations (light work activity), 
 
            inability to perform past work activity, and impairment 
 
            (degenerative arthritis of the lumbosacral spine with severe 
 
            and intractable pain), claimant found 65 percent 
 
            industrially disabled.
 
            
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
MELISSA S. JOHANNSEN,      
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                      File No. 936004
 
BIL MAR FOODS,   
 
                                        A P P E A L
 
     Employer,   
 
                                      D E C I S I O N
 
and         
 
            
 
TRAVELERS 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 December 16, 1994 is affirmed 
 
and is adopted as the final agency action in this case.
 
 
 
Defendants shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
 
 
Signed and filed this ____ day of March, 1995.         
 
                             _______________________________
 
                             BYRON K. ORTON           
 
                             INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Steve Hamilton
 
Attorney at Law
 
P.O. Box 188
 
Storm Lake, Iowa 50588
 
 
 
Mr. Charles T. Patterson
 
Ms. Judith Ann Higgs
 
Attorneys at Law
 
P.O. Box 3086
 
Sioux City Iowa 51102
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                    5-1803
 
                                    Filed March 24, 1995
 
                                    Byron K. Orton
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
MELISSA S. JOHANNSEN,      
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 936004
 
BIL MAR FOODS,   
 
                                          A P P E A L
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
TRAVELERS INSURANCE COMPANY,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
5-1803
 
Claimant awarded 25 percent industrial disability.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
MELISSA S. JOHANNSEN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 936004
 
BIL MAR FOODS,     
 
                                    A R B I T R A T I O N
 
     Employer, 
 
                                       D E C I S I O N
 
and       
 
          
 
TRAVELERS INSURANCE,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                 STATEMENT OF THE CASE
 
 
 
Melissa S. Johannsen, claimant, has filed a petition in arbitration and 
 
seeks workers' compensation benefits from Bil Mar Foods, defendant 
 
employer and Travelers Insurance Company, defendant insurance carrier.  
 
The hearing was held before the undersigned on October 20, 1994 at 
 
Mason City, Iowa.  The evidence in this case consists of the testimony 
 
of claimant, and her husband Joel Johannsen; joint exhibits 1 through 
 
31 and claimant's exhibits A through F.  The case was considered fully 
 
submitted at the close of the hearing.  Claimant submitted a 
 
posthearing brief on October 31, 1994 and defendants submitted a 
 
supplement to their trial brief on October 31, 1994.
 
 
 
                               ISSUES
 
 
 
The parties submitted the following issues for resolution:
 
 
 
1.  Whether claimant's injury of November 3, 1989 was the cause 
 
of any permanent disability; and
 
 
 
2.  Whether claimant is entitled to permanent partial disability 
 
benefits, and if so, the nature and extent of those benefits.
 
 
 
                          FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner, having reviewed all of 
 
the evidence received, finds the following facts:
 
 
 
At the time of the hearing the claimant was 34 years old, married with 
 
one child.  She graduated from high school in 1978.
 
 
 
Beginning in 1976 claimant began working for Alco, a discount store, as 
 
a sales clerk.  She continued to work at Alco after graduation from 
 
high school until 1982 when she quit for a better paying job at Bil Mar 
 
Foods.  
 
 
 
Claimant's hourly starting wage at Bil Mar Foods was $5.00 per hour.  
 
When her employment was terminated in October of 1990 she was making 
 
$7.90 per hour.   
 
 
 
Bil Mar Foods is a poultry processing plant.  Employees, including 
 
claimant, work on a production line processing the poultry for eventual 
 
sale to the public.
 
 
 
During the first two years of her employment claimant worked on a 
 
production line.  After two years she became a "floater" primarily in 
 
the white meat department where she worked for the next six years.  As 
 
a floater she was required to work wherever she was needed in the 
 
plant.  Most often, she worked as a "trimmer" in the white meat 
 

 
 
 
 
 
 
 
department.  Turkeys entered the department killed and chilled and the 
 
claimant, along with her coworkers, deboned and trimmed the birds.  
 
As a trimmer she worked most often at what she called the "dropping the 
 
breast job;" where the breast was separated from the rest of the 
 
turkey.  Claimant performed up to four cuts per bird and trimmed 14 to 
 
16 birds per minute.  She is right handed and would hold the knife in 
 
her right hand and the turkey in her left while she made the cuts.  The 
 
work was repetitive in nature, requiring her to work quickly and 
 
accurately.  
 
 
 
Her work day usually lasted between seven and eight hours, beginning at 
 
7:00 a.m. and concluding at 3:30 p.m. or 4:00 p.m.  She received a one 
 
hour lunch break and two fifteen-minute breaks, one in the morning and 
 
the other in the afternoon.  During the busy season she was required to 
 
work longer than eight hours per day.
 
 
 
Prior to beginning her employment with Bil Mar Foods claimant was 
 
injured on June 30, 1980 when she was walking her dog.  The dog's leash 
 
was wrapped around her right wrist when the dog took off and pulled her 
 
right wrist and injured it.  Later while walking her dog she fell down 
 
and came down on her wrist.  (Joint Exhibit 1, p. 9)  Her wrist 
 
completely healed and the dog walking injury is not connected in any 
 
way to her later injuries at Bil Mar Foods.  
 
 
 
Claimant saw Jonathan J. Hruska, M.D. on April 22, 1983 and he 
 
recommended claimant change to a job involving less flexion and 
 
extension of her left wrist.  (Jt. Ex. 2)  Dr. Hruska's diagnosis was 
 
"[r]ecurrent tendonitis left wrist, with carpal tunnel syndrome." (Jt. 
 
Ex. 1, p. 8)  
 
 
 
She was referred to M. E. Wheeler, M.D. whom she first saw on May 25, 
 
1983.  Dr. Wheeler's examination revealed a positive Tinel's test and a 
 
positive Phalen's test.  Nerve conduction studies showed a 3.3 
 
millisecond delay.  Dr. Wheeler diagnosed mild carpal tunnel syndrome.  
 
(Jt. Ex. 3)  She was taken off work until her next appointment on June 
 
6, 1983 when Dr. Wheeler noted that "[s]he has had almost complete 
 
resolution of her symptoms." (Jt. Ex. 3)  Claimant was allowed to 
 
return to work on June 13, 1983 and instructed to return to Dr. Wheeler 
 
on as needed basis.  (Jt. Ex. 3)  Claimant never returned to Dr. 
 
Wheeler and her injury of 1983 completely resolved itself and is in no 
 
way connected to her November 3, 1989 injury.  
 
 
 
On June 18, 1986 claimant caught her right hand in a boning machine.  
 
The cut in her hand required 12 stitches and she was off work for a 
 
short period of time.  A recheck on June 19, 1986 revealed no problems 
 
and her stitches were removed on June 26, 1986 with no problems.  (Jt. 
 
Ex. 1, p. 6)  Her injury of 1986 left no permanent impairment and is in 
 
no way related to her injuries of November 3, 1989.
 
 
 
In July of 1989 claimant was treated by J.P. Faine, D.C., for severe 
 
cervicobrachial neuralgia.  She was placed on light duty.  (Jt. Ex. 10)
 
On November 3, 1989 claimant was sent by the Bil Mar Foods company 
 
nurse to J. Nilles, M.D.  Claimant complained of problems with her 
 
right wrist.  She had tingling and numbness in her little, ring and 
 
long finger.  Dr. Nilles assessed claimant as having either tendonitis 
 
of the right wrist or mild carpal tunnel syndrome on the right.  She 
 
was given a splint to wear at all times.  (Jt. Ex. 1, p. 5)  At a 
 
recheck two weeks later (November 17, 1989) claimant stated that her 
 
left wrist was now worse than her right.  She was experiencing a lot of 
 
tingling and pain in the left ring, little and middle finger.  Claimant 
 
was taken off work until December 1, 1989 when she was allowed to 
 
return to work with instructions to keep her wrists wrapped. (Jt. Ex. 
 
1, p. 5)  
 
 
 
Nerve conduction studies performed on November 24, 1989 showed a 
 
slowing on the left side compatible with mild carpal tunnel syndrome.  
 
Right side studies were within normal limits.  (Jt. Ex. 12)
 
 
 
On February 27, 1990 Dr. Nilles diagnosed biceps tendonitis of the 
 
right shoulder.  Dr. Nilles could not document that claimant's right 
 
shoulder injury was work related because claimant had not complained of 
 
shoulder pain during her visit of February 2, 1990. (Jt. Ex. 1, p. 1)  
 
It is clear from Joint Exhibit 4, that claimant had complained to the 
 
company nurse at Bil Mar Foods of shoulder pain as early as 1988.  
 

 
 
 
 
 
 
 
 
 
Subsequent nurses notes throughout 1989 show that complaint did voice 
 
complaints of right shoulder pain.  (Jt. Ex. 4, p. 1,2)  
 
On March 29, 1990 Dr. Faine saw claimant again and found moderate 
 
soreness in the right shoulder and moderate soreness over the short and 
 
long head of the biceps tendon.  He also determined that her complaints 
 
were consistent with objective findings.  (Jt. Ex. 29, Deposition Ex. 3 
 
p. 1)
 
 
 
Claimant was referred to J. Michael Donohue, M.D., whom she first saw 
 
on May 18, 1990.  Dr. Donohue prescribed a rehabilitation program three 
 
times per week, which claimant underwent for eight weeks, and required 
 
claimant to avoid repetitive use of her upper extremity and to wear 
 
splints while at work.  (Jt. Ex. 19)  Dr. Donohue determined that based 
 
on the multiple area of involvement he had no surgery to offer claimant 
 
that would improve her situation.  (Jt. Ex. 21, p. 1)  
 
 
 
On August 17, 1990 Dr. Donohue placed permanent work restrictions on 
 
claimant.  His permanent work restrictions included no repetitive use 
 
of the right or left wrist or of the right shoulder.  He further 
 
defined repetitive to be any action performed over 60 times per hour. 
 
(Jt. Ex. 25)  Dr. Donohue has never lifted these restrictions.  Dr. 
 
Donohue has not given claimant a permanent impairment rating.
 
 
 
Claimant presented her permanent work restrictions to Bil Mar Foods and 
 
was told they had no work for her.  She then applied for and received 
 
unemployment benefits.  After her unemployment benefits ran out she 
 
again contacted Bil Mar Foods to see if they could give her work that 
 
would meet her permanent work restrictions.  She was told they had no 
 
work that would comply with her work restrictions.  
 
 
 
Thomas L. DeBartolo, M.D., evaluated claimant on February 13, 1991.  
 
Dr. DeBartolo determined she had a 12 percent impairment of the right 
 
upper extremity due to chronic shoulder impingement.  (Jt. Ex. 29, 
 
Depo. Ex. 4, p. 1)  
 
 
 
Joel T. Cotton, M.D., evaluated claimant on February 10, 1992 and 
 
determined that she had no functional impairment at all.  (Jt. Ex. 28)
 
On February 10, 1994 claimant was evaluated by L. T. Donovan, D.O.  His 
 
impression was bilateral hand numbness and rotator cuff tendonitis.  
 
(Jt. Ex. 29A)  Dr. Donovan attributed claimant's symptoms and 
 
complaints to her current employment at Aalfs Distribution Center.  
 
Claimant's complaints and symptoms have not changed since she worked at 
 
Bil Mar Foods, they are not attributable to her work at Aalfs 
 
Distribution Center.
 
 
 
During his deposition Dr. Donovan was asked to draw a diagram of the 
 
shoulder.  The shoulder diagram is Joint Exhibit 29 and Deposition 
 
Exhibit 5.  Dr. Donovan identified the region inside the square on the 
 
diagram as being the shoulder region, containing two joints, the 
 
glenohumeral joint and the acromioclavicular joint, known as the AC 
 
joint.  (Jt. Ex. 29, Depo. Ex. 5, p. 27)  On examination Dr. Donovan 
 
determined that claimant's pain was confined to the area of the diagram 
 
indicated by the circle.  (Jt. Ex. 29, Depo. Ex. 5, p. 28)  From the 
 
diagram drawn and described by Dr. Donovan it is clear that claimant's 
 
complaints enter into the body and are not confined to the right arm.
 
 
 
Claimant made extensive efforts to look for work after being refused 
 
continued employment with Bil Mar Foods as is evidenced by Joint 
 
Exhibit 31.  She went back to work at Alco for a period of time as a 
 
part-time sales clerk at $4.35 per hour.  She quit Alco in May of 1992 
 
when she and her husband adopted a child.  She is currently employed at 
 
Aalfs Distribution Center packing boxes with blue jeans.  She works 25 
 
to 30 hours per week and is paid $6.25 per hour.  Aalfs is currently 
 
unable to offer her forty hours per week and she has been laid off 
 
three times in the past.  She is allowed to work at her own pace and is 
 
not required to work with her arms above shoulder level.  
 
 
 
                ANALYSIS AND CONCLUSIONS OF LAW
 
 
 
The first issue to be determined is whether claimant's injury of 
 
November 3, 1989 resulted in any permanent disability.
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 

 
 
 
 
 
 
 
 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
Defendants contend that claimant's injury has left her with no 
 
permanent disability because Drs. Donovan, Donohue and Cotton have 
 
determined that she has no functional impairment.  Only Dr. DeBartolo 
 
has provided a permanent impairment rating of 12 percent of the right 
 
upper extremity.  However, claimant's treating doctor, Dr. Donohue 
 
placed permanent restrictions on claimant that prevented Bil Mar Foods 
 
from employing her after she was released from his care.  Dr. Donohue 
 
has never lifted those restrictions.  The very nature of the permanent 
 
restrictions indicate that claimant has permanent impairment, she is 
 
unable to engage in the work she was doing before her injury.  Thus, it 
 
is determined that claimant's injury did result in permanent 
 
disability.
 
 
 
The final issue to be determined is the nature and extent of claimant's 
 
entitlement to permanent partial disability benefits.  The threshold 
 
question is whether claimant's injury is to a scheduled member or to 
 
her body as a whole.  
 
 
 
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 cuff was found to 
 
cause disability to the body as a whole.
 
 
 
It is clear from Dr. Donovan's deposition and the diagram drawn by him, 
 
that claimant's injury extends into her body and is not confined to her 
 
arm.  Claimant's pain clearly extends into her body and is not confined 
 
to her arm.  Thus, it is determined that claimant's injury is to the 
 
body as a whole and not to her right arm.  Since claimant's injury is 
 
to her body as a whole an evaluation of her industrial disability is 
 
mandated.
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience and inability to engage in 
 
employment for which the employee is fitted.  Olson v. Goodyear Serv. 
 
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references to anatomical or functional abnormality or loss.  Although 
 
loss of function is to be considered and disability can rarely be found 
 
without it, it is not so that a degree of industrial disability is 
 
proportionally related to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 
the length of the healing period; the work experience of the employee 
 
prior to the injury and after the injury and the potential for 
 
rehabilitation; the employee's qualifications intellectually, 
 
emotionally and physically; earnings prior and subsequent to the 
 
injury; age; education; motivation; functional impairment as a result 
 

 
 
 
 
 
 
 
 
 
of the injury; and inability because of the injury to engage in 
 
employment for which the employee is fitted.  Loss of earnings caused 
 
by a job transfer for reasons related to the injury is also relevant.  
 
 
 
Likewise, an employer's refusal to give any sort of work to an impaired 
 
employee may justify an award of disability.  McSpadden v. Big Ben Coal 
 
Co., 288 N.W.2d 181 (Iowa 1980).  These are matters which the finder of 
 
fact considers collectively in arriving at the determination of the 
 
degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how each of the factors 
 
are to be considered.  Neither does a rating of functional impairment 
 
directly correlate to a degree of industrial disability to the body as 
 
a whole.  In other words, there are no formulae which can be applied 
 
and then added up to determine the degree of industrial disability.  It 
 
therefore becomes necessary for the deputy or commissioner to draw upon 
 
prior experience as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  See 
 
Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner 
 
Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
At the time of the hearing claimant was 34 years old.  Her job at Bil 
 
Mar Foods paid significantly more than her current employment with 
 
Aalfs Distribution Center.  She has gone from full time hours to 
 
part-time hours.  Her pay has dropped from $7.90 per hour in 1990 to 
 
$6.25 per hour currently.  
 
 
 
She actively sought other employment after Bil Mar Foods  refused her 
 
work that complied with her work restrictions.  Clearly claimant was 
 
motivated to return to work. 
 
 
 
After considering all of the factors that comprise industrial 
 
disability it is determined that claimant has a 25 percent industrial 
 
disability.
 
 
 
                                  ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
That defendants pay claimant one hundred twenty-five (125) weeks of 
 
permanent partial disability benefits at the rate of one hundred 
 
ninety 38/100 ($190.38) dollars per week.
 
 
 
That defendants pay accrued benefits in a lump sum.
 
 
 
That defendants pay interest as provided by Iowa Code 85.30.
 
 
 
That defendants pay the costs of this action pursuant to IAC rule 
 
343-4.33.
 
 
 
That defendants file claim activity reports as requested by the agency.
 
 
 
Signed and filed this __________ day of December, 1994.
 
                              
 
                              ______________________________
 
                              TERESA K. HILLARY
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Steve Hamilton
 
Attorney at Law
 
PO Box 188
 
606 Ontario St
 
Storm Lake, Iowa  50588
 
 
 
Mr. Charles T. Patterson
 
Ms. Judith Ann Higgs
 
Attorneys at Law
 
701 Pierce St, STE 200
 
PO Box 3086
 
Sioux City, Iowa  51102-3086
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                  51803
 
                                  Filed December 16, 1994
 
                                  Teresa K. Hillary
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
MELISSA S. JOHANNSEN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 936004
 
BIL MAR FOODS,     
 
                                 A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
TRAVELERS INSURANCE,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
51803
 
Claimant awarded 25 percent industrial disability.
 
 
 
 
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CYNTHIA WEISBROOK,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936135
 
            MAGUIRE AUTO,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERICIAL    :
 
            INSURANCE,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Cynthia 
 
            Weisbrook, claimant, against Maguire Auto, employer, and 
 
            Crum & Forster Commercial Insurance, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an alleged injury sustained 
 
            on November 13, 1988.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner on 
 
            July 7, 1992, in Council Bluffs, Iowa.  The claimant was 
 
            present and testified.  Also present and testifying were 
 
            Susan and Terry Maguire and Thomas J. Orth, D.C.  The record 
 
            was considered fully submitted at the close of the hearing.  
 
            The documentary evidence identified in the record consists 
 
            of claimant's exhibits 1 through 27 and defendants' exhibits 
 
            A through C.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated July 
 
            7, 1992, the parties have presented the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on November 
 
            13, 1988, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury; and
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Defendants also assert a notice defense under Iowa Code 
 
            section 85.23.
 
            
 
                                 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 was born on September 17, 1959, and completed 
 
            the tenth grade of school.  She received her GED certificate 
 
            in 1988.  She has a nurse's aide certificate.  Claimant 
 
            worked for employer from April 1988 through March 1989 as a 
 
            cashier.  This job also required stocking coolers, washing 
 
            and waxing floors and stripping floors every six months.  
 
            
 
                 Claimant testified that on November 13, 1988, while 
 
            stripping floors after closing hours, she slipped and fell 
 
            on the concrete floor hitting her right hip and elbow.  She 
 
            testified that she notified Terry Maguire, co-owner of the 
 
            business, regarding the incident, and he completed the job 
 
            for her.  
 
            
 
                 Mr. Maguire testified to the contrary.  He stated that 
 
            on November 13, 1988, he worked with claimant from 8 p.m. 
 
            until 11 p.m. stripping and waxing the floor.  He testified 
 
            that at no time during the course of the evening did he 
 
            observe claimant fall and at no time did she report that she 
 
            had slipped and fell during the course of the evening.  The 
 
            first he knew of the alleged incident is when he was 
 
            contacted by claimant's attorney on November 8, 1989.
 
            
 
                 Claimant continued to work for employer without any 
 
            time off work as a result of the alleged injury and was able 
 
            to perform her usual and customary duties without 
 
            restrictions.  Claimant was fired by employer on March 13, 
 
            1989, for reasons unrelated to any medical problems.  On 
 
            November 13, 1990, she filed a petition for workers' 
 
            compensation benefits alleging an injury on November 13, 
 
            1988.
 
            
 
                 On March 14, 1989, claimant, without authorization or 
 
            knowledge of employer, presented to Thomas J. Orth, D.C., 
 
            for examination.  Dr. Orth testified at the hearing that 
 
            after treating claimant for three years, his working 
 
            diagnosis included a lumbar sprain/strain with posterior 
 
            facet syndrome producing sciatica and cervicalgia and 
 
            headaches.  It was his opinion that based on claimant's 
 
            symptoms and medical history, the injury of November 13, 
 
            1988, aggravated a preexisting back condition.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 After carefully reviewing the total evidence in this 
 
            case, it is determined that claimant failed to give timely 
 
            notice as required by Iowa Code section 85.23 and that 
 
            defendants did not have actual notice of an injury until 
 
            November 8, 1989, when they were contacted by letter from 
 
            claimant's attorney.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Iowa Code section 85.23 provides:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Failure to give timely notice is an affirmative defense 
 
            which defendants must prove by a preponderance of the 
 
            evidence.  DeLong v. Highway Commissioner, 229 Iowa 700, 295 
 
            N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 
 
            108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            191 (Appeal Decision 1977).
 
            
 
                 The purpose of the 90-day notice requirement or the 
 
            actual knowledge requirement is to give the employer an 
 
            opportunity to timely investigate the circumstances of the 
 
            alleged injury.  Knipe v. Skelgas Company, 229 Iowa 740, 
 
            759, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 231 Iowa 
 
            860, 2 N.W.2d 275 (Iowa 1942); Robinson v. Department of 
 
            Transportation, 296 N.W.2d 809 (Iowa 1980); Dillinger v. 
 
            City of Sioux City, 368 N.W.2d 176 (Iowa 1985).
 
            
 
                 Defendants testified that the first knowledge they had 
 
            of a work injury was on November 8, 1989.  The first report 
 
            of injury which appears in the industrial commissioner's 
 
            file was received on October 9, 1990.  It shows that 
 
            employer first knew of claimant's condition on November 8, 
 
            1989.  Even if it were to be determined that the letter of 
 
            claimant's attorney on October 8, 1989, constituted notice, 
 
            which it does not, it would still, nevertheless, be untimely 
 
            because it was not made within 90 days of the alleged injury 
 
            on the original notice and petition filed on November 13, 
 
            1990.
 
            
 
                 Claimant is not entitled to the benefits of the 
 
            discovery rule which gives claimant 90 days from the time 
 
            that claimant acting reasonably, should know her injury is 
 
            both serious and work connected.  Jacques v. Farmer's Lbr. & 
 
            Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239-40 (1951); 
 
            Robinson, 296 N.W.2d 809.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
         
 
              The discovery rule is most often stated in the terms which 
 
         the Robinson court used citing from Larson, "The time period for 
 
         notice or claim does not begin to run until the claimant, as a 
 
         reasonable person, should recognize the nature, seriousness and 
 
         probable compensable character of his injury or disease." 2B 
 
         Larson, Workmen'78.31(ch 14, 1989, during the initial 
 
         evaluation (ex. 16).  It appears to the undersigned that Dr. Orth 
 
         came by this knowledge at a later date and possibly in 
 
         preparation for this litigation.  Therefore, Dr. Orth's opinions 
 
         as to medical causation are not entitled to significant weight 
 
         and consideration.
 
         
 
              Wherefore, it is determined that claimant did not give 
 
         notice and defendant employer did not have actual notice of a 
 
         work-related injury which arose out of and in the course of 
 
         employment with employer within 90 days of the occurrence of the 
 
         injury or within 90 days after she discovered the nature, 
 
         seriousness or the compensable character of the injury.
 
         
 
              Accordingly, defendants have sustained their burden of proof 
 
         by a preponderance of the evidence that claimant failed to give 
 
         timely notice of a workers' compensation claim as required by 
 
         Iowa Code section 85.23 and that defendants did not have actual 
 
         notice of the occurrence of an injury received within 90 days 
 
         from the date of the occurrence of the injury.   DeLong, 229 Iowa 
 
         700, 295 N.W. 91; Reddick, 230 Iowa 108, 296 N.W. 800; Mefferd, 
 
         Thirty-third Biennial Report of the Industrial Commissioner 191.
 
         
 
              A preponderance of the evidence is "evidence that is more 
 
         convincing than opposing evidence" Iowa Civil Jury Instructions 
 
         100.3.  It is determined that defendants have sustained the 
 
         burden of proof by a preponderance of the evidence that they did 
 
         not have actual knowledge of an injury arising out of and in the 
 
         course of employment and that claimant did not give notice of 
 
         such a possible injury until November 8, 1989, which is at least 
 
         one year after the date of the injury.
 
         
 
              This issue is dispositive of the entire case and further 
 
         analysis is unnecessary.
 
         
 
                                        
 
         
 
                                        
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from these proceedings.
 
         
 

 
         
 
         Page òòò  6        
 
         
 
         
 
         
 
              It is further ordered that each party pay its own costs 
 
         incurred in participating in this proceeding pursuant to rule 343 
 
         IAC 4.33.
 
         
 
              Signed and filed this ____ day of July, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. John W. Kocourek
 
         Attorney at Law
 
         STE 406 Metropolitan Fed Bank Bldg
 
         PO Box 1661
 
         Council Bluffs, Iowa  51503
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 - 73rd STE 16
 
         Des Moines, Iowa  50312
 
         
 
              
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                                                  2401
 
                                                  Filed July 24, 1992
 
                                                  Jean M. Ingrassia
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CYNTHIA WEISBROOK,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936135
 
            MAGUIRE AUTO,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERICIAL    :
 
            INSURANCE,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2401
 
            Claimant failed to give notice as required by Iowa Code 
 
            section 85.23 and defendants did not have actual notice of 
 
            an alleged work-related injury.