BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         MICHAEL DRISCOLL,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                    File No. 944659
 
         METZ BAKING COMPANY,       
 
                                                     A P P E A L
 
              Employer,   
 
                                                    D E C I S I O N
 
         and         
 
                     
 
         SENTRY INSURANCE,     
 
                     
 
              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
 
         
 
         The issues on appeal are:  Whether claimant's exhibits should be 
 
         excluded for failure to timely serve an exhibit list; whether 
 
         certain of claimant's witnesses should be prevented from 
 
         testifying for failure to timely serve a witness list; and 
 
         whether claimant has proved that he suffered an injury on or 
 
         about January 26, 1990 that arose out of and in the course of his 
 
         employment.  Because this is a de novo review and because of the 
 
         determinations made below, other issues raised by claimant in his 
 
         appeal brief need not be considered.
 
         
 
                                  FINDINGS OF FACT
 
         
 
         The findings of fact contained in the proposed agency decision 
 
         filed April 23, 1992 are adopted as set forth below.  Segments 
 
         designated by brackets ([ ]) indicate language that is in 
 
         addition to the language of the proposed agency decision.
 
         
 
              Michael Driscoll has been employed in the same location by 
 
         Metz Baking Company and predecessor employers since 1972.  For 
 
         approximately ten years prior to January 1990, he operated a 
 
         bread oven at the north end of the building.  He complains that 
 
         for the last two years he suffered symptoms of lightheadedness, 
 
         nausea, headaches and a "funny" taste in his mouth which he 
 
         attributes to fumes from the bread oven.  Since 1979, claimant 
 
         has suffered "bakers' asthma," which is controlled by medication.
 
         
 
              Claimant appeared at the Finley Hospital emergency room on 
 
         January 26, 1990, complaining of nausea and dizziness.  
 
         Laboratory testing showed a carbon monoxide level of 1.6 percent 
 
         in a reference range of 0-5 percent.  Other evidence indicates 
 
         that 1.5 percent is normal for a nonsmoker (as is claimant) while 
 

 
         
 
         Page   2 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         9 percent is normal for a smoker.  Theophylline level was at 19.2 
 
         in a reference of 10-20.  Contemporaneous notes of T. Gifford, 
 
         M.D., reflect an impression of:
 
         
 
              1.  Nausea, headache, palpations, etiology 
 
              undetermined.
 
         
 
              2.  High normal Theophylline level.
 
         
 
              3.  R/O industrial toxin exposure.
 
         "Rule out" or "R/O" is understood as meaning that a given 
 
         condition should be ruled out, not that it is ruled out.
 
         
 
              [The Peoples Natural Gas Company's field service reports 
 
         show that on January 26, 1990 a carbon monoxide check was made 
 
         which showed a slight reading above the large oven.  (Claimant's 
 
         Exhibit 6, page 2)  A recheck on the oven was done January 29, 
 
         1990 and there was carbon monoxide reading.
 
         
 
              Claimant was seen by various doctors several times between 
 
         January 13, 1990 and March 1990.  Claimant generally complained 
 
         of headache, nausea, vomiting, cough and dizziness as well as 
 
         cardiac problems.  On January 29, 1990 Dr. D. W. Jajtora, M.D., 
 
         wrote that the etiology was unclear and that it appeared 
 
         claimant's symptoms related to work although there was no obvious 
 
         factors to explain claimant's symptoms.  (Cl. Ex. 3, p. 37)  On 
 
         February 7, 1990 Thomas J. Hughes, M.D., noted that he doubted 
 
         that the persistent problem was related to claimant's working 
 
         environment.  (Cl. Ex. 3, p. 38)
 
         
 
              On March 7, 1990 Thomas M. Johnson, M.D., a cardiologist, 
 
         wrote that he did not have an opinion as to how any of claimant's 
 
         symptoms related his work conditions.  (Cl. Ex. 3, pp. 44-45)   
 
         On March 12, 1990, Thomas F. Garland, M.D., noted a normal workup 
 
         except for benign PVC's.  Dr. Garland wrote that claimant's 
 
         cardiac symptoms were not related to the work environment because 
 
         claimant had been off work for six to seven weeks.  (Cl. Ex. 3, 
 
         p. 45)
 
         
 
              Claimant was off work from January 6, 1990 through February 
 
         8, 1990 for multiple unexplained physical findings.  Dr. Hughes 
 
         took claimant off work from February 8, 1990 through February 27, 
 
         1990 for cardiac problems.  (Cl. Ex. 3, pp. 67-72)  Claimant 
 
         returned to work, had similar complaints and sought medical care.  
 
         The original notice and petition and the prehearing report 
 
         clearly indicate a January 1990 injury.  Any possible injury 
 
         after that date and treatment for a subsequent injury is not part 
 
         of this proceeding.
 
         
 
              In a letter dated June 18, 1990 Dr. Hughes wrote that "the 
 
         build up of carbon monoxide/carbon dioxide in the work  area 
 
         certainly did not reach toxic proportions and probably would not 
 
         cause symptoms in most individuals."  (Cl. Ex. 3, p. 96)  In that 
 
         letter Dr. Hughes discussed the possibility of the source of 
 
         claimant's problems.  He indicated that the greatest possibility 
 
         was a combination of a toxic level of carbon dioxide/carbon 
 
         monoxide gas and claimant's sensitivity to the environment based 
 

 
         
 
         Page   3 
 
         
 
         
 
         
 
         
 
         
 
         upon claimant's underlying disease and medications.  (Cl. Ex. 3, 
 
         p. 97)
 
         
 
              Claimant was evaluated by the University of Iowa Hospitals 
 
         on September 9, 1991.  Daniel Keyser, M.D., in the Department of 
 
         Neurology gave an impression that claimant was suffering from 
 
         migraine headaches, "many of which are odor induced."  (Cl. Ex. 
 
         5, p. 10)  Dr. Keyser noted that claimant had not missed work 
 
         with this headache as it was gone when work started the next day.  
 
         On February 16, 1992 Pope Moseley, M.D., in the Division of 
 
         Pulmonary Diseases, indicated that claimant's symptoms of 
 
         shakiness, weaknesses, nausea, cold sweats, palpitations and 
 
         occasional chest pain associated with the onset of the headaches 
 
         may be related to his migraine headaches or stress.  (Cl. Ex. 5, 
 
         p. 14)]
 
         
 
              Dr. Gifford requested claimant to decrease his dosage of the 
 
         drug Theodur in view of the relatedness of his symptom complex to 
 
         Theophylline toxicity, even though claimant reported he did not 
 
         experience ill feelings while not in the work environment.  Dr. 
 
         Gifford also charted that claimant's supervisor, one Robert 
 
         Briggs, confirmed that seven people in the department reported 
 
         noticing either a gas odor or burning of the eyes, but no one 
 
         else reported the same symptomatology as claimant.  Mr. Driscoll 
 
         was subsequently off work for some seven weeks.
 
         
 
              Claimant again visited the emergency room at Finley Hospital 
 
         on April 12, 1990.  This time, carbon monoxide levels measured 
 
         4.9 percent.
 
         
 
              Measurements of carbon monoxide and carbon dioxide in the 
 
         plant were made on April 6, 1990, by Patzig Testing Laboratories 
 
         Company, Inc.  Levels were well below permissible exposure limits 
 
         (PEL) established by OSHA.  [(Cl. Ex. 1)]  Testing in May by the 
 
         Iowa Division of Labor on this record apparently did not test for 
 
         carbon dioxide or monoxide.  [Cl. Ex. 2)]
 
         
 
              In addition to Dr. Gifford ("etiology undetermined"), two 
 
         other physicians have recorded comments as to etiology of 
 
         symptoms.  On January 31, 1990, Dennis Rajtora, M.D., wrote that 
 
         claimant did not have asthma or drug toxicity responsible for 
 
         symptoms, particularly carbon monoxide toxicity.  Claimant had a 
 
         normal blood count and normal liver enzymes.  Dr. Rajtora further 
 
         indicated that if he found no further abnormalities, claimant 
 
         should be evaluated by an industrial physician or by the 
 
         University of Iowa Toxicology Department.
 
         
 
              On March 14, 1990, Thomas J. Hughes, M.D., "clearly state[d] 
 
         that I do not see any evidence of any problem of Mr. Driscoll as 
 
         work related."  He considered the etiology of claimant's problems 
 
         as unknown and unlikely to be identified, but did not believe 
 
         that any current complaints were related to employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
         The conclusions of law contained in the proposed agency decision 
 
         filed April 23, 1992 are adopted as set forth below.  Segments 
 
         designated by asterisks (*****) indicate portions of the language 
 

 
         
 
         Page   4 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         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.
 
         
 
              [The first issue to be resolved is whether claimant's 
 
         exhibits should be excluded for failure to timely serve an 
 
         exhibit list.  Claimant served the list of exhibits less than 15 
 
         days prior to the hearing.  The case relied upon by the deputy in 
 
         excluding the exhibits (Sinclair v. Ellsworth Freight Lines, 
 
         Inc.) has been modified since the proposed decision by the 
 
         deputy.  The standard to be used is whether allowing the exhibits 
 
         would be prejudicial to the opposing party.  (Sinclair v. 
 
         Ellsworth Freight Lines, Inc., File no. 840779, Appeal Decision 
 
         July 29, 1993.)  There is an indication that defendants had the 
 
         exhibits prior to the hearing.  (Tr., p. 6)  It is not 
 
         prejudicial in this case to allow the exhibits.  There was no 
 
         surprise and no inundation of irrelevant evidence.  Claimant's 
 
         exhibits should be admitted and they have been considered.
 
         
 
              The second issue to be resolved is whether claimant's 
 
         witnesses should be excluded from testifying for failure to 
 
         timely serve a witness list.  The hearing assignment order in 
 
         this matter filed September 26, 1991 clearly stated that only 
 
         those witnesses listed on the witness list would be permitted to 
 
         testify and that the witness list was to be served no later than 
 
         fifteen (15) days prior to the date of the hearing.  Claimant 
 
         failed to comply with the hearing assignment order.  Claimant's 
 
         witnesses were properly excluded from testifying.
 
         
 
              The last issue to be resolved is whether claimant has proved 
 
         that he suffered an injury that arose out of and in the course of 
 
         his employment in January 1990.  The petition filed in this 
 
         matter alleges an injury date of January 21, 1990.  The 
 
         prehearing report refers to an injury date of January 26, 1990.  
 
         The January 26, 1990 date will be used as the alleged injury date 
 
         as that is the date the parties clearly used for purposes of this 
 
         litigation.  Events and evidence for possible injuries after that 
 
         date have not been pled and are not part of this litigation.]
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury [on January 26, 1993] which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
         
 
              The words "arising out of" refer to the course or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).  
 
         This requirement is satisfied by showing a causal relationship 
 
         between the employment and the injury.  Sheerin v. Holin Co., 380 
 
         N.W.2d 415 (Iowa 1986).
 
         
 
              He also has the burden of proving by a preponderance of the 
 
         evidence that any alleged injury is causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 

 
         
 
         Page   5 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         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 Hosp., 251 Iowa 
 
         375, 101 N.W.2d 167 (1960). 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              *****
 
         
 
              [When claimant sought treatment for the alleged January 26, 
 
         1990 injury tests performed indicated he had a carbon monoxide 
 
         level of 1.6 which is within a normal range and is very near the 
 
         normal level of 1.5.  Tests conducted at the work site by Peoples 
 
         Natural Gas Company on January 26, 1990 showed only a slight 
 
         reading of carbon monoxide.  Drs. Gifford, Rajtora and Hughes 
 
         could not relate claimant's symptoms to his alleged work injury 
 
         on January 26, 1990.  Dr. Hughes later assessment of a variety of 
 
         possible causes of claimant's symptoms does not rise to the 
 
         necessary level of proving the probable cause of claimant's 
 
         symptoms.  The opinions of these and other doctors that symptoms 
 
         claimant suffered at later times were related to work do not 
 
         relate the work exposure on January 26, 1990 to claimant's later 
 
         symptoms.  The issue of whether claimant may have suffered an 
 
         injury on a later date is not properly an issue in the instant 
 
         proceedings.
 
         
 
              Claimant has clearly not met his burden of proving that he 
 
         suffered an injury on January 26, 1990.  Claimant therefore shall 
 
         take nothing from these proceedings.]
 
         WHEREFORE, the decision of the deputy is affirmed in part and 
 
         reversed in part.
 
         
 
                                       ORDER
 
         
 
         THEREFORE, it is ordered:
 
         
 
         That claimant shall take nothing from these proceedings.
 
         
 
         That claimant shall pay the costs of the appeal including the 
 
         transcription of the hearing.  Defendants shall pay all other 
 
         costs.
 
         
 
         Signed and filed this ____ day of August, 1993.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   6 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         1141 Main Street
 
         Dubuque, Iowa  52001
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1401.20; 2906
 
                                              Filed August 23, 1993
 
                                              Byron K. Orton
 
           
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            MICHAEL DRISCOLL,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 944659
 
            METZ BAKING COMPANY,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            SENTRY INSURANCE,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            1402.30
 
            Claimant failed to prove his symptoms were caused by toxic 
 
            exposure to fumes on the alleged injury date.  Tests 
 
            performed on claimant on the alleged injury date showed a 
 
            near normal level of carbon monoxide.  A test in the 
 
            workplace indicated only a slight level of carbon monoxide.  
 
            None of several doctors related claimant's symptoms to a 
 
            work incident on the date alleged.
 
            
 
            2906
 
            Under Sinclair v. Ellsworth Freight Lines, file no. 840779, 
 
            Appeal Decision July 29, 1993, claimant's exhibits were 
 
            allowed as evidence despite the failure to file a timely 
 
            exhibit list.  Defendants had been served the exhibits.  
 
            There was no surprise and no inundation of irrelevant 
 
            evidence.  Claimant was permitted to testify personally, and 
 
            rebuttal evidence was taken from another witness, even 
 
            though service of a witness list was also untimely.  Other 
 
            witnesses were excluded from testifying because claimant 
 
            failed to follow the hearing assignment order and timely 
 
            serve a witness list.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL DRISCOLL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 944659
 
                                          :
 
            METZ BAKING COMPANY,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Michael Driscoll seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against employer Metz Baking Company and its insurance 
 
            carrier, Sentry Insurance.  He asserts that he sustained an 
 
            industrial injury through inhalation of carbon monoxide or 
 
            other toxic gases and now alleges an injury date of January 
 
            26, 1990 (his petition alleged January 21).
 
            
 
                 This cause came on for hearing in Dubuque, Iowa, on 
 
            March 12, 1992.  Claimant's exhibits 1 through 6 were 
 
            offered into evidence, but excluded upon objection for 
 
            failure to timely serve witness and exhibit lists as 
 
            required by the hearing assignment order filed on September 
 
            26, 1991.  See Sinclair v. Ellsworth Freight Lines, File No. 
 
            840779 (App. Decn., January 31, 1992).  Claimant's exhibits 
 
            7 and 8 were received, as were defendants' exhibits A, B and 
 
            C.  Claimant, William Kehl and Carl Kent testified at 
 
            hearing, Mr. Kent as a rebuttal witness.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship at the time of the alleged injury 
 
            and to the appropriate rate of compensation.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on January 26, 1990;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the claimed injury and temporary or permanent disability;
 
            
 
                 3.  The extent of temporary and/or permanent 
 
            disability;
 
            
 
                 4.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27; and,
 
            
 
                 5.  To what extent defendants are entitled to credit 
 
            for sick pay or disability income under Iowa Code section 
 
            85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Michael Driscoll has been employed in the same location 
 
            by Metz Baking Company and predecessor employers since 1972.  
 
            For approximately ten years prior to January 1990, he 
 
            operated a bread oven at the north end of the building.  He 
 
            complains that for the last two years he suffered symptoms 
 
            of lightheadedness, nausea, headaches and a "funny" taste in 
 
            his mouth which he attributes to fumes from the bread oven.  
 
            Since 1979, claimant has suffered "bakers' asthma," which is 
 
            controlled by medication.
 
            
 
                 Claimant appeared at the Finley Hospital emergency room 
 
            on January 26, 1990, complaining of nausea and dizziness.  
 
            Laboratory testing showed a carbon monoxide level of 1.6 
 
            percent in a reference range of 0-5 percent.  Other evidence 
 
            indicates that 1.5 percent is normal for a nonsmoker (as is 
 
            claimant) while 9 percent is normal for a smoker.  
 
            Theophylline level was at 19.2 in a reference of 10-20.  
 
            Contemporaneous notes of T. Gifford, M.D., reflect an 
 
            impression of:
 
            
 
                 1.  Nausea, headache, palpations, etiology 
 
                 undetermined.
 
            
 
                 2.  High normal Theophylline level.
 
            
 
                 3.  R/O industrial toxin exposure.
 
            "Rule out" or "R/O" is understood as meaning that a given 
 
            condition should be ruled out, not that it is ruled out.
 
            
 
                 Dr. Gifford requested claimant to decrease his dosage 
 
            of the drug Theodur in view of the relatedness of his 
 
            symptom complex to Theophylline toxicity, even though 
 
            claimant reported he did not experience ill feelings while 
 
            not in the work environment.  Dr. Gifford also charted that 
 
            claimant's supervisor, one Robert Briggs, confirmed that 
 
            seven people in the department reported noticing either a 
 
            gas odor or burning of the eyes, but no one else reported 
 
            the same symptomatology as claimant.  Mr. Driscoll was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            subsequently off work for some seven weeks.
 
            
 
                 Claimant again visited the emergency room at Finley 
 
            Hospital on April 12, 1990.  This time, carbon monoxide 
 
            levels measured 4.9 percent.
 
            
 
                 Measurements of carbon monoxide and carbon dioxide in 
 
            the plant were made on April 6, 1990, by Patzig Testing 
 
            Laboratories Company, Inc.  Levels were well below 
 
            permissible exposure limits (PEL) established by OSHA.  
 
            Testing in May by the Iowa Division of Labor on this record 
 
            apparently did not test for carbon dioxide or monoxide.
 
            
 
                 In addition to Dr. Gifford ("etiology undetermined"), 
 
            two other physicians have recorded comments as to etiology 
 
            of symptoms.  On January 31, 1990, Dennis Rajtora, M.D., 
 
            wrote that claimant did not have asthma or drug toxicity 
 
            responsible for symptoms, particularly carbon monoxide 
 
            toxicity.  Claimant had a normal blood count and normal 
 
            liver enzymes.  Dr. Rajtora further indicated that if he 
 
            found no further abnormalities, claimant should be evaluated 
 
            by an industrial physician or by the University of Iowa 
 
            Toxicology Department.
 
            
 
                 On March 14, 1990, Thomas J. Hughes, M.D., "clearly 
 
            state[d] that I do not see any evidence of any problem of 
 
            Mr. Driscoll as work related."  He considered the etiology 
 
            of claimant's problems as unknown and unlikely to be 
 
            identified, but did not believe that any current complaints 
 
            were related to employment.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury which arose out 
 
            of and in the course of his employment. McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. 
 
            Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The words "arising out of" refer to the course or 
 
            source of the injury.  McClure v. Union County, 188 N.W.2d 
 
            283 (Iowa 1971).  This requirement is satisfied by showing a 
 
            causal relationship between the employment and the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
            
 
                 He also has the burden of proving by a preponderance of 
 
            the evidence that any alleged injury is causally related to 
 
            the disability on which he now bases his claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hosp., 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 If claimant had fallen off a ladder and broken his arm 
 
            upon landing, expert testimony might arguably be less 
 
            essential in relating the employment relationship to 
 
            disability.  Cases of alleged toxic exposure are more 
 
            complex.  Expert testimony is much more significant, since 
 
            symptoms such as dizziness and nausea may stem from numerous 
 
            causes, not all of which are work related.  On the record 
 
            presented, there is no medical opinion causally relating 
 
            claimant's symptoms to any toxic exposure.  Dr. Gifford 
 
            finds that etiology is undetermined.  Dr. Rajtora finds no 
 
            drug toxicity responsible for symptoms.  Dr. Hughes does not 
 
            believe that any of claimant's medical complaints are 
 
            related to employment.
 
            
 
                 It must then be concluded that claimant has failed to 
 
            meet his burden of proof on the "arising out of employment" 
 
            issue.  Defendants accordingly prevail.
 
            
 
                 Other issues are thereby rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David A. Lemanski
 
            Attorney at Law
 
            1141 Main Street
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.40; 1402.30; 2906
 
                                               Filed April 23, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL DRISCOLL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 944659
 
                                          :
 
            METZ BAKING COMPANY,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.40; 1402.30; 2906
 
            Under Sinclair v. Ellsworth Freight Lines, claimant's 
 
            exhibits were excluded for failure to file an exhibit list.  
 
            Claimant was permitted to testify personally, and rebuttal 
 
            evidence was taken from another witness, even though service 
 
            of a witness list was also untimely.
 
            On the record made, claimant failed to prove his symptoms 
 
            were caused by toxic exposure to fumes.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAURREL LEE CLINE,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 945159
 
            MACKAY ENVELOPE CORPORATION,  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LUMBERMAN'S UNDERWRITING      :
 
            ALLIANCE,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Laurrel 
 
            Lee Cline, claimant, against MacKay Envelope Corporation, 
 
            employer, and Lumberman's Underwriting Alliance, insurance 
 
            carrier, to recover benefits under the Iowa Worker's 
 
            Compensation Act as a result of an injury sustained on 
 
            January 22, 1990.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on April 16, 
 
            1992.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying at the hearing was 
 
            Margie Cline, Barbara Laughlin and Ron Clouse.  The 
 
            documentary evidence identified in the record consists of 
 
            joint exhibits 1-22 and defendants' exhibits A-D.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated April 
 
            16, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant's injury on January 22, 1990 
 
            resulted in permanent disability, and
 
            
 
                 2.  Whether defendants are entitled to apportionment 
 
            and/or credit for benefits paid in a prior work-related 
 
            injury with employer.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence contained in the exhibits, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on March 16, 1939 and completed the 
 
            ninth grade of school.  He obtained his GED certificate in 
 
            1991.  Claimant's work history consists primarily of manual 
 
            labor.  He owned and operated a service station from 1974 to 
 
            1981 and a small engine repair shop from 1981 to 1982.  On 
 
            November 19, 1981, he commenced employment with MacKay 
 
            Envelope Corporation.  He started as a machine adjuster at 
 
            approximately $4.00 an hour.  He transferred to Warehouse 
 
            and Shipping and as of March 2, 1990, he was earning $9.01 
 
            an hour.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was seen by Webster B. Gelman, M.D., at the 
 
            Steindler Orthopedic Clinic in Iowa City, Iowa on July 5, 
 
            1984, with complaints of severe low back pain and right leg 
 
            pain.  This was subsequently diagnosed as a herniated disc 
 
            at L4-5, on the right.  On July 6, 1984, Dr. Gelman 
 
            performed a laminectomy and removal of herniated 
 
            intervertebral discs.  Dr. Gelman released claimant for 
 
            light duty in November 1984.  He assessed a 15 percent 
 
            permanent partial disability due to loss of disc and some 
 
            residual muscle weakness.  (Exhibit 3, pages 42-46).
 
            
 
                 Dr. Gelman retired and claimant's care was assumed by 
 
            William R. Pontarelli, M.D.  
 
            
 
                 Despite surgery, claimant continued to have leg pain 
 
            and a feeling of weakness in his right foot.  On September 
 
            17, 1985, Dr. Pontarelli placed claimant on permanent light 
 
            duty work with restrictions including no repetitive bending, 
 
            stooping or lifting.  He was advised to work in a position 
 
            where he could alternate between sitting and standing and to 
 
            lift no more than 25 pounds.  (Ex. 3, p. 36).
 
            
 
                 Claimant and employer entered into an agreement for 
 
            settlement on May 16, 1984 that his injury arose out of and 
 
            in the course of employment with employer and as a result of 
 
            said injury sustained 25 percent permanent partial 
 
            disability.  (File number 766450).
 
            
 
                 In the last six months of 1987, claimant began 
 
            experiencing steadily increasing episodic low back pain 
 
            which he attributed to his work activity.  Dr. Pontarelli 
 
            administered a trigger injection to his back on February 5, 
 
            1988 and advised him to reinstitute his exercise program.  
 
            (Ex. 3, p. 35).
 
            
 
                 On August 9, 1988, claimant presented to Dr. Pontarelli 
 
            with severe back and leg pain which he attributed to a fall 
 
            at home one week prior.  A CT examination was performed on 
 
            August 23, 1988, which revealed some scarring at L4-5 but no 
 
            recurrent herniated discs.  Claimant was released to return 
 
            to work on September 16, 1988 under his previous 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            restrictions.  (Ex. 3, pp. 33-35).
 
            
 
                 Claimant required no additional medical until February 
 
            26, 1990, when he saw Steven M. Readinger, M.D., with 
 
            complaints of low back pain which occurred after falling on 
 
            his back at work on January 22, 1990.  On examination, Dr. 
 
            Readinger noted very limited flexion and extension.  Pending 
 
            further examination by Dr. Pontarelli, claimant was limited 
 
            to lifting no more than five pounds.  (Ex. 4).
 
            
 
                 Claimant saw Dr. Pontarelli on April 5, 1990.  X-rays 
 
            revealed complete degeneration of the L4-5 and L5-S1 disc 
 
            with no instability.  A MRI scan was obtained on April 23, 
 
            1990.  Dr. Pontarelli reported ..."it doesn't appear that he 
 
            has a problem at L5-S1, other than degenerative disc disease 
 
            or at L4-5.  The degenerative disc at L4-5 seems to be 
 
            complicated by a protrusion, but on the actual scan there 
 
            doesn't appear any displacement of neural elements.  His 
 
            L3-4 disc appears clean."  Dr. Pontarelli indicated that 
 
            claimant probably suffered an aggravation of the L4-5 and 
 
            L5-S1 condition.  He felt additional surgery was unwarranted 
 
            and referred him to a supervised physical therapy program 
 
            leading to work hardening.  He recommended claimant remain 
 
            off work until further evaluation.  (Ex. 3, pp. 30-31).
 
            
 
                 Claimant participated in a physical therapy program at 
 
            Mercy Hospital in Iowa City, Iowa from May 1, 1990 through 
 
            June 29, 1990.  (Ex. 6).  On July 2, 1990, Dr. Pontarelli 
 
            indicated that claimant needed additional treatment and he 
 
            referred him to the University of Iowa Low Back 
 
            Rehabilitation Program.  (Ex. 3, pp. 26-27).
 
            
 
                 Claimant was then referred by insurance carrier to 
 
            William R. Boulden, M.D., orthopedist, for evaluation and 
 
            second opinion on August 1, 1990.  After conducting a 
 
            physical examination and reviewing x-rays and MRI scan, Dr. 
 
            Boulden's impression was, "Status post discectomy L4/5 with 
 
            residual severe degenerative disc disease L4/5, L5/S1."  He 
 
            felt that claimant was suffering from chronic pain syndrome 
 
            and he recommended physical therapy with simultaneous pain 
 
            management.  (Ex. 1, pp. 1-4).
 
            
 
                 Claimant underwent a comprehensive multi-disciplinary 
 
            evaluation at the Spine Diagnostic and Treatment Center, 
 
            University of Iowa Hospitals and Clinics in Iowa City, Iowa 
 
            on September 26, 1990.  On October 8, 1990, a report was 
 
            issued by James N. Weinstein, M.D., and Ted Wernimont, 
 
            M.S.W., which concluded that claimant had reached maximum 
 
            medical healing at this time.  He was given a 12 percent 
 
            body as a whole impairment rating and currently restricted 
 
            to lifting 15 pounds, no more than four times per hour and 8 
 
            pounds repetitively.  He was advised that these restrictions 
 
            were temporary and capable of improving with an aggressive 
 
            rehabilitation program.  He was advised to begin an exercise 
 
            and aerobic training program and to contact the Division of 
 
            Vocational Rehabilitation in his area.  He was assured that 
 
            his back situation was totally solid, stable and healed but 
 
            acknowledged that he was experiencing chronic pain.  (Ex. 7, 
 
            pp. 69-72).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant returned to the Department of Orthopaedics at 
 
            the Spine Diagnostic and Treatment Center on November 8, 
 
            1990 for three coping skills and support group sessions.  
 
            After an interview with Mr. Wernimont, it was recommended 
 
            that the insurance carrier secure a professional 
 
            rehabilitation consultant to work with claimant.  It was 
 
            felt that claimant had too many fears and financial concerns 
 
            to make progress in their rehabilitation program.  (Ex. 7, 
 
            pp. 66-68).
 
            
 
                 Claimant's attorney referred him to G. Brian Paprocki, 
 
            vocational consultant, for evaluation.  Mr. Paprocki 
 
            interviewed claimant on December 5, 1990 and March 3, 1991.  
 
            He submitted a report dated March 4, 1991, in which he 
 
            opined that based on claimant's age, education, past work 
 
            experience and medical restrictions, he is precluded from 
 
            performing any of his past relevant work.  He concluded that 
 
            claimant's occupational prospects are limited to unskilled 
 
            work activity such as security guard, production assembler, 
 
            hand/machine packager, cashier and salesperson.  (Ex. 2).
 
            
 
                 Insurance carrier referred claimant to Barbara Laughlin 
 
            for a vocational assessment on June 10, 1991.  After an 
 
            initial interview, Mrs. Laughlin contacted employer and the 
 
            Spine Clinic for input in making a final vocational 
 
            assessment.  (Ex. 5).
 
            
 
                 On June 14, 1991, Mrs. Laughlin met with Ron Clause, 
 
            plant manager at MacKay Envelope.  She toured the plant and 
 
            was shown specific jobs that they felt claimant could 
 
            perform.  On June 17, 1991, she wrote to Dr. Weinstein 
 
            requesting his opinion as to whether claimant would be able 
 
            to perform the specific duties of a forklift driver and box 
 
            assembler.  (Ex. 21 & 25).  Dr. Weinstein responded on July 
 
            24, 1991 and indicated that based on a September 19, 1990 
 
            functional capacity evaluation, claimant's repetitive 
 
            lifting limit remains at 8 pounds and his one time lifting 
 
            ability at 15 pounds.  After consulting the physical 
 
            therapist, Dr. Weinstein indicated that claimant should be 
 
            able to perform work as a box assembler and possibly 
 
            forklift driver.  (Ex. 22).
 
            
 
                 Claimant returned to work with employer as a box 
 
            assembler on September 15, 1991.  Claimant testified that he 
 
            was placed on the night shift from 11:30 p.m. to 7:30 a.m.  
 
            He was paid $9.26 per hour making boxes in the warehouse.  
 
            He testified that he continued to have spasms and pain 
 
            radiating into his buttocks, legs and balls of his feet.  He 
 
            stated that this job required frequent bending which 
 
            exacerbated his symptoms.  Without personally notifying his 
 
            supervisor or the plant manager, claimant voluntarily quit 
 
            his employment on January 15, 1992.  He testified that the 
 
            job exceeded his physical restrictions.  This was denied by 
 
            the plant manager.
 
            
 
                 On February 10, 1992, Dr. Pontarelli reported to 
 
            claimant's attorney that after examining claimant and 
 
            performing further diagnostic studies, Mr. Cline's 
 
            capabilities and functional impairment has not changed.  It 
 
            was his opinion that claimant does not require future 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            therapy or treatment, other than medication, and his 
 
            greatest need is vocational rehabilitation counseling.  (Ex. 
 
            3, p. 24).
 
            
 
                 On March 26, 1992, Dr. Pontarelli reported, that, in 
 
            his opinion, claimant is totally disabled from performing 
 
            his prior work activity but not other work.  (Ex. 3, p. 
 
            46B).
 
            
 
                                conclusions of law
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of January 22, 1990, 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 if 
 
            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 record in this case clearly demonstrates that on 
 
            January 22, 1990, claimant suffered an exacerbation of his 
 
            preexisting back condition due to a work-related injury with 
 
            employer.  Prior to this injury, claimant sustained a back 
 
            injury with this employer on May 14, 1984.  Surgical 
 
            intervention was required and permanent restrictions of no 
 
            repetitive bending, stooping or lifting and lifting over 25 
 
            pounds were imposed.  (Ex. 3, p. 36).  As a result of the 
 
            second back injury, claimant's lifting limits were reduced 
 
            to 15 pounds, no more than four times per hour and 
 
            repetitive lifting of approximately 8 pounds.  (Ex. 7, p. 
 
            70).
 
            
 
                 Claimant's limitations and restrictions result from 
 
            chronic low back pain.  Dr. Weinstein reported in October 
 
            1990, "We certainly realize at this time that you are having 
 
            significant low back pain and that the pain is very 
 
            real....there certainly are findings to indicate reasons for 
 
            low back discomfort, but at this time, there is absolutely 
 
            no surgical procedure which could be of any benefit, and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            what we have found to be most helpful for people in your 
 
            situation, is a good aggressive, positive exercise and 
 
            aerobic program."  (Ex. 7, pp. 69-70).
 
            
 
                 Dr. Weinstein's October 8, 1990 report states, in 
 
            pertinent part:
 
            
 
                 For worker's compensation purposes, we feel that 
 
                 you indeed exacerbated a preexisting back 
 
                 condition in the work-related fall in January of 
 
                 1990.  We do feel that you have reached maximum 
 
                 medical healing at this time and that the body as 
 
                 a whole impairment rating for this low back injury 
 
                 is 12%.
 
            
 
            (Ex. 7, p. 71).
 
            
 
                 In regard to the 12 percent impairment rating, Dr. 
 
            Weinstein explained on February 7, 1991 that approximately 
 
            eight percent-ten percent is related to claimant's prior 
 
            surgery.  (Ex. 7, p. 60).
 
            
 
                 The greater weight of the evidence supports claimant's 
 
            contentions that he has a permanent impairment as a result 
 
            of the January 22, 1990 injury.  Defendants have presented 
 
            no medical evidence to the contrary.  Therefore, claimant 
 
            has met his burden of proof that the disability on which he 
 
            now bases his claim is causally connected to his injury with 
 
            employer.
 
            
 
                 Claimant also contends that he is totally disabled and 
 
            entitled to be considered an odd-lot employee.  
 
            
 
                 In examining the odd-lot question, there are two cases 
 
            that offer guidance.  In Guyton v. Irving Jensen Co., 373 
 
            N.W.2d 101, 105 (Iowa 1985) the Supreme Court adopted the 
 
            odd-lot doctrine.  Under this doctrine, the Court found that 
 
            a worker becomes an odd-lot employee when an injury makes 
 
            the worker incapable of obtaining employment in any 
 
            well-known branch of the labor market.  An odd-lot worker is 
 
            thus totally disabled if the only services the worker can 
 
            perform are so limited in quality, dependability, or 
 
            quantity that a reasonably stable market for them does not 
 
            exist.  In Hainey v. Protein Blender, 445 N.W.2d 398, 400 
 
            (Iowa App. 1989), the Court of Appeals provided some 
 
            explanation of the Guyton decision.  Among other things, the 
 
            court concluded that if a person has no reasonable prospect 
 
            of steady employment, that individual has no prospect of 
 
            material earning capacity.  Additionally, this standard 
 
            contemplates that the injured worker will take some 
 
            affirmative action to either find employment or take other 
 
            steps to improve the prospects for reemployment.  If the 
 
            injured worker remains unemployable even after this effort, 
 
            then an odd lot designation can be made.  Guyton, 373 N.W.2d 
 
            at 105, Hainey, 445 N.W.2d at 400.
 
            
 
                 Ultimately, the application of the odd-lot doctrine 
 
            involves an allocation of the burden of production of 
 
            evidence.  The Supreme Court found that the burden of 
 
            persuasion on the issue of industrial disability always 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            remains with the worker.  If the evidence of the degree of 
 
            obvious physical impairment coupled with other factors such 
 
            as claimant's mental capacity, education, training or age 
 
            place claimant prima facie in the odd-lot category, the 
 
            burden should be on the employer to show that some kind of 
 
            suitable work is regularly and continuously available to the 
 
            claimant.  Guyton, 373 N.W.2d at 105; Hainey, 445 N.W.2d at 
 
            400.
 
            
 
                 Claimant has not met his burden of proof.  No doctor 
 
            who has treated and/or examined has indicated that he is 
 
            permanently and totally disabled and unable to perform any 
 
            work-related activity.  Dr. Pontarelli indicated that 
 
            claimant could not perform his past work activity but did 
 
            not rule out other work which would allow him to alternate 
 
            between sitting and standing in order to achieve maximum 
 
            comfort and which required no repetitive lifting, bending 
 
            and stooping.  Claimant has not cooperated with defendants' 
 
            offer of vocational rehabilitation and his job search has 
 
            been half-hearted at best.  He testified that he applied for 
 
            a security guard position one month prior to the hearing.  
 
            He appears unmotivated to return to work.
 
            
 
                 Claimant testified that he walks two miles every 
 
            evening and attends toy auctions whenever possible.  While 
 
            claimant has significant physical restrictions, claimant has 
 
            done nothing to rehabilitate himself in order to return to 
 
            the competitive job market.  The multi-disciplinary team in 
 
            Iowa City indicated that he is 100 percent rehabilitatable 
 
            with proper utilization of resources and a strong effort on 
 
            his part.  They felt that full-time gainful employment is 
 
            absolutely attainable.  (Ex. 7, p. 71).  Claimant has made 
 
            little effort in this regard and has failed to prove that he 
 
            is unemployable in the competitive labor market.  Therefore, 
 
            his request for odd-lot status is denied.
 
            
 
                 Although claimant is not an odd-lot employee, he does 
 
            have a permanent partial disability.  Therefore, the next 
 
            issue to be determined is the extent of claimant's 
 
            disability.
 
            
 
                 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 his restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Store, 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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 is 53 years old.  His peak earning years of 
 
            employment are behind him.  Therefore, his industrial 
 
            disability is less serious than it would be for a worker who 
 
            is in the peak earning years of employment.  Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision 1979); Walton v. 
 
            B & H Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision 1989).
 
            
 
                 Claimant completed the ninth grade of school and 
 
            dropped out at age 16 due to lack of interest.  He obtained 
 
            a GED certificate in 1991.  He took some drafting courses in 
 
            the 1950's.  His past work experience has been as a heavy 
 
            equipment operator and truck driver while in the National 
 
            Guard and Army Reserve; farm laborer and automobile service 
 
            station attendant involving light vehicle maintenance; 
 
            foundry laborer; brake press operator; machine set-up man in 
 
            cardboard box factory; owner-operator of automobile service 
 
            station and wheelhorse tractor dealership; machine adjuster; 
 
            forklift operator; and box maker.  Most of these jobs 
 
            involved heavy strenuous labor and knowledge of equipment 
 
            and machinery.  His back impairment and restrictions 
 
            preclude him from performing most of his past work activity.
 
            
 
                 Employer returned claimant to work activity on 
 
            September 15, 1991.  Claimant was assigned to work as a box 
 
            assembler wherein his restrictions were accommodated.  
 
            Claimant terminated his employment with employer on January 
 
            15, 1992, allegedly due to severe and intractable back pain 
 
            exacerbated by his work activity.  Claimant provided no 
 
            medical evidence to support his contentions.  No physician 
 
            took claimant off work or stated that he was unable to 
 
            perform the work offered him by employer.  In fact, Dr. 
 
            Weinstein indicated otherwise.  As previously noted, 
 
            claimant refused to participate in any vocational 
 
            rehabilitation program offered by employer.  Claimant 
 
            voluntarily quit his job without notice to employer or 
 
            attempting to negotiate changes in the way he was expected 
 
            to perform his job.
 
            
 
                 Defendant made great efforts to accommodate claimant's 
 
            needs and should not be penalized for claimant's refusal to 
 
            accept the offered work.  If employers are to be held 
 
            accountable for their failure to accommodate an employee 
 
            after an injury, they should not be held unduly liable when 
 
            acceptable attempts at rehabilitation and reemployment are 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            arbitrarily rejected.  Claimant's loss of earning capacity 
 
            or industrial disability is therefore diminished 
 
            accordingly.  Cf. McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
            181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348 (Iowa 1980).
 
            
 
                 Claimant's injury has resulted in a loss of earning 
 
            capacity.  His refusal to return to work or look for 
 
            alternate employment has resulted in loss of earnings.  
 
            However, while employers are responsible for the reduction 
 
            of earning capacity caused by the injury, they are not 
 
            responsible for loss of actual earnings because the employee 
 
            resists or refuses to return to work.  Williams v. Firestone 
 
            Tire and Rubber Co., III Iowa Industrial Commissioner Report 
 
            279 (1982)
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            50 percent industrial disability.  Since claimant's second 
 
            injury aggravated a preexisting back condition for which he 
 
            was previously paid 125 weeks of permanent partial 
 
            disability benefits, employer is entitled to a credit of 125 
 
            weeks and is currently liable for 125 weeks of permanent 
 
            partial disability benefits due to aggravation of a 
 
            preexisting back condition for the second injury.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay the claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at the 
 
            rate of two hundred twenty-two and 33/100 dollars ($222.33) 
 
            per week commencing October 8, 1990.
 
            
 
                 That defendants receive credit for workers' 
 
            compensation benefits previously paid.
 
            
 
                 That defendants receive credit for one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits previously paid pursuant to an injury incurred by 
 
            claimant on May 14, 1984.
 
            
 
                 That defendants pay all costs 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 the agency.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Steven J Crowley
 
            Attorney at Law
 
            100 Valley Street
 
            PO Box 517
 
            Burlington Iowa 52601
 
            
 
            Mr Michael R Hoffmann
 
            Attorney at Law
 
            Breakwater Building
 
            3708 75th Street
 
            Des Moines Iowa 50322
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 5-1702
 
                                          JEAN M.INGRASSIA
 
                                          Filed April 24, 1992
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAURREL LEE CLINE,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 945159
 
            MACKAY ENVELOPE CORPORATION,  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LUMBERMAN'S UNDERWRITING      :
 
            ALLIANCE,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant incurred a back injury on May 14, 1984.  He 
 
            underwent surgery in July 1984 and was released to return to 
 
            work in November 1984.  He was given restrictions regarding 
 
            repetitive bending, stooping and lifting.  He was advised 
 
            not to lift more than 25 pounds at a time.  Claimant entered 
 
            into a stipulated agreement with employer where it was 
 
            acknowledged that he sustained a 25 percent permanent 
 
            partial disability.
 
            On January 22, 1990, claimant re-injured his back in a 
 
            work-related incident.  Defendants admitted liability but 
 
            disputed the extent of disability.  Based on all the factors 
 
            of industrial disability, it was determined that claimant 
 
            was 50 percent industrially disabled.
 
            
 
            5-1702
 
            Defendants were given a credit for 125 weeks of benefits 
 
            previously paid to claimant as a result of his May 14, 1984 
 
            injury.
 
            Defendants were given credit for workers' compensation 
 
            benefits previously paid as a result of the January 22, 1990 
 
            injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            RICHARD ALLSUP,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 945395
 
            ATLAS FOUNDATION,             :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Allsup, claimant, against Atlas Foundation, employer, and 
 
            Wausau Insurance Companies, insurance carrier, defendants, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on March 1, 1990.  On November 1, 1992 a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On March 1, 1990 claimant received an injury aris
 
            ing out of and in the course of employment with Atlas.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            or healing period benefits in this proceeding at this time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                  I.  Whether or not benefits are suspended due to a 
 
            refusal to submit to a medical examination requested by 
 
            defendants; and,
 
            
 
                 II.  The extent of claimant's entitlement to permanent 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant is 50 years of age with a seventh or eighth 
 
            grade education.  Claimant could not recall if he completed 
 
            eighth grade.  At the time of injury, claimant was a union 
 
            millwright and carpenter.  The injury occurred when claimant 
 
            received a severe electrical shock when a boom from a truck 
 
            on which he was riding made contact with a high voltage 
 
            power line.  Claimant sustained burn injuries in the foot 
 
            and leg and claims injuries to his hip and low back.  He 
 
            also claims a psychological injury in the form of a post 
 
            traumatic stress disorder as a result of his electrocution.
 
            
 
                 On or about May 4, 1992, during the pendancy of this 
 
            proceeding, defendants requested that claimant travel to 
 
            Neenah, Wisconsin for evaluation by physicians at the 
 
            Industrial Injury Clinic.  According to the evidence, this 
 
            clinic performs evaluations of industrial injuries in a 
 
            multi-disciplinary manner with a large team of physicians.  
 
            Claimant refused.  Evaluations at this Neenah facility take 
 
            place over a consecutive three day period of time.  Claimant 
 
            would have to travel approximately 100 miles to attend such 
 
            an evaluation.  A clinical psychologist who has evaluated 
 
            claimant, Thomas Sannito, Ph.D., opines that there is ade
 
            quate psychological professionals in Iowa to evaluate 
 
            claimant and that it would be harmful and deleterious to his 
 
            psychological state to stay over night for a three day exam
 
            ination.
 
            
 
                 A psychiatrist and a psychologist at the Industrial 
 
            Injury Clinic disagree with Dr. Sannito.  Evidence was sub
 
            mitted showing that claimant has traveled in excess of that 
 
            distance in the last two years to go deer hunting.
 
            
 
                 Claimant has failed to show that defendants' request 
 
            for evaluation is unreasonable or that it would be harmful 
 
            to claimant.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Iowa Code section 85.39 states in part as follows:
 
            
 
                 After an injury, the employee, if requested by the 
 
            employer, shall submit for examination at some reasonable 
 
            time and place and as often as reasonably requested, to a 
 
            physician or physicians authorized to practice under the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            laws of this state or another state,...The refusal of the 
 
            employee to submit to the examination shall suspend the 
 
            employee's right to any compensation for the period of the 
 
            refusal.  Compensation shall not be payable for the period 
 
            of suspension.
 
            
 
                 In the case sub judice, claimant refused a reasonable 
 
            examination.  The statutory language in section 85.39 
 
            clearly contemplates examinations out of the borders of this 
 
            state.  Claimant failed to show that his refusal is reason
 
            able.  Claimant's entitlement to benefits must be suspended.
 
            
 
                 As benefits cannot be paid during suspension, the issue 
 
            of entitlement to further benefits is not a justifiable 
 
            issue.  Furthermore, defendants have been denied full dis
 
            covery and it would be unfair to proceed to decide on com
 
            pensation benefits without an evaluation they requested.
 
            
 
                 Consequently, further proceedings are suspended indefi
 
            nitely until such time as claimant submits to independent 
 
            evaluation.  In the interest of justice, claimant's claim 
 
            herein should not be dismissed immediately.  Claimant shall 
 
            be given time within which to submit to examination.
 
            
 
                 Defendants shall be awarded costs.
 
            
 
                                      ORDER
 
            
 
                 1.  Claimant's entitlement to workers' compensation 
 
            benefits, if any, is hereby suspended from May 4, 1992 until 
 
            such time as he submits to evaluation at the Industrial 
 
            Injury Clinic in Neenah, Wisconsin.
 
            
 
                 2.  After a period of 90 days following the date of 
 
            this order, defendants may move for dismissal of claimant's 
 
            petition with prejudice if claimant continues to refuse to 
 
            submit to examination as requested or the parties may 
 
            jointly request a scheduling of a hearing on remaining 
 
            issues from the hearing administrator.
 
            
 
                 3.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Jeffrey P. Berg
 
            Attorney at Law
 
            300 American Building
 
            101 Second Street SE
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Craig A. Levien
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                               2502
 
                                               Filed October 14, 1992
 
                                               LARRY P. WALSHIRE
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD ALLSUP,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 945395
 
            ATLAS FOUNDATION,   
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2502 - Refusal to Submit for Employer Requested Examination
 
            Hearing on entitlement to permanent compensation benefits 
 
            placed on hold for 90 days due to refusal to submit to 
 
            evaluation.  Claimant failed to show that traveling 100 
 
            miles for evaluation in Neenah, Wisconsin was unreasonable 
 
            especially when he traveled a greater distance on a couple 
 
            of occasions to hunt deer.
 
            It was held that proceeding with the hearing without the 
 
            requested examination would be unfair to defendants.  
 
            Claimant was given 90 days to submit after which time the 
 
            matter would either be dismissed or set for hearing.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS G. ROBINSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 945523
 
            MCCRACKEN CONCRETE PIPE       :
 
            MACHINERY COMPANY,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant, Dennis G. Robinson, seeks benefits under the 
 
            Iowa Workers' Compensation Act upon his petition in 
 
            arbitration against defendant employer, McCracken Concrete 
 
            Pipe Machinery Company, and its insurance carrier, Liberty 
 
            Mutual Insurance Group.  Mr. Robinson sustained a bilateral 
 
            repetitive motion injury to the wrists on or about July 14, 
 
            1989.
 
            
 
                 This cause came on for hearing in Sioux City, Iowa on 
 
            November 16, 1992.  The record consists of claimant's 
 
            testimony and joint exhibits 1-38.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            July 14, 1989, that the injury caused both temporary and 
 
            permanent disability, to the rate of compensation ($283.02 
 
            per week), that all requested medical benefits have been or 
 
            will be paid by defendants, and to the voluntarily payment 
 
            of certain benefits prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The extent of entitlement to healing period 
 
            benefits;
 
            
 
                 2.  The nature and extent of permanent disability.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Dennis Robinson took employment with McCracken Concrete 
 
            Pipe Machinery Company in February 1978.  He began as an 
 
            ironworker, forming steel sheets, for several months before 
 
            beginning work as a welder.  He continued this work through 
 
            the date of injury.  His duties involved much use of heavy 
 
            tools, such as hammers and two-handed grinders.  
 
            
 
                 Claimant eventually developed bilateral symptoms of 
 
            pain and numbness diagnosed as carpal tunnel syndrome.  He 
 
            underwent a surgical release on the left side on September 
 
            12, 1989, and on the right side on September 28, 1989.  John 
 
            J. Dougherty, M.D., was the treating surgeon.
 
            
 
                 After Mr. Robinson returned to work (at the same job), 
 
            healing went well with the right hand, but poorly on the 
 
            left side.  Symptoms of pain, numbness and loss of strength 
 
            gradually worsened in the left hand, especially in June and 
 
            July 1990, after which he again left work.
 
            
 
                 Claimant was admitted to the Marian Health Center on 
 
            August 21, 1990, upon Dr. Dougherty's impression of 
 
            stenosing tenosynovitis of the abductor tendons of the left 
 
            thumb and deQuervain's disease with previous carpal tunnel 
 
            release.  Dr. Dougherty performed an incision of the tendon 
 
            sheath and release of the tendons on the same day, but 
 
            claimant experienced no relief.  Dr. Dougherty finds no 
 
            causal nexus between his diagnosed stenosing tenosynovitis 
 
            of the thumb and claimant's carpal tunnel syndrome.
 
            
 
                 On May 31, 1990, Dr. Dougherty assigned a two percent 
 
            impairment rating to the right hand.  On January 15, 1991, 
 
            he assigned a five percent impairment of the upper 
 
            extremity, presumably meaning the left side.  "Upper 
 
            extremity" is understood as referring to the arm.  In a 
 
            letter dated May 8, 1991, Dr. Dougherty made reference to a 
 
            three to five percent impairment and expressed the opinion 
 
            that "torn ligaments" diagnosed at the Mayo Clinic were 
 
            probably due to a single incident, rather than work related 
 
            overuse syndrome.
 
            
 
                 In March 1991, claimant was seen at the Mayo Clinic in 
 
            Minnesota by Allen T. Bishop, M.D.  Dr. Bishop performed a 
 
            diagnostic wrist arthroscopy on April 20, 1991, finding a 
 
            pathologically torn scapholunate ligament which he repaired.  
 
            Dr. Bishop found that the ligament injury appeared to be one 
 
            of chronic attrition.  On June 10, 1991, he wrote that, 
 
            "Attributing etiology of this to work is somewhat difficult 
 
            but it is at least a factor in the occurrence of this injury 
 
            as well in my opinion."  Symptoms were "certainly in part 
 
            due to his employment."  On October 7, 1991, Dr. Bishop 
 
            specified that the scapholunate ligament injury was "indeed 
 
            the result of work related repetitive use."  He noted that 
 
            patients frequently presented to the section of hand surgery 
 
            at Mayo with no history of definite severe wrist injury, but 
 
            with a history of heavy labor consistent with a gradual 
 
            attritional change at the scapholunate interosseous area 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            resulting in subsequent instability and symptomatology.
 
            
 
                 On January 10, 1992, Dr. Bishop assigned an impairment 
 
            rating equivalent to 14 percent of the upper extremity, 
 
            again understood as meaning arm.  The impairment was based 
 
            on the American Medical Association Guides to the Evaluation 
 
            of Permanent Impairment.
 
            
 
                 Certain healing period benefits were paid 
 
            intermittently through May 12, 1991 on a voluntary basis.  
 
            The parties dispute entitlement to such benefits thereafter.  
 
            As of December 5, 1991, Dr. Bishop wrote that claimant had 
 
            continued to improve and that it was hoped that symptoms 
 
            would further improve with time.
 
            
 
                                conclusions of law
 
            
 
                 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 parties agree that claimant sustained a repetitive 
 
            motion injury arising out of and in the course of 
 
            employment.  The disagreement relates to whether the 
 
            ligament tear repaired by Dr. Bishop bears a causal nexus to 
 
            work activities.  Dr. Dougherty believes not; Dr. Bishop is 
 
            of the opposite view.  Dr. Bishop's opinion is found more 
 
            persuasive.  He was the treating surgeon who successfully 
 
            diagnosed claimant's actual problem, and finds this 
 
            consistent with his experience at the Mayo Clinic, where 
 
            other patients typically do no relate similar problems to a 
 
            single traumatic incident, but rather to repetitive trauma.  
 
            Claimant has met his burden of proof on the causation issue.
 
            
 
                 Healing period is in dispute subsequent to May 12, 
 
            1991.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Dr. Bishop rendered an impairment rating on January 10, 
 
            1992.  Doing so indicates that no further improvement is 
 
            anticipated.  Thus, claimant is entitled to additional 
 
            healing period benefits from May 13, 1991 through January 
 
            10, 1992, or a total of 34 weeks, 5 days.
 
            
 
                 The parties dispute not only the extent, but the very 
 
            nature of claimant's entitlement to permanent disability 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            benefits.  Claimant is of the view that the injury should be 
 
            compensated industrially (that is, as a measure of loss of 
 
            earning capacity) because two scheduled members are 
 
            involved.  This issue has been already determined adversely 
 
            to claimant by the Iowa Supreme Court in Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
            
 
                 Under Iowa Code section 85.34(2)(s), as interpreted by 
 
            Simbro, permanent disability to two scheduled members as 
 
            the result of a single accident is to be compensated on the 
 
            basis of functional loss as a percentage of 500 weeks.
 
            
 
                 Dr. Dougherty finds a two percent impairment to the 
 
            right hand.  Under the Guides to the Evaluation of Permanent 
 
            Impairment (3rd Edition) published by the American Medical 
 
            Association, this loss is equivalent to a two percent 
 
            impairment to the upper extremity or arm, also a one percent 
 
            impairment to whole person.  Dr. Bishop finds a fourteen 
 
            percent impairment of the upper extremity on the left side, 
 
            equivalent to a eight percent impairment of the whole 
 
            person.  The AMA combined values chart shows that a two 
 
            percent and an eight percent impairment considered together 
 
            constitutes a ten percent loss to the body as a whole.  Ten 
 
            percent of 500 weeks is 50 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant additional healing 
 
            period benefits of thirty-four point seven one four (34.714) 
 
            weeks commencing May 13, 1991 at the stipulated rate of two 
 
            hundred eight-three and 02/100 dollars ($283.02) per week, 
 
            totaling nine thousand eight hundred twenty-four and 76/100 
 
            dollars ($9,824.76).
 
            
 
                 Defendants shall pay unto claimant fifty (50) weeks of 
 
            permanent partial disability at the stipulated rate 
 
            commencing January 11, 1992, totaling fourteen thousand one 
 
            hundred fifty-one dollars ($14,151.00).
 
            
 
                 Defendants shall have credit for permanent partial 
 
            disability benefits voluntarily paid to date.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert B Deck
 
            Attorney at Law
 
            225 Frances Building
 
            Sioux City Iowa 51101
 
            
 
            Mr James M Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Building
 
            PO Box 1828
 
            Sioux City Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1808
 
                                          Filed December 7, 1992
 
                                          DAVID R. RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS G. ROBINSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 945523
 
            MCCRACKEN CONCRETE PIPE       :
 
            MACHINERY COMPANY,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1808
 
            Under Simbro v. DeLong's Sportswear, simultaneous injury to 
 
            two scheduled members is compensated functionally, not 
 
            industrially.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARIE CLUNEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 945696
 
            REAMES FOODS,                 :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 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
 
            
 
                   I.  Whether the deputy erred in concluding that 
 
                 the claimant's shoulder injury was a 
 
                 body-as-a-whole injury rather than an injury to a 
 
                 scheduled member.
 
            
 
                  II.  Whether the deputy erred in awarding 40% 
 
                 industrial disability.
 
            
 
                 III.  The deputy erred in concluding that the 
 
                 claimant's shoulder injury was a body-as-a-whole 
 
                 injury rather than an injury to a scheduled 
 
                 member.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed December 3, 1993 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed December 3, 1993 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.
 
            
 
                 A great deal of the dispute in this case surrounds the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issue of whether this is a scheduled injury to the arm 
 
            compensable under section 85.34(2)(m) or an injury 
 
            compensable under section 85.34(2)(u).  Iowa Code section 
 
            85.34(2)(m) states, "The loss of two-thirds of that part of 
 
            an arm between the shoulder joint and the elbow joint shall 
 
            equal the loss of an arm...."  Section 85.34(2)(u) states, 
 
            "In all cases of permanent partial disability other than 
 
            those hereinabove described or referred to in paragraphs "a" 
 
            through "t" hereof, the compensation shall be paid during 
 
            the number of weeks in relation to five hundred weeks as the 
 
            disability bears to the body of the injured employee as a 
 
            whole." 
 
            
 
                 A recent case dealing with this issue is Lauhoff Grain 
 
            v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  In that decision 
 
            the supreme court stated "We conclude that Iowa Code section 
 
            85.34(2)(o) in defining a leg, does not include a hip 
 
            joint."  *****Similarly, logic indicates that in code 
 
            section 85.34(2)(m), the word "arm" does not include a 
 
            shoulder joint.
 
            
 
                 An elementary understanding of terminology and anatomy 
 
            is critical.  The rotator cuff is an anatomical structure 
 
            which is part of the structures which connect the arm to the 
 
            shoulder girdle.  It is the socket portion of the shoulder 
 
            joint which is a ball and socket type of joint.  The head of 
 
            the humerus is the ball portion of the joint.  The acromion 
 
            is a part of the bone known as the scapula or sometimes 
 
            commonly referred to as the shoulder blade.  The clavicle is 
 
            a bone that links the sternum to the scapula.  It is 
 
            sometimes referred to as the collarbone.  
 
            
 
                 The American Heritage Dictionary, 2d College Ed., 
 
            defines "arm" as "an upper limb of the human body connecting 
 
            the hand and wrist to the shoulder."  In common usage, the 
 
            term "arm" means the portion of the human body which is 
 
            composed of the upper arm (humerus) and forearm (radius and 
 
            ulna).  In common usage it sometimes includes the hand and 
 
            wrist.  No authority has been found in any dictionary, 
 
            treatise or from common usage which includes the clavicle or 
 
            scapula as part of the arm.  For purposes of section 
 
            85.34(2)(m) "arm" has its common meaning, namely, the upper 
 
            limb which connects the wrist to the shoulder.  The word 
 
            "arm" does not include the shoulder.
 
            
 
                 In medical terminology, as used by the medical 
 
            profession, the term "arm" means "the segment of the 
 
            superior limb between the shoulder and the elbow."  
 
            Stedman's Medical Dictionary, 24th ed., p. 109.  That 
 
            reference goes on to recognize that the term "arm" is 
 
            inaptly used by the general population to mean the whole 
 
            superior limb.
 
            
 
                 A great deal of the confusion dealing with shoulder and 
 
            hip injuries arises from use of the medical terminology 
 
            "upper extremity" and "lower extremity."  Some individuals 
 
            tend to use those terms interchangeably with the terms "arm" 
 
            and "leg" which appear in the statute.  Those terms are not 
 
            synonymous and using them interchangeably creates confusion, 
 
            errors and incorrect results.  The term "upper extremity" 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            has a precise meaning.  In Gray's Anatomy, copyright 1974, 
 
            32d printing, at page 134, upper extremity is defined, "The 
 
            bones of the upper extremity consist of those of the 
 
            shoulder girdle, the arm, the forearm, and the hand.  The 
 
            term "shoulder girdle" is also defined.  "The shoulder 
 
            girdle consists of two bones, the clavicle and the scapula."  
 
            On that page and the following pages, the extremities, their 
 
            function and other basic anatomical facts are described.  
 
            (Some older, obsolete versions of Gray's use the terms "arm" 
 
            and "upper extremity" interchangeably but current versions 
 
            make a distinction.) 
 
            
 
                 The term "upper extremity" is used in the Guides to 
 
            Evaluation of Permanent Impairment, 3d ed. (revised), 
 
            published by the American Medical Association.  The Guides 
 
            are commonly used to obtain predictable impairment ratings 
 
            for specified medical conditions.  The Guides provide 
 
            impairment ratings of "extremities."  The Guides do not 
 
            provide impairment ratings for "arms" and "legs."  It is for 
 
            this reason that in Lauhoff the supreme court stated, "The 
 
            AMA guide relied on is of doubtful authority in this case, 
 
            in any event, because it includes the hip as part of the 
 
            `lower extremity' a term which is not found in our statutory 
 
            schedule." (pp. 839 & 840)  Abnormal motion of the shoulder 
 
            is rated at pages 34-38 of the Guides as impairment of the 
 
            "upper extremity."  The term "shoulder" is defined in 
 
            Stedman's Medical Dictionary, 24th Edition at page 1282 as 
 
            "the lateral portion of the scapular region, where the 
 
            scapula joins with the clavicle and humerus and is covered 
 
            by the rounded mass of the deltoid muscle."  It is therefore 
 
            clear that the term "upper extremity" includes not only the 
 
            hand and the arm (in its common usage) but it also includes 
 
            the shoulder.  
 
            
 
                 When a physician uses the terms "body as a whole" or 
 
            "whole person," it means the trunk of the body, exclusive of 
 
            the extremities.  It does not include the hips or shoulders 
 
            since they are parts of the lower and upper extremities.
 
            
 
                 *****
 
            
 
                 The term "impairment of the upper extremity" may 
 
            properly be used by the medical profession to define an 
 
            injury which, for workers' compensation purposes, is limited 
 
            to the hand, is limited to the arm or which exists only in 
 
            the shoulder.  Impairment of many parts of the body can be 
 
            converted under the Guides to an equivalent impairment of 
 
            other parts or of the whole person.  A doctor's choice of 
 
            terminology or choice of converting or not converting has no 
 
            bearing upon the ultimate determination of where the 
 
            disability and impairment is actually located.  The fact 
 
            that a physician rates impairment as being of the "upper 
 
            extremity" does not indicate whether or not it is limited to 
 
            the arm or hand.
 
            
 
                 More than 40 years ago the Iowa Supreme Court dealt 
 
            with a case in which the employee had suffered a fracture of 
 
            the distal end of the collarbone (clavicle) where it joins 
 
            the shoulder blade.  In medical terminology, those 
 
            structures are the distal end of the clavicle and the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            acromion.  In that case, the employer asserted that the 
 
            disability should be compensated as a scheduled disability 
 
            of the arm.  In rejecting that argument the Iowa Supreme 
 
            Court stated, "Moreover it assumes an injury to the shoulder 
 
            is an injury to an arm.  This assumption is unwarranted.  
 
            Subsection 13 [the current equivalent of section 
 
            85.34(2)(m)] does not apply to a shoulder injury, nor is 
 
            such an injury scheduled in any other subsection...." 
 
            emphasis added.   Alm v. Morris Barick Cattle Co., 240 Iowa 
 
            1174, 1177 38 N.W.2d 161 (1949).
 
            
 
                 That case cites Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).  Dailey was a case in which the 
 
            employee had suffered a fracture of the femur.  It did not 
 
            heal properly (an apparently common occurrence), and the 
 
            result was absorption or atrophy changes in the acetabulum 
 
            (hip socket) although not marked.  There also resulted 
 
            tilting of the pelvis and a compensatory curvature of the 
 
            spine.*****
 
            
 
                 In that case the Iowa Supreme Court*****stated:  "But 
 
            where there is injury to some scheduled member, and also to 
 
            parts of the body not included in the schedule, the 
 
            resultant `permanent total disability' if established, is 
 
            compensable under Code section 1395" [The counterpart of 
 
            current section 85.34(3)]. emphasis added.  The court went 
 
            on to state, "It is our conclusion appellee's injury is not 
 
            within the schedules of Code section 1396 because the actual 
 
            physical injury extended beyond and outside the scheduled 
 
            area."  233 Iowa page 765 (emphasis added)
 
            
 
                 The Iowa Supreme Court recently again addressed the 
 
            issue of scheduled versus nonscheduled injuries in the cases 
 
            Mortimer v. Fruehauf Corporation,  502 N.W.2d 12 (Iowa 
 
            1993) and Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986).*****In Lauhauff the supreme court relied heavily upon 
 
            the medical reference Gray's Anatomy.  The court also 
 
            recognized the distinction between the terminology of "lower 
 
            extremity" which is used in the AMA Guides and the "leg" 
 
            which is found in the statute.  The illustrative portion of 
 
            the decision states: 
 
            
 
                    Lauhoff argues that, even if a hip is 
 
                 considered to be a part of the body as a whole, 
 
                 there can be no recovery of benefits for 
 
                 industrial disability unless it is shown that a 
 
                 part of the body other than the leg is impaired.  
 
                 This, of course, is true.  It argues, however, 
 
                 that, since the function of a hip is to provide 
 
                 articulation for the leg, impairment of the hip 
 
                 translates only in impairment of the leg, and is 
 
                 therefore governed by the leg schedule.
 
            
 
                    We reject this argument; the impairment of body 
 
                 functions in this case were in the hip, not the 
 
                 leg, and we will not consider these functions to 
 
                 be coextensive merely because the hip function 
 
                 impacts on that of the leg.  To do so would extend 
 
                 the application of Iowa Code section 85.34(2)(o) 
 
                 beyond its express terms by applying it to a body 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 member not expressly included.  (emphasis added).  
 
                 The result would be a rupturing of the conceptual 
 
                 tidiness which is said to be the very essense of 
 
                 the scheduled-injury approach.  (Lauhoff Grain v. 
 
                 McIntosh, 395 N.W.2d 834, 840 (Iowa 1986)
 
            
 
                 The most recent case addressing whether an injury 
 
            should be compensated by the schedule is Mortimer, 502 
 
            N.W.2d 12.  In that case the court confirmed the well 
 
            established principle that the workers' compensation 
 
            statutes are to be construed liberally to benefit the 
 
            injured worker.*****In Mortimer this court stated:
 
            
 
                 A.  Compensability under Iowa's workers' 
 
                 compensation act.  Before proceeding to the 
 
                 question at hand, we think it would be helpful to 
 
                 review the compensation scheme under Iowa Code 
 
                 chapter 85, Iowa's workers' compensation act.  As 
 
                 a creature of statute, our workers' compensation 
 
                 law--subject to constitutional limitations--may 
 
                 provide such provisions and limitations as the 
 
                 legislature deems necessary.  But, as we noted 
 
                 earlier, this law is for the benefit of the 
 
                 working person and should be, within reason, 
 
                 liberally construed.
 
            
 
                    Functional disability is arrived at by 
 
                 determining the impairment of the employee's body 
 
                 function.  This disability is limited to the loss 
 
                 of the physiological capacity of the body or body 
 
                 part.  Simbro v. Delong's Sportswear, 332 N.W.2d 
 
                 886, 887 (Iowa 1983).
 
            
 
                    In contrast, industrial disability is arrived 
 
                 at by determining the loss to the employee's 
 
                 earning capacity of the body or body part.  In 
 
                 this determination impairment of the body 
 
                 function--that is, functional disability--is just 
 
                 one factor.  Other factors include the employee's 
 
                 age, education, qualifications, experience, and 
 
                 the inability of the employee to engage in 
 
                 employment for which the employee is fitted.  All 
 
                 of these factors are used to measure the extent to 
 
                 which the injury impairs the employee's ability to 
 
                 earn wages.  Id. 
 
            
 
                    Chapter 85 divides permanent partial disability 
 
                 into either a scheduled or unscheduled loss.  See 
 
                 Iowa Code  85.34(2).  Paragraphs (a) through (t) 
 
                 of section 85.34(2) are reserved for scheduled 
 
                 injuries, like a loss of a foot.  Specific weekly 
 
                 benefits are listed.  For example, paragraph (n) 
 
                 provides for weekly compensation during one 
 
                 hundred fifty weeks for loss of a foot.  
 
                 Unscheduled injuries are covered in paragraph (u).  
 
                 Benefits for these are based on the injury to the 
 
                 body as a whole.  See Iowa Code  85.34(2)(u) 
 
                 ("compensation shall be paid during the number of 
 
                 weeks in relation to five hundred weeks as the 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 disability bears to the body of the injured 
 
                 employee as a whole").
 
            
 
                    We have approved the use of functional 
 
                 industrial methods of determination within 
 
                 appropriate classifications of section 85.34(2).  
 
                 For example, a specific scheduled disability is 
 
                 determined by the functional method; an 
 
                 unscheduled disability is determined by the 
 
                 industrial method.  Simbro, 332 N.W.2d at 887; see 
 
                 also Graves v. Eagle Iron Works, 331 N.W.2d 116, 
 
                 117-19 (Iowa 1983) (held that an employee with a 
 
                 permanent partial disability to a leg had a 
 
                 scheduled disability that required the 
 
                 determination of functional impairment of his leg 
 
                 without regard to the industrial disability 
 
                 factors).  So a person may suffer a permanent 
 
                 total disability as a result of some scheduled 
 
                 injury.  This may happen because of age, lack of 
 
                 training, or other condition peculiar to the 
 
                 person.  Yet such an injury is arbitrarily 
 
                 compensable according to the schedule.
 
            
 
                    An unscheduled injury can result in permanent 
 
                 total disability.  In these circumstances, the 
 
                 "weekly compensation is payable during the period 
 
                 of the employee's disability."  See Iowa Code  
 
                 85.34(3).
 
            
 
                    ....   
 
            
 
                    ...Unscheduled injuries are covered in 
 
                 paragraph (u) of section 85.34(2).... This 
 
                 provision sets no limitation as to the physical 
 
                 location of the injury causing the disability.
 
            
 
                    The only limitation regarding location of the 
 
                 injury concerns permanent partial disabilities 
 
                 arising from scheduled injuries.  And although 
 
                 such injuries may cause permanent total disability 
 
                 because of the claimant's lack of education or 
 
                 experience or physical strength or ability, the 
 
                 injuries are arbitrarily compensable according to 
 
                 the schedule.  This is so because the legislature 
 
                 in its wisdom has seen fit to give the commission 
 
                 no discretion with regard to scheduled injuries.  
 
                 The legislature did this in order to make certain 
 
                 the amount of compensation in cases of specific 
 
                 injuries and to avoid controversies.  But where 
 
                 there is injury to a scheduled member and also to 
 
                 parts of the body not included in this schedule, 
 
                 there is no logical reason for such arbitrariness.
 
            
 
                 *****
 
            
 
                 Two recent appeal decisions issued by this agency deal 
 
            with injuries in the acromioclavicular area of the shoulder.  
 
            Those decisions are Hike v. IBP, inc., file number 764571 
 
            (App. Dec. Oct. 23, 1990); and Prewitt v. Firestone Tire and 
 
            Rubber Co., file numbers 931128 and 876686 (App. Dec. Aug. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            12, 1992).  Lauhoff is a case where the initial trauma and 
 
            injury was to a scheduled member, the leg, as evidenced by 
 
            the fracture of the femur.  The injury was taken into the 
 
            body by after effects which ran into the hip joint.  Hike, 
 
            Prewitt and the instant case, all involve situations where 
 
            the initial trauma and anatomical injury was not located in 
 
            a scheduled member.  In all three of these cases, the 
 
            initial, primary trauma and injury was to the shoulder 
 
            girdle, a situation much like the situation in Alm.*****In 
 
            the instant case, there is no evidence of any significant 
 
            injury, anatomical damage, derangement or other problem 
 
            within the arm itself.*****
 
            
 
                 *****
 
            
 
                 [The method by which claimant's injury will be 
 
            compensated is determined by whether the impairment 
 
            resulting from the injury is confined to one of the 
 
            scheduled members enumerated under Iowa Code 85.34(2)(a-t), 
 
            or whether the impairment is to another part of the body.  
 
            Prewitt v. Firestone Tire and Rubber Co., Appeal Decision, 
 
            August 12, 1992.  In the instant case, Dr. Misol has imposed 
 
            restrictions on claimant to avoid repetitive lifting, 
 
            pushing, pulling or working above shoulder level.  He has 
 
            also advised her to avoid reaching above the shoulders.  The 
 
            greater weight of the medical evidence shows that claimant's 
 
            impairment from her injury is in the use of her shoulder.  
 
            Under Prewitt and other cases, this requires that the injury 
 
            be compensated industrially under Iowa Code 85.34(2)(u).]
 
            
 
                 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).
 
            
 
                 *****
 
            
 
                 Marie's current effort at obtaining education in the 
 
            clerical field is certainly prudent.  Were it not for her 
 
            efforts to obtain re-employment and enhance her 
 
            employability, her prospects for obtaining any meaningful 
 
            replacement employment would be quite bleak.  The forecast 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            and projections expressed in the Corvel report of July 2, 
 
            1993 (ex. 5, pp. 13-16) are questionable to come extent.  It 
 
            is noted that of those jobs listed, those entitled 
 
            housekeeper, duplicating machine operator, library assistant 
 
            and short order cook might exceed the restrictions 
 
            recommended by Dr. Misol.  The three clerk jobs could 
 
            likewise involve lifting which exceeds Dr. Misol's 
 
            restrictions.  Many articles in department stores exceed 20 
 
            pounds in weight and must be lifted and bagged by the 
 
            cashier or sales clerk.  Further, the labor market 
 
            implications portion of the report speaks of the "number of 
 
            employment opportunities in the area of sales, clerical and 
 
            service..." as showing growth.  It is well recognized that 
 
            those areas are certainly experiencing growth but those also 
 
            are areas where a very substantial portion of the growth is 
 
            for part-time jobs.  Marie has lost the ability to perform 
 
            manufacturing jobs.  Her lack of success at obtaining 
 
            replacement employment since the DOT Drug job ended, despite 
 
            the assistance of a vocational consultant, illustrates the 
 
            difficulty Marie is likely to have in obtaining replacement 
 
            employment which provides her a level of annual earnings 
 
            comparable to that which she experienced while she was 
 
            employed by Reames.  The report from Corvel does not address 
 
            the likelihood of obtaining full-time employment.  It does 
 
            not identify how many of the jobs openings that it refers to 
 
            were part-time, rather than 40-hour per week jobs.  It does 
 
            not address how many of the 40-hour per week jobs fall 
 
            within Marie's physical capabilities.  Where it states 
 
            "positions mentioned earlier would be slightly below this 
 
            mark ($200-$250 weekly)."  It apparently is assuming 40 
 
            hours of work per week rather than part-time employment.  It 
 
            is unknown whether claimant will be able to successfully 
 
            complete that training.  Generally speaking, jobs in the 
 
            sales, clerical and service industries do not pay as well as 
 
            jobs in manufacturing.  Marie has lost the ability to hold 
 
            most manufacturing jobs.  The mere fact that this injury has 
 
            required Marie to leave the manufacturing field indicates 
 
            that she has experienced a considerable loss of earning 
 
            capacity.
 
            
 
                 When all the material factors of industrial disability 
 
            are considered, it is determined that Marie Cluney has 
 
            experienced a 40 percent permanent partial disability as a 
 
            result of her March 22, 1990 injury.  This entitles her to 
 
            receive 200 weeks of permanent partial disability 
 
            compensation under the provisions of Code section 
 
            85.34(2)(u).  
 
            
 
                 As stipulated, defendants are liable to pay healing 
 
            period compensation from October 20, 1992 through March 3, 
 
            1993, a span of 19 3/7 weeks.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant nineteen and 
 
            three-sevenths (19 3/7) weeks of compensation for healing 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            period at the rate of one hundred sixty-one and 52/100 
 
            dollars ($161.52) per week payable commencing October 20, 
 
            1992.
 
            
 
                 That defendants pay Marie Cluney two hundred (200) 
 
            weeks of compensation for permanent partial disability at 
 
            the stipulated rate of one hundred sixty-one and 52/100 
 
            dollars ($161.52) per week payable commencing March 4, 1993.  
 
            
 
                 That defendants shall receive credit for the weekly 
 
            compensation previously paid.  Any accrued, past due amounts 
 
            shall be paid in a lump sum together with interest pursuant 
 
            to section 85.30.
 
            
 
                 That ordered that the costs of this action are assessed 
 
            against defendants.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency.
 
            
 
                 Signed and filed this ____ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  STE 500
 
            West Des Moines IA  50265
 
            
 
            Mr Thomas M Plaza
 
            Attorney at Law
 
            701 Pierce St STE 300
 
            PO Box 3086
 
            Sioux City  Iowa  51102-3086
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803.1
 
                                                Filed May 31, 1994
 
                                                BYRON K. ORTON
 
                      
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARIE CLUNEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 945696
 
            REAMES FOODS,                 :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803.1
 
            Claimant with bilateral shoulder impingement syndrome held 
 
            to have an unscheduled injury.  Claimant's restrictions not 
 
            to lift above shoulder height indicated impairment was to 
 
            the shoulder and extended beyond the scheduled member.  She 
 
            was awarded 40 percent permanent partial disability.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         MARIE CLUNEY,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 945696
 
         REAMES FOODS,                 :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         KEMPER GROUP,                 :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Marie Cluney 
 
         against Reames Foods, her former employer, and Kemper Insurance 
 
         Group as a result of a stipulated injury of March 22, 1990.  The 
 
         only issue is determination of the claimant's entitlement to 
 
         compensation for permanent partial disability.  An underlying 
 
         issue is whether the disability is a scheduled disability or 
 
         whether it is one which is to be compensated industrially.
 
         
 
              The case was heard at Des Moines, Iowa, on September 1, 
 
         1993.  The evidence consists of testimony from Marie Cluney and 
 
         jointly offered exhibits 1 through 5.  
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Marie Cluney is a 60-year-old woman who obtained a GED 
 
         following the injury in this case.  She is currently enrolled in 
 
         a clerical training program at Des Moines Area Community College.  
 
         
 
              Marie's work history includes restaurant, grocery store and  
 
         janitorial work.  A considerable amount of her work history is in 
 
         the manufacturing industry.  She has some supervisory experience.  
 
         Marie was employed by Reames Foods from 1984 until 1991.  Her 
 
         employment was terminated as a result of her inability to perform 
 
         the essential functions of the job due to disabilities resulting 
 
         from the injury which is the subject of this case.  
 
         
 
              In February 1991 Marie obtained employment as the cash 
 
         office clerk at a DOT Drug Store.  She held that job until the 
 
         store closed.  She was paid $5.25 per hour.  Her duties included 
 
         supervision of the sales clerks and reconciling the cash and cash 
 
         registers with sales.  The work bothered Marie's shoulders but 
 
         she performed it.  It was necessary for her to receive assistance 
 
         from the Iowa Department of Vocational Rehabilitation in order to 
 
         be able to perform that job.  She had been off work since March 
 
         1990 before obtaining that job and had been searching for work 
 
         since approximately August 1990.  Marie was with DOT Drug for 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         slightly over one year.  The store closed February 28, 1992.  She 
 
         has not worked anywhere since the DOT Drug Store closed.  
 
         
 
              When employed at Reames Marie had been earning in the range 
 
         of $12 thousand or $13 thousand per year from her employment.  
 
         There were periodic lay offs for which she received unemployment 
 
         ranging from a few hundred dollars per year up to $2 thousand per 
 
         year.  During the last three years of her employment at Reames, 
 
         her income from all sources was in the range of $13 thousand to 
 
         $14 thousand.  It was approximately $11 thousand in 1986 and $9 
 
         thousand in 1985 (exhibit 4).  If the DOT Drug job had continued 
 
         her annual earnings would have been approximately $11 thousand 
 
         for 1992.  
 
         
 
              When Marie first reported her injury she was sent to David 
 
         T. Berg, M.D., and then referred to Orthopedic Surgeon Peter 
 
         Wirtz, M.D.  Her condition was diagnosed as impingement syndrome 
 
         (ex. 1, p. 2).  She was taken off work and treated 
 
         conservatively.  On November 15, 1990, Dr. Wirtz felt that she 
 
         had reached maximum medical recovery and assigned a 4 percent 
 
         impairment rating for each upper extremity (ex. 1, pages 27-28).  
 
         Marie then obtained her job at Dot Drug.  Following the end of 
 
         the job at DOT Drug she decided to proceed to surgery.  
 
         Arthroscopic surgery was performed by Orthopedic Surgeon Sinesio 
 
         Misol, M.D., on October 21, 1992 (ex. 1, p. 21).  The surgery was 
 
         performed only on claimant's right shoulder because it was the 
 
         most symptomatic.  Following a relatively unremarkable course of 
 
         recovery, Dr. Misol issued a report on March 16, 1993, in which 
 
         he stated that she had achieved maximum medical improvement (ex. 
 
         1, p. 16).  Dr. Misol has since rated claimant as having a 10 
 
         percent permanent impairment of the right upper extremity but no 
 
         ratable impairment of the left (ex. 1, pp. 23, 26).  Dr. Misol 
 
         has recommended that she avoid repetitive lifting, pushing, 
 
         pulling or working above shoulder level.  He stated that she 
 
         should follow a 20-pound weight restriction and avoid reaching 
 
         above the shoulders.  He recommended that she avoid reaching to 
 
         the side higher than at a 45 degree angle.  He stated that she 
 
         should do well in any job where her arms are at waist level (ex. 
 
         1, pp. 24, 26).  Dr. Wirtz had earlier recommended similar 
 
         activity restrictions (ex. 1, p. 8).  
 
         
 
              It is noted that there is some apparent disagreement between 
 
         Dr. Misol and Dr. Wirtz with regard to the amount of permanent 
 
         impairment and whether or not the left upper extremity is 
 
         impaired.  It is noted that Dr. Misol's activity restrictions are 
 
         not limited to the right side.  They apply bilaterally.  For this 
 
         reason it is determined that while the problem with claimant's 
 
         left shoulder might not be ratable, the shoulder is, 
 
         nevertheless, afflicted with some level of disability.  The 
 
         process of rating permanent impairments is somewhat arbitrary.  
 
         Objective standards are set and when those standards are met 
 
         specified degrees of impairment are assignable.  When evaluating 
 
         loss, or loss of use, the recommended activity restrictions are 
 
         as important a factor as the numerical impairment rating.  It is 
 
         found that the claimant has disability afflicting both of her 
 
         shoulders and that the disability is 10 percent in the right as 
 
         indicated by Dr. Misol and that the left shoulder has an 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         equivalent disability.  
 
         
 
              It is found that the actual situs of the injury, impairment 
 
         and disability is in the claimant's shoulders.  While it 
 
         manifests itself principally in loss of her ability to make use 
 
         of her arms and restrictions dealing with use of her arms, the 
 
         actual physical damage and derangement is in her shoulders and 
 
         shoulder joints.  Her arms are not damaged or impaired.  The 
 
         damage and impairment is in her shoulders and as a result of that 
 
         damage and impairment she is not able to make full use of her 
 
         arms.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              A great deal of the dispute in this case surrounds the issue 
 
         of whether this is a scheduled injury to the arm compensable 
 
         under section 85.34(2)(m) or an injury compensable under section 
 
         85.34(2)(u).  Iowa Code section 85.34(2)(m) states, "The loss of 
 
         two-thirds of that part of an arm between the shoulder joint and 
 
         the elbow joint shall equal the loss of an arm...."  Section 
 
         85.34(2)(u) states, "In all cases of permanent partial disability 
 
         other than those hereinabove described or referred to in 
 
         paragraphs "a" through "t" hereof, the compensation shall be paid 
 
         during the number of weeks in relation to five hundred weeks as 
 
         the disability bears to the body of the injured employee as a 
 
         whole." 
 
         
 
              A recent case dealing with this issue is Lauhoff Grain v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986).  In that decision the 
 
         supreme court stated "We conclude that Iowa Code section 
 
         85.34(2)(o) in defining a leg, does not include a hip joint."  
 
         That statement from the supreme court is a conclusion of law 
 
         which creates a binding legal precedent that applies to every 
 
         pertinent case.  It is not a mere affirmance of a finding of fact 
 
         made in reliance upon the substantial evidence rule.  Logic 
 
         indicates that in code section 85.34(2)(m), the word "arm" does 
 
         not include a shoulder joint.
 
         
 
              An elementary understanding of terminology and anatomy is 
 
         critical.  The rotator cuff is an anatomical structure which is 
 
         part of the structures which connect the arm to the shoulder 
 
         girdle.  It is the socket portion of the shoulder joint which is 
 
         a ball and socket type of joint.  The head of the humerus is the 
 
         ball portion of the joint.  The acromion is a part of the bone 
 
         known as the scapula or sometimes commonly referred to as the 
 
         shoulder blade.  The clavicle is a bone that links the sternum to 
 
         the scapula.  It is sometimes referred to as the collarbone.  
 
         
 
              The American Heritage Dictionary, 2d College Ed., defines 
 
         "arm" as "an upper limb of the human body connecting the hand and 
 
         wrist to the shoulder."  In common usage, the term "arm" means 
 
         the portion of the human body which is composed of the upper arm 
 
         (humerus) and forearm (radius and ulna).  In common usage it 
 
         sometimes includes the hand and wrist.  No authority has been 
 
         found in any dictionary, treatise or from common usage which 
 
         includes the clavicle or scapula as part of the arm.  For 
 
         purposes of section 85.34(2)(m) "arm" has its common meaning, 
 
         namely, the upper limb which connects the wrist to the shoulder.  
 
         The word "arm" does not include the shoulder.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              In medical terminology, as used by the medical profession, 
 
         the term "arm" means "the segment of the superior limb between 
 
         the shoulder and the elbow."  Stedman's Medical Dictionary, 24th 
 
         ed., p. 109.  That reference goes on to recognize that the term 
 
         "arm" is inaptly used by the general population to mean the whole 
 
         superior limb.
 
         
 
              A great deal of the confusion dealing with shoulder and hip 
 
         injuries arises from use of the medical terminology "upper 
 
         extremity" and "lower extremity."  Some individuals tend to use 
 
         those terms interchangeably with the terms "arm" and "leg" which 
 
         appear in the statute.  Those terms are not synonymous and using 
 
         them interchangeably creates confusion, errors and incorrect 
 
         results.  The term "upper extremity" has a precise meaning.  In 
 
         Gray's Anatomy, copyright 1974, 32d printing, at page 134, upper 
 
         extremity is defined, "The bones of the upper extremity consist 
 
         of those of the shoulder girdle, the arm, the forearm, and the 
 
         hand.  The term "shoulder girdle" is also defined.  "The shoulder 
 
         girdle consists of two bones, the clavicle and the scapula."  On 
 
         that page and the following pages, the extremities, their 
 
         function and other basic anatomical facts are described.  (Some 
 
         older, obsolete versions of Gray's use the terms "arm" and "upper 
 
         extremity" interchangeably but current versions make a 
 
         distinction.) 
 
         
 
              The term "upper extremity" is used in the Guides to 
 
         Evaluation of Permanent Impairment, 3d ed. (revised), published 
 
         by the American Medical Association.  The Guides are commonly 
 
         used to obtain predictable impairment ratings for specified 
 
         medical conditions.  The Guides provide impairment ratings of 
 
         "extremities."  The Guides do not provide impairment ratings for 
 
         "arms" and "legs."  It is for this reason that in Lauhoff the 
 
         supreme court stated, "The AMA guide relied on is of doubtful 
 
         authority in this case, in any event, because it includes the hip 
 
         as part of the `lower extremity' a term which is not found in our 
 
         statutory schedule." (pp. 839 & 840)  Abnormal motion of the 
 
         shoulder is rated at pages 34-38 of the Guides as impairment of 
 
         the "upper extremity."  The term "shoulder" is defined in 
 
         Stedman's Medical Dictionary, 24th Edition at page 1282 as "the 
 
         lateral portion of the scapular region, where the scapula joins 
 
         with the clavicle and humerus and is covered by the rounded mass 
 
         of the deltoid muscle."  It is therefore clear that the term 
 
         "upper extremity" includes not only the hand and the arm (in its 
 
         common usage) but it also includes the shoulder.  
 
         
 
              When a physician uses the terms "body as a whole" or "whole 
 
         person," it means the trunk of the body, exclusive of the 
 
         extremities.  It does not include the hips or shoulders since 
 
         they are parts of the lower and upper extremities.
 
         
 
              The term "impairment" is a medical terms that is not found 
 
         in the statute.  Its frequent, incorrect use is also responsible 
 
         for confusion surrounding this issue.  Stedman's at page 696 
 
         defines it as "weakening, damage or deterioration; e.g, as a 
 
         result of injury or disease."  The key portion of the definition 
 
         is the word "damage."  If a part of the body has not been damaged 
 
         it is not possible for it to be impaired.  The ability to make 
 
         full use of an undamaged part of the body can be lost if its 
 
         function is dependent upon some other part of the body which has 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         been damaged.  When such a situation occurs, it is the damaged 
 
         part that is impaired, not the undamaged part.
 
         
 
              The term "impairment of the upper extremity" may properly be 
 
         used by the medical profession to define an injury which, for 
 
         workers' compensation purposes, is limited to the hand, is 
 
         limited to the arm or which exists only in the shoulder.  
 
         Impairment of many parts of the body can be converted under the 
 
         Guides to an equivalent impairment of other parts or of the 
 
         whole person.  A doctor's choice of terminology or choice of 
 
         converting or not converting has no bearing upon the ultimate 
 
         determination of where the disability and impairment is actually 
 
         located.  The fact that a physician rates impairment as being of 
 
         the "upper extremity" does not indicate whether or not it is 
 
         limited to the arm or hand.
 
         
 
              More than 40 years ago the Iowa Supreme Court dealt with a 
 
         case in which the employee had suffered a fracture of the distal 
 
         end of the collarbone (clavicle) where it joins the shoulder 
 
         blade.  In medical terminology, those structures are the distal 
 
         end of the clavicle and the acromion.  In that case, the employer 
 
         asserted that the disability should be compensated as a scheduled 
 
         disability of the arm.  In rejecting that argument the Iowa 
 
         Supreme Court stated, "Moreover it assumes an injury to the 
 
         shoulder is an injury to an arm.  This assumption is unwarranted.  
 
         Subsection 13 [the current equivalent of section 85.34(2)(m)] 
 
         does not apply to a shoulder injury, nor is such an injury 
 
         scheduled in any other subsection...." emphasis added.   Alm v. 
 
         Morris Barick Cattle Co., 240 Iowa 1174, 1177 38 N.W.2d 161 
 
         (1949).
 
         
 
              That case cites Dailey v. Pooley Lumber Co., 233 Iowa 758, 
 
         10 N.W.2d 569 (1943).  Dailey was a case in which the employee 
 
         had suffered a fracture of the femur.  It did not heal properly 
 
         (an apparently common occurrence), and the result was absorption 
 
         or atrophy changes in the acetabulum (hip socket) although not 
 
         marked.  There also resulted tilting of the pelvis and a 
 
         compensatory curvature of the spine.  The employer in that case 
 
         had unsuccessfully argued, "Even though the injury be to a 
 
         scheduled member we readily concede that if as a result of such 
 
         injury some other part of the body is affected so as to create a 
 
         disability separate and distinct from the usual, ordinary and 
 
         natural results of the injury to the scheduled member, 
 
         compensation may be awarded in addition to that provided in the 
 
         schedule.  Conversely we contend that even should the situs of 
 
         the injury be without the schedule, the workman nevertheless is 
 
         limited by the provisions of the schedule when the disability and 
 
         incapacity flowing from the injury are manifested in and confined 
 
         to the schedule member." 
 
         
 
              The Iowa Supreme Court rejected that argument stating,  
 
         "Support for their argument is found in some of the cases they 
 
         cite from other jurisdictions, but we find ourselves unable to 
 
         agree with the doctrine of these decisions..." Dailey, 233 Iowa 
 
         page 764.  The court went on to explain how the schedule 
 
         operates, in particular, that an injury to a scheduled member may 
 
         in fact cause the person to be permanently totally disabled and 
 
         then states, "Such injury, though causing permanent total 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         disability, is arbitrarily compensable according to the schedule.  
 
         But where there is injury to some scheduled member, and also to 
 
         parts of the body not included in the schedule, the resultant 
 
         `permanent total disability' if established, is compensable 
 
         under Code section 1395" [The counterpart of current section 
 
         85.34(3)]. emphasis added.  The court goes on to state, "It is 
 
         our conclusion appellee's injury is not within the schedules of 
 
         Code section 1396 because the actual physical injury extended 
 
         beyond and outside the scheduled area."  233 Iowa page 765. 
 
         emphasis added.
 
         
 
              The Iowa Supreme Court recently again addressed the issue of 
 
         scheduled versus nonscheduled injuries in the cases Mortimer v. 
 
         Fruehauf Corporation,  502 N.W.2d 12 (Iowa 1993) and Lauhoff 
 
         Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  Mortimer clearly 
 
         states that the schedule is arbitrary and is to be used only when 
 
         no other option is available.  In Lauhauff the supreme court 
 
         relied heavily upon the medical reference Gray's Anatomy.  The 
 
         court also recognized the distinction between the terminology of 
 
         "lower extremity" which is used in the AMA Guides and the "leg" 
 
         which is found in the statute.  The illustrative portion of the 
 
         decision states: 
 
         
 
                 Lauhoff argues that, even if a hip is considered to 
 
              be a part of the body as a whole, there can be no 
 
              recovery of benefits for industrial disability unless 
 
              it is shown that a part of the body other than the leg 
 
              is impaired.  This, of course, is true.  It argues, 
 
              however, that, since the function of a hip is to 
 
              provide articulation for the leg, impairment of the hip 
 
              translates only in impairment of the leg, and is 
 
              therefore governed by the leg schedule.
 
         
 
                 We reject this argument; the impairment of body 
 
              functions in this case were in the hip, not the leg, 
 
              and we will not consider these functions to be 
 
              coextensive merely because the hip function impacts on 
 
              that of the leg.  To do so would extend the application 
 
              of Iowa Code section 85.34(2)(o) beyond its express 
 
              terms by applying it to a body member not expressly 
 
              included.  (emphasis added).  The result would be a 
 
              rupturing of the conceptual tidiness which is said to 
 
              be the very essense of the scheduled-injury approach.  
 
              (Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 840 (Iowa 
 
              1986)
 
         
 
              The most recent case addressing whether an injury should be 
 
         compensated by the schedule is Mortimer, 502 N.W.2d 12.  In that 
 
         case the court confirmed the well established principle that the 
 
         workers' compensation statutes are to be construed liberally to 
 
         benefit the injured worker and again acknowledged the 
 
         arbitrariness (unfairness) of the scheduled injury system.  It 
 
         would seem to be elementary that injured workers should be 
 
         treated as fairly as the statute permits and that any doubt in 
 
         construction or application should be resolved in favor of 
 
         fairness.  Compensating permanent disability industrially based 
 
         on loss of earning capacity is inherently more fair than 
 
         compensation based on the schedule.  In Mortimer this court 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         stated:
 
         
 
              A.  Compensability under Iowa's workers' compensation 
 
              act.  Before proceeding to the question at hand, we 
 
              think it would be helpful to review the compensation 
 
              scheme under Iowa Code chapter 85, Iowa's workers' 
 
              compensation act.  As a creature of statute, our 
 
              workers' compensation law--subject to constitutional 
 
              limitations--may provide such provisions and 
 
              limitations as the legislature deems necessary.  But, 
 
              as we noted earlier, this law is for the benefit of the 
 
              working person and should be, within reason, liberally 
 
              construed.
 
         
 
                 Functional disability is arrived at by determining 
 
              the impairment of the employee's body function.  This 
 
              disability is limited to the loss of the physiological 
 
              capacity of the body or body part.  Simbro v. Delong's 
 
              Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
                 In contrast, industrial disability is arrived at by 
 
              determining the loss to the employee's earning capacity 
 
              of the body or body part.  In this determination 
 
              impairment of the body function--that is, functional 
 
              disability--is just one factor.  Other factors include 
 
              the employee's age, education, qualifications, 
 
              experience, and the inability of the employee to engage 
 
              in employment for which the employee is fitted.  All of 
 
              these factors are used to measure the extent to which 
 
              the injury impairs the employee's ability to earn 
 
              wages.  Id. 
 
         
 
                 Chapter 85 divides permanent partial disability into 
 
              either a scheduled or unscheduled loss.  See Iowa Code  
 
              85.34(2).  Paragraphs (a) through (t) of section 
 
              85.34(2) are reserved for scheduled injuries, like a 
 
              loss of a foot.  Specific weekly benefits are listed.  
 
              For example, paragraph (n) provides for weekly 
 
              compensation during one hundred fifty weeks for loss of 
 
              a foot.  Unscheduled injuries are covered in paragraph 
 
              (u).  Benefits for these are based on the injury to the 
 
              body as a whole.  See Iowa Code  85.34(2)(u) 
 
              ("compensation shall be paid during the number of weeks 
 
              in relation to five hundred weeks as the disability 
 
              bears to the body of the injured employee as a whole").
 
         
 
                 We have approved the use of functional industrial 
 
              methods of determination within appropriate 
 
              classifications of section 85.34(2).  For example, a 
 
              specific scheduled disability is determined by the 
 
              functional method; an unscheduled disability is 
 
              determined by the industrial method.  Simbro, 332 
 
              N.W.2d at 887; see also Graves v. Eagle Iron Works, 331 
 
              N.W.2d 116, 117-19 (Iowa 1983) (held that an employee 
 
              with a permanent partial disability to a leg had a 
 
              scheduled disability that required the determination of 
 
              functional impairment of his leg without regard to the 
 
              industrial disability factors).  So a person may suffer 
 
              a permanent total disability as a result of some 
 
     
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              scheduled injury.  This may happen because of age, lack 
 
              of training, or other condition peculiar to the person.  
 
              Yet such an injury is arbitrarily compensable according 
 
              to the schedule.
 
         
 
                 An unscheduled injury can result in permanent total 
 
              disability.  In these circumstances, the "weekly 
 
              compensation is payable during the period of the 
 
              employee's disability."  See Iowa Code  85.34(3).
 
         
 
                 ....   
 
         
 
                 ...Unscheduled injuries are covered in paragraph (u) 
 
              of section 85.34(2).... This provision sets no 
 
              limitation as to the physical location of the injury 
 
              causing the disability.
 
         
 
                 The only limitation regarding location of the injury 
 
              concerns permanent partial disabilities arising from 
 
              scheduled injuries.  And although such injuries may 
 
              cause permanent total disability because of the 
 
              claimant's lack of education or experience or physical 
 
              strength or ability, the injuries are arbitrarily 
 
              compensable according to the schedule.  This is so 
 
              because the legislature in its wisdom has seen fit to 
 
              give the commission no discretion with regard to 
 
              scheduled injuries.  The legislature did this in order 
 
              to make certain the amount of compensation in cases of 
 
              specific injuries and to avoid controversies.  But 
 
              where there is injury to a scheduled member and also to 
 
              parts of the body not included in this schedule, there 
 
              is no logical reason for such arbitrariness.
 
         
 
              It is clearly illustrated in Mortimer that there is no legal 
 
         requirement to prove that an injury extends into "the body as a 
 
         whole" in order to compensate the injury under section 
 
         85.34(2)(u).  All that is necessary is to prove that the 
 
         permanent physical injury impairs a part of the body which is not 
 
         included in the schedule.  In this case there is ample evidence 
 
         of permanent injury to the shoulder.  There is a scarcity of 
 
         evidence of any injury to the arm.  There is no logical, good 
 
         faith way to find that the disability is confined to the arm.
 
         
 
              In order to make a correct legal evaluation it is necessary 
 
         to look to the anatomical site of the physical injury, impairment 
 
         and damage which produces the loss of function.  As clearly 
 
         mandated by Mortimer and Lauhoff, where the physical damage or 
 
         derangement which causes the loss of use or impairment of an arm 
 
         is found in the shoulder joint, or elsewhere in the shoulder, 
 
         rather than in the arm itself, the disability is not a scheduled 
 
         disability of the arm.
 
         
 
              In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial 
 
         Commissioner Report 281 (App. Dec. 1982), a torn rotator cuff was 
 
         found to cause disability to the body as a whole.  Anatomically 
 
         the clavicle is at least as far into the body as the rotator 
 
         cuff.
 
         
 
              Two recent appeal decisions issued by this agency deal with 
 
         injuries in the acromioclavicular area of the shoulder.  Those 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         decisions are Hike v. IBP, inc., file number 764571 (App. Dec. 
 
         Oct. 23, 1990); Prewitt v. Firestone Tire and Rubber Co., file 
 
         numbers 931128 and 876686 (App. Dec. Aug. 12, 1992).  Lauhoff is 
 
         a case where the initial trauma and injury was to a scheduled 
 
         member, the leg, as evidenced by the fracture of the femur.  The 
 
         injury was taken into the body by after effects which ran into 
 
         the hip joint.  Hike, Prewitt and the instant case, all involve 
 
         situations where the initial trauma and anatomical injury was not 
 
         located in a scheduled member.  In all three of these cases, the 
 
         initial, primary trauma and injury was to the shoulder girdle, a 
 
         situation much like the situation in Alm.  In Hike and Prewitt, 
 
         as in the instant case, there is no evidence of any significant 
 
         injury, anatomical damage, derangement or other problem within 
 
         the arm itself.  The only problem in any of these three cases is 
 
         the impact that the deranged shoulder has upon the ability to use 
 
         the arm.  In each of these three cases dealing with the shoulder, 
 
         namely, this case, Hike and Prewitt, the only possible 
 
         explanation in the evidence which could cause loss of full use of 
 
         the arm is the internal derangement in the shoulder.  Unlike 
 
         Lauhoff, none of these agency cases had evidence of injury to 
 
         the scheduled member itself.  What is clear from Lauhoff, 
 
         however, is that if the loss of function of a scheduled member 
 
         results from impairment of the function of the joint where the 
 
         member attaches to the body and upon which it is dependent for 
 
         its function, then the disability is to be evaluated and 
 
         compensated industrially.  It is difficult to reconcile Hike and 
 
         Prewitt with Alm, Dailey, Lauhoff and Mortimer.  It is likewise 
 
         difficult to reconcile Hike and Prewitt with prior agency 
 
         precedents such as Nazarenus v. Oscar Mayer & Co., II Iowa 
 
         Industrial Commissioner Report 281 (App. Dec. 1982) and the 
 
         recent decision Auten v. Celotex Corp., file number 873898 (App. 
 
         Dec. May 22, 1993).  It is noted that Hike and Prewitt were taken 
 
         to judicial review in the district court, reversed and remanded 
 
         for being inconsistent with Lauhoff.  
 
         
 
              It is concluded that the precedents set by the Iowa Supreme 
 
         Court are controlling.  It is therefore concluded that since the 
 
         use of claimant's arms are limited only as a result of the 
 
         impairment of the function of her shoulders, and not from any 
 
         damage or impairment of the arms, that the compensation should be 
 
         determined in accordance with section 85.34(2)(u).  It is an 
 
         injury to the body as a whole, not a scheduled injury.
 
         
 
              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 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         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).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
         (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); 
 
         Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. 
 
         Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) 
 
         A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 218 (1979); 2 Larson 
 
         Workmen's Compensation Law, sections 57.21 and 57.31.
 
         
 
              Marie's current effort at obtaining education in the 
 
         clerical field is certainly prudent.  Were it not for her efforts 
 
         to obtain re-employment and enhance her employability, her 
 
         prospects for obtaining any meaningful replacement employment 
 
         would be quite bleak.  The forecast and projections expressed in 
 
         the Corvel report of July 2, 1993 (ex. 5, pp. 13-16) are 
 
         questionable to come extent.  It is noted that of those jobs 
 
         listed, those entitled housekeeper, duplicating machine operator, 
 
         library assistant and short order cook might exceed the 
 
         restrictions recommended by Dr. Misol.  The three clerk jobs 
 
         could likewise involve lifting which exceeds Dr. Misol's 
 
         restrictions.  Many articles in department stores exceed 20 
 
         pounds in weight and must be lifted and bagged by the cashier or 
 
         sales clerk.  Further, the labor market implications portion of 
 
         the report speaks of the "number of employment opportunities in 
 
         the area of sales, clerical and service..." as showing growth.  
 
         It is well recognized that those areas are certainly experiencing 
 
         growth but those also are areas where a very substantial portion 
 
         of the growth is for part-time jobs.  Marie has lost the ability 
 
         to perform manufacturing jobs.  Her lack of success at obtaining 
 
         replacement employment since the DOT Drug job ended, despite the 
 
         assistance of a vocational consultant, illustrates the difficulty 
 
         Marie is likely to have in obtaining replacement employment which 
 
         provides her a level of annual earnings comparable to that which 
 
         she experienced while she was employed by Reames.  The report 
 
         from Corvel does not address the likelihood of obtaining 
 
         full-time employment.  It does not identify how many of the jobs 
 
         openings that it refers to were part-time, rather than 40-hour 
 
         per week jobs.  It does not address how many of the 40-hour per 
 
         week jobs fall within Marie's physical capabilities.  Where it 
 
         states "positions mentioned earlier would be slightly below this 
 
         mark ($200-$250 weekly)."  It apparently is assuming 40 hours of 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         work per week rather than part-time employment.  It is unknown 
 
         whether claimant will be able to successfully complete that 
 
         training.  Generally speaking, jobs in the sales, clerical and 
 
         service industries do not pay as well as jobs in manufacturing.  
 
         Marie has lost the ability to hold most manufacturing jobs.  The 
 
         mere fact that this injury has required Marie to leave the 
 
         manufacturing field indicates that she has experienced a 
 
         considerable loss of earning capacity.
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
              When all the material factors of industrial disability are 
 
         considered, it is determined that Marie Cluney has experienced a 
 
         40 percent permanent partial disability as a result of her March 
 
         22, 1990 injury.  This entitles her to receive 200 weeks of 
 
         permanent partial disability compensation under the provisions of 
 
         Code section 85.34(2)(u).  
 
         
 
              As stipulated, defendants are liable to pay healing period 
 
         compensation from October 20, 1992 through March 3, 1993, a span 
 
         of 19 3/7 weeks.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         nineteen and three-sevenths (19 3/7) weeks of compensation for 
 
         healing period at the rate of one hundred sixty-one and 52/100 
 
         dollars ($161.52) per week payable commencing October 20, 1992.
 
         
 
              It is further ordered that defendants pay Marie Cluney two 
 
         hundred (200) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred sixty-one and 
 
         52/100 dollars ($161.52) per week payable commencing March 4, 
 
         1993.  
 
         
 
              Defendants shall receive credit for the weekly compensation 
 
         previously paid.  Any accrued, past due amounts shall be paid in 
 
         a lump sum together with interest pursuant to section 85.30.
 
         
 
              It is further ordered that the costs of this action are 
 
         assessed against defendants.
 
         
 
              It is further ordered that defendants file claim activity 
 
         reports as requested by this agency.
 
         
 
              Signed and filed this ____ day of December, 1993.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         West Towers Office Complex 
 
         STE 500
 
         1200 35th St
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Thomas M Plaza
 
         Attorney at Law
 
         701 Pierce St STE 300
 
         PO Box 3086
 
         Sioux City, Iowa  51102-3086
 
         
 
 
            
 
            
 
            
 
            
 
                                          1803.1
 
                                          Filed December 3, 1993
 
                                          Michael G. Trier
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MARIE CLUNEY,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 945696
 
            REAMES FOODS,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            KEMPER GROUP,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Claimant with bilateral shoulder impingement syndrome held 
 
            to have an unscheduled injury.  She was awarded 40 percent 
 
            permanent partial disability.