Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            FRED C. TOMPKINS,     :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 946532
 
            JOHN MORRELL & COMPANY,    :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            NATIONAL UNION FIRE   :
 
            INSURANCE COMPANY,    :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed December 23, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            In determining whether claimant's injury is to the arm or to 
 
            the body as a whole, the medical records must be closely 
 
            examined.  The medical profession often uses the term "upper 
 
            extremity" to refer to the arm and the shoulder as a unit, 
 
            whereas our workers' compensation law compensates an injury 
 
            to the arm only differently than an injury to the arm which 
 
            also affects the shoulder.
 
            In this case, claimant complained of pain extending from the 
 
            arm into the shoulder.  Pain alone is not impairment, and 
 
            the site of the impairment is the controlling factor.  
 
            However, in this case, claimant has also provided medical 
 
            documentation that the injury to his arm has also resulted 
 
            in decreased range of motion for the shoulder and other 
 
            indications of impairment actually extending into the 
 
            shoulder itself.  As the shoulder is a part of the body as a 
 
            whole, claimant is to be compensated industrially under Iowa 
 
            Code section 85.34(2)(u).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803; 1803.1
 
            Filed February 22, 1993
 
            Byron K. Orton
 
            HJW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            FRED C. TOMPKINS,     :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 946532
 
            JOHN MORRELL & COMPANY,    :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            NATIONAL UNION FIRE   :
 
            INSURANCE COMPANY,    :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803; 1803.1
 
            Claimant's condition consisting of hand, arm and shoulder 
 
            symptoms found to extend to the body as a whole even though 
 
            physicians' ratings were to the upper extremity.  Lauhoff 
 
            Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) followed in 
 
            that disability in the form of actual impairment to the body 
 
            as a whole was found, thereby permitting shoulder condition 
 
            to be rated industrially.
 
            Claimant, 31-year-old packinghouse worker who had completed 
 
            ninth grade and had apparent learning disability as well as 
 
            at least average intelligence and who remained employed in 
 
            light-duty work with defendants, awarded 15 percent 
 
            permanent partial disability.  Claimant was precluded from 
 
            heavy manual labor; had a permanent partial impairment of 
 
            three percent of the body as a whole; and, had gone from a 5 
 
            bracket to a 3 bracket job in the plant as a result of his 
 
            injury and light-duty restrictions.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRED C. TOMPKINS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 946532
 
                                          :
 
            JOHN MORRELL & COMPANY,       :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Fred C. Tompkins, against his employer, John 
 
            Morrell & Company, and its insurance carrier, National Union 
 
            Fire Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury of 
 
            January 5, 1989.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner at Sioux City, 
 
            Iowa, on November 5, 1991.  A first report of injury has 
 
            been filed.
 
            
 
                 The record in this case consists of joint exhibits 1 
 
            through 46 as well as of the testimony of claimant.
 
            
 
                                      issues
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report and the oral stipulations of the parties 
 
            at hearing, the parties stipulated that claimant did receive 
 
            an injury arising out of and in the course of his employment 
 
            on January 5, 1989, and that that injury bore a causal 
 
            relationship to a period of temporary total or healing 
 
            period disability running from March 20, 1990, through July 
 
            29, 1990.  The parties further agreed that defendants have 
 
            paid claimant temporary total disability benefits for 18.6 
 
            weeks at the rate of $227.24.  The parties further agreed 
 
            that, at time of injury, claimant was a married gentleman 
 
            entitled to four exemptions having a gross weekly wage of 
 
            $342.45 and therefore entitled to a weekly rate of 
 
            compensation of $227.24.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether a causal relationship exists between 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant's injury and claimed permanent partial disability; 
 
            and,
 
            
 
                 2.  The nature and extent of any permanent benefit 
 
            entitlement, including the related issue of whether claimant 
 
            is entitled to scheduled member or industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 32-year-old right-handed gentleman.  
 
            Claimant has completed ninth grade and has no GED.  He 
 
            characterized himself as taking special education courses 
 
            and not passing all grades and as having limited reading and 
 
            writing abilities.  Claimant orally read interrogatory 
 
            answers at hearing.  He stumbled somewhat in so doing, but 
 
            did not appear to be altogether lacking in proficiency or 
 
            ability to comprehend the written word.  Claimant apparently 
 
            also has strong auditory skills in that he was able to 
 
            discuss his job duties and his understanding of his medical 
 
            condition cogently.
 
            
 
                 Claimant's primary work history is in the packinghouse 
 
            industry.  He has been employed at John Morrell since 1981.  
 
            On January 5, 1989, claimant was boning feather bones and 
 
            pin bones.  Claimant described this as involving repeatedly 
 
            cutting to the right and flipping over and cutting inward to 
 
            the left.  His right thumb and fingers began to turn blue 
 
            and numb; he experienced night awakening.  He was unable to 
 
            hold a knife.  He began to experience neck problems, sharp 
 
            shoulder joint pain and headaches.  The company referred 
 
            claimant to apparently D. Youngblade, M.D., who noted 
 
            swelling in the dorsum of the right wrist as well as 
 
            apparently swelling and tenderness and pain in the palmar 
 
            right hand.  Dr. Youngblade diagnosed tendonitis of the 
 
            right forearm, prescribed anti-inflammatories and hand 
 
            splints.  He restricted claimant from knife work as well as 
 
            from grasping, fine manipulations and from lifting more than 
 
            ten pounds on an occasional basis.
 
            
 
                 On light duty, claimant did forklift driving, painting 
 
            and "junk pickup."  He stated his condition worsened and he 
 
            subsequently saw Alan Pechacek, M.D., who took him off work 
 
            from March 20, 1990, through July 29, 1990, while keeping 
 
            him in a brace and anti-inflammatories.
 
            
 
                 Claimant has seen A. K. Agarwal, M.D., for evaluation; 
 
            John J. Dougherty, M.D., for evaluation; and, Pat Luse, 
 
            D.C., for evaluation.  Claimant saw each of the aforenamed 
 
            physicians one time only.
 
            
 
                 Per Dr. Pechacek's release, claimant returned to 
 
            light-duty work on July 30, 1990, with the same restrictions 
 
            as he had previously had.  Initially, claimant scooped dry 
 
            ice left-handed for approximately two months.  He was able 
 
            to do that job.  Claimant then began traying chops, the job 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            he had at time of hearing.  He places one ounce chops on a 
 
            tray with three chops to the tray.  Claimant reports he can 
 
            continue to do this job, although his shoulder and neck pain 
 
            and headaches continue.  Claimant trays chops on Wednesdays 
 
            only.  At other times, he floats.  As a floater, he has 
 
            driven a Bobcat to haul dead hogs and for snow removal; fed 
 
            the vac pac machine; assisted in general cleanup; watched 
 
            tenderloins be [automatedly] boxed; cut loins with a 
 
            straight knife; and, basketed tenderloins.
 
            
 
                 The boning position claimant held at time of injury was 
 
            a 5 bracket job.  His current job is a 3 bracket job.  Each 
 
            bracket equals $.05.
 
            
 
                 Claimant reported that lifting, overhead lifting, 
 
            squeezing and grasping all increase his right shoulder pain.  
 
            He indicated that he can no longer play ball, ride bike or 
 
            play with his children.  His hand cramps and falls asleep; 
 
            he can throw a ball and use a hammer only for short periods.  
 
            Claimant reported headaches with a lot of lifting.  Medical 
 
            reports do not substantiate a history of headaches, however.  
 
            Claimant is no longer on prescription medications but 
 
            testified he takes aspirin every day.  Claimant's current 
 
            wage is $8.60 per hour.  He agreed that he was earning less 
 
            than $8.60 per hour in January 1989.
 
            
 
                 In an office visit of June 1, 1990, Dr. Pechacek stated 
 
            that, in spite of claimant's not working, claimant continued 
 
            to have symptoms in his right shoulder, arm and hand.  
 
            Claimant reported shoulder pain if he raised and moved his 
 
            shoulder.  Claimant felt stiffness and tightness in the 
 
            forearm, wrist, hand and thumb and experienced numbness and 
 
            tingling of the hand with persistent gripping.  On 
 
            examination, claimant had tenderness in the posterior margin 
 
            of the acromion extending around laterally in the shoulder.  
 
            He did not have AC joint tenderness and had full range of 
 
            motion in the shoulder on forward elevation, lateral 
 
            elevation, extension, rotation and abduction.  Claimant did 
 
            have periodic crepitation of the shoulder when elevated and 
 
            when bringing the shoulder down with associated pain.  
 
            Claimant had some mild induration on the dorsum of the 
 
            forearm with local tenderness; he had normal elbow range of 
 
            motion.  Wrist motion was normal in flexion, extension, 
 
            radial and ulnar deviation.  Claimant had no particular 
 
            weakness on grip strength, abduction of the fingers or pinch 
 
            between the thumb or index fingers.  Sensory examination to 
 
            pinwheel was generally intact.  Tinel's and Phelan's signs 
 
            were both negative.  Dr. Pechacek's impression was that 
 
            claimant probably had some mild rotator cuff tendonitis with 
 
            impingement as well as musculotendonitis involving the 
 
            forearm, wrist, hand and fingers as well as some symptoms 
 
            consistent with carpal tunnel syndrome, but with no 
 
            definable neurologic deficit.  The doctor then stated, 
 
            "Although none of his problems is particularly severe, he 
 
            does have recurrence of symptoms with use of his shoulder, 
 
            arm, and hand.  The cumulative effect of all of these 
 
            problems is that he really can't do much in the way of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            packing house work."
 
            
 
                 On June 4, 1990, Dr. Pechacek advised that, in spite of 
 
            all of claimant's symptoms and complaints and difficulties 
 
            in using his arm and hand, he had no definable loss of 
 
            motion in any joint and no definable neurologic deficits for 
 
            which an impairment rating could be given under the AMA 
 
            Guides to the Evaluation of Permanent Impairment, Third 
 
            Edition.  The doctor then stated:
 
            
 
                 He does have some functional disabilities as it 
 
                 regards the use of his right upper extremity.  
 
                 These are mainly in the form of restrictions, or 
 
                 things that he should avoid doing with his right 
 
                 arm or hand.  He should avoid continuous and/or 
 
                 repetitive motion and use of the right arm and 
 
                 hand.  He should avoid continuous and/or 
 
                 repetitive gripping and squeezing with the right 
 
                 hand and fingers.  He should avoid moderate to 
 
                 heavy work activities with his right arm that 
 
                 involve lifting, carrying, pushing, or pulling.  
 
                 He should avoid work activities with his arm at or 
 
                 above shoulder level.  Unfortunately, there is no 
 
                 way that I know of to put this in a percentage 
 
                 form.
 
            
 
            (Joint exhibit 33, page 1).
 
            
 
                 A. K. Agarwal, M.D., examined claimant on June 25, 
 
            1990.  He found normal biceps and triceps reflexes, no motor 
 
            or sensory losses as well as full range of motion and 
 
            minimal tenderness in the right shoulder joint.  He found 
 
            the right hand positive for Tinel's sign, wrist flexion 
 
            tests positive, and some diminished sensation along the 
 
            median nerve distribution.  His impression was of mild 
 
            shoulder tendonitis and possible mild carpal tunnel 
 
            syndrome, although EMG studies had been negative.  The 
 
            doctor opined that claimant had a five percent permanent 
 
            "disability" and loss of physical function of the right 
 
            upper extremity based on the evaluation of the shoulder and 
 
            wrist pain and minimal clinical findings.
 
            
 
                 John J. Dougherty, M.D., examined claimant on August 
 
            23, 1991.  His findings are generally consistent with those 
 
            of Drs. Pechacek and Agarwal, although he opined that 
 
            claimant did not seem to have a carpal tunnel syndrome.  He 
 
            noted pain in the right shoulder with possible impingement 
 
            type syndrome, tendonitis.  The doctor opined that 
 
            claimant's only permanent impairment was apparently 
 
            associated with pain when doing something and that such 
 
            would not be more than five percent permanent partial 
 
            impairment of the right upper extremity.  He then noted:  
 
            "[Permanent partial impairment] is primarily associated with 
 
            continued complaints of pain with reference to the right 
 
            shoulder, although his range of motion is good."  (Exhibit 
 
            42, page 4).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Pat Luse, D.C., examined claimant on May 1, 1991.  His 
 
            diagnosis was of chronic right shoulder tendonitis with 
 
            crepitation; chronic right carpal tunnel syndrome; and 
 
            tremor in the right upper extremity, apparently related to 
 
            the other two conditions.  The doctor opined that claimant 
 
            did receive an injury as a result of his repetitive motion 
 
            work.  The doctor assessed an impairment rating as follows:
 
            
 
                 Sensory impairment rating:
 
                 1.  Median
 
                     40 x 25% (grade) = 9% impairment to the hand
 
            
 
                 Range of Motion Evaluation:  (given in degrees)
 
            
 
                 Extremities
 
                 Flexion                    170 degrees = 0%
 
                 Extension                   40 degrees = 1%
 
                 Abduction                  180 degrees = 0%
 
                 Adduction                   40 degrees = 0%
 
                 External Rotation           90 degrees = 0%
 
                 Internal Rotation           90 degrees = 0%
 
            
 
                 Other
 
            
 
                 Right shoulder crepitation moderate and constant during
 
                 range of motion
 
                 20% x 60 (shoulder) = 12% upper extremity.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 SUMMARY
 
            
 
                 Total impairment to the right upper extremity = 21%.
 
            
 
                 Total impairment to the whole person = 13%.
 
            
 
                 Dr. Luse indicated that his impairment rating standard 
 
            for muscle grades was the Manual of Orthopedic Surgery and 
 
            that his standard for other evaluations and values was the 
 
            Guides to the Evaluation of Permanent Impairment, American 
 
            Medical Association, Third Edition.
 
            
 
                 It is expressly found that whether claimant has carpal 
 
            tunnel syndrome is unconfirmed, although he has symptoms 
 
            and, on occasion, objective findings consistent with that 
 
            condition.  It is also expressly found that claimant has 
 
            mild shoulder tendonitis with a possible impingement 
 
            syndrome.  It is also expressly found that each doctor 
 
            rendering an impairment rating relates such to claimant's 
 
            shoulder condition or shoulder pain, even when the rating is 
 
            assigned as an upper extremity rating.  Further, claimant's 
 
            restrictions, especially restrictions of not lifting above 
 
            the shoulder, are consistent with a disabling condition in 
 
            the shoulder.  It is expressly found that claimant has a 
 
            shoulder condition which has produced functional impairment 
 
            in the shoulder and disability into the body as a whole.
 
            
 
                                conclusions of law
 
            
 
                 Our first consideration is whether claimant has 
 
            established a causal relationship between his work injury 
 
            and claimed permanent disability.
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 All physicians by history relate claimant's hand, 
 
            wrist, arm and shoulder complaints to his work.  
 
            Chiropractic physician Luse expressly relates claimant's 
 
            physical conditions to his work.  Claimant has established 
 
            the requisite causal connection between his cumulative 
 
            trauma with an injury date of January 5, 1989, and his 
 
            current right upper extremity and shoulder complaints.
 
            
 
                 We reach the fighting issue between the parties, the 
 
            nature of claimant's disability and the extent of such 
 
            disability.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 When disabi         whole in the shoulder by way of tendonitis, possible 
 
            impingement syndrome and pain.  Given the presence of the 
 
            former two impairments, we need not reach defendants' 
 
            argument that pain alone would be insufficient to establish 
 
            impairment in the shoulder as a body as a whole injury.  
 
            Claimant's possible impingement syndrome and his recorded 
 
            tendonitis of the right shoulder are the primary factors 
 
            restricting his physical functioning and bearing on his 
 
            permanent partial impairment rating.  Those conditions 
 
            demonstrate an actual impairment to the body as a whole.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            Claimant's disability, therefore, must be evaluated 
 
            industrially.
 
            
 
                 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).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Both Dr. Agarwal and Dr. Dougherty assign claimant a 
 
            five percent permanent partial impairment of the upper 
 
            extremity.  Dr. Pechacek assigns no impairment in that he 
 
            does not believe one is possible under the AMA guides.  Dr. 
 
            Luse assigns an impairment of 23 percent of the upper 
 
            extremity or 13 percent of the body as a whole.  The 
 
            identical impairment ratings of Dr. Agarwal and Dr. 
 
            Dougherty are based on their similar objective findings on 
 
            evaluation of claimant.  Dr. Pechacek's restrictions on 
 
            claimant appear to be restrictions that would be consistent 
 
            with the five percent permanent partial impairment rating to 
 
            the upper extremity assigned by Drs. Dougherty and Agarwal.  
 
            Dr. Luse's impairment rating is sufficiently inconsistent 
 
            with the ratings of other physicians to be suspect as 
 
            reflective of claimant's actual permanent partial 
 
            impairment.  A five percent permanent partial impairment of 
 
            the upper extremity converts to a three percent permanent 
 
            partial impairment of the body as a whole.  Claimant's 
 
            actual functional impairment on account of his work injury 
 
            is therefore minimal.  Unfortunately, claimant's work 
 
            history is as a manual laborer and the record suggests, 
 
            given his limited education, his difficulties with reading 
 
            and writing, that those are the fields for which he is most 
 
            qualified.  On the other hand, claimant's demeanor at 
 
            hearing, his reading skill level at hearing and his 
 
            articulateness at hearing suggests that claimant's problems 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            in those areas relate more to a learning disability than to 
 
            an intellectual deficit.  Claimant is a younger worker at 31 
 
            and it might well be in his own best interests if he were to 
 
            avail himself of programs currently available to assist the 
 
            learning disabled.  Should he do so, one suspects that his 
 
            capacity for retraining into nonmanual labor fields would be 
 
            greatly increased.  Claimant appears motivated to continue 
 
            to work in a light-duty capacity and the employer has 
 
            provided him with work within his restrictions.  
 
            Additionally, claimant's restrictions on lifting, grasping, 
 
            above shoulder lifting and reaching and on knife work are 
 
            sufficiently severe that they preclude him from much work, 
 
            both within defendants' facility and within the greater job 
 
            market.  Additionally, while claimant is apparently making 
 
            more at this time than he in fact made in January 1989, 
 
            claimant is now working at a 3 bracket and not a 5 bracket 
 
            job.  That fact suggests that, had not claimant sustained 
 
            his injury and not been restricted from working in knife 
 
            jobs on account of that injury, claimant would be earning 
 
            more now than he currently is earning.  Further, claimant 
 
            has a loss of job mobility on a    Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 1803.1
 
                                               Filed December 23, 1991
 
                                               HELENJEAN M. WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRED C. TOMPKINS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 946532
 
                                          :
 
            JOHN MORRELL & COMPANY,       :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803; 1803.1
 
            Claimant's condition consisting of hand, arm and shoulder 
 
            symptoms found to extend to the body as a whole even though 
 
            physicians' ratings were to the upper extremity.  Lauhoff 
 
            Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) followed in 
 
            that disability in the form of actual impairment to the body 
 
            as a whole was found, thereby permitting shoulder condition 
 
            to be rated industrially.
 
            Claimant, 31-year-old packinghouse worker who had completed 
 
            ninth grade and had apparent learning disability as well as 
 
            at least average intelligence and who remained employed in 
 
            light-duty work with defendants, awarded 15 percent 
 
            permanent partial disability.  Claimant was precluded from 
 
            heavy manual labor; had a permanent partial impairment of 
 
            three percent of the body as a whole; and, had gone from a 5 
 
            bracket to a 3 bracket job in the plant as a result of his 
 
            injury and light-duty restrictions.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            RAYMOND LeDOUX, JR.,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 946600
 
            XERXES CORPORATION,   
 
                                                    A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            CRUM & FORSTER,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                   ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised by defendants on appeal 
 
            are:  "The deputy erred in ruling that claimant sustained 
 
            his burden of proving a work-related injury."
 
            Claimant states the following issues on cross-appeal:
 
            I.  Did LeDoux's injury arise out of and in the course of 
 
            employment?
 
            II. Does LeDoux suffer an industrial disability, and if so 
 
            does the Odd Lot Doctrine apply?
 
            III. Should penalty benefits be granted?
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed December 24, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            *****
 
            Claimant worked for Xerxes from June 1988 until he was laid 
 
            off on August 1, 1989.  His duties consisted of manual labor 
 
            in the assembly of fiber glass underground storage tanks.  
 
            At the time of the alleged injury, claimant was using fiber 
 
            glass resin and cloth to secure together large tank 
 
            sections.  Heavy manual labor, including pushing and 
 
            lifting, was required along with crawling into the tanks 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            through a 22 inch hole.  Claimant was on a quota requiring 
 
            the completion of a tank every 16 hours of work.
 
            On or about July 11, 1989, claimant injured his low back 
 
            while climbing into one of the tanks through the 22 inch 
 
            hole.  Claimant slipped and fell onto his back after which 
 
            low back pain ensued.  Claimant said that he reported the 
 
            injury to his supervisor and told him he was going to see 
 
            Otto Kruse, M.D., the next day.  Dr. Kruse is the company 
 
            physician.  Claimant indeed saw Dr. Kruse on July 12, 1989 
 
            complaining of back pain.  Dr. Kruse did not mention any 
 
            precipitating cause in his office records.  Dr. Kruse 
 
            referred claimant to an orthopedic surgeon, William 
 
            Pontarelli, M.D.
 
            
 
            Defendants dispute the injury and management representatives 
 
            testified at hearing that they did not learn of the claim of 
 
            injury until there was a claim for benefits.  However, 
 
            claimant's report to his supervisor and his immediate 
 
            treatment by the company physician is uncontroverted.  ***** 
 
            This injury arose out of and in the course of claimant's 
 
            employment with Xerxes.
 
            
 
            Upon his examination of claimant, Dr. Pontarelli diagnosed 
 
            that claimant was suffering from a preexisting condition of 
 
            spondylolisthesis (hereinafter referred to as spondy), a 
 
            condition which causes instability of the L5 vertebra.  
 
            Treatment has, to date, remained conservative.  However, 
 
            physicians have indicated that claimant may be a surgical 
 
            candidate in the future.  After treatment, claimant was 
 
            released by Dr. Pontarelli to return to work on August 1, 
 
            1989 but only with activity restrictions against working in 
 
            a prolonged flexed or twisted position; against repetitive 
 
            lifting more than 20 times per day; and, against lifting 
 
            more than 20-25 pounds.  It is found that claimant was then 
 
            laid off by Xerxes due to these work restrictions.  Claimant 
 
            was told several times since that he could return to work 
 
            only if the restrictions were lifted.
 
            
 
            The work injury of July 11, 1989 is found to be a cause of 
 
            an eight percent permanent impairment to the body as a 
 
            whole.  ***** This work injury was also a cause of the work 
 
            restrictions imposed by Dr. Pontarelli.  Dr. Pontarelli's 
 
            views as to the nature and extent of the spondy condition is 
 
            uncontroverted.  With reference to causation, the finding of 
 
            work-relatedness is based upon the views of Dr. Pontarelli, 
 
            the primary treating physician and those of Richard Neiman, 
 
            a neurologist.  Both stated that although the spondy 
 
            condition was preexisting, the work injury made the 
 
            condition symptomatic and necessitated work restrictions. 
 
            These views outweigh the views of another orthopedic 
 
            surgeon, Daniel McQuire, M.D., who stated that he could not 
 
            assign a permanent rating as a result of the July 11, 1989 
 
            injury.  Dr. McQuire's deposition testimony was unconvincing 
 
            as he continually rambled in a confusing manner rather than 
 
            clearly and specifically answer the questions posed.
 
            Claimant's current work restrictions prevent him from 
 
            returning to his former work or any other heavy manual labor 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            work.  Heavy manual labor is the type of work for which 
 
            claimant is best suited.  Although claimant was able to 
 
            graduate from high school, he has a serious learning 
 
            disability adversely affecting his ability to read and 
 
            write.  Claimant's only past work experience has been as a 
 
            dishwasher, stock clerk and carryout clerk in a grocery 
 
            store.  Claimant is young at age 28 but his ability to adapt 
 
            to his disability is quite limited.  Claimant has made a 
 
            considerable effort to secure replacement employment but 
 
            without success.  Xerxes has refused to re-employ claimant 
 
            in his reduced capacity condition.  This is clear evidence 
 
            of a substantial disability.  Vocational counselors retained 
 
            in this case state that although claimant is not totally 
 
            disabled, his access to the labor market due to the activity 
 
            restrictions and his learning disability is severely 
 
            restricted.
 
            
 
            From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of July 11, 
 
            1989 was a cause of a 75 percent loss of earning capacity.  
 
            The reliance upon the views of Dr. McQuire in denying the 
 
            claims was reasonable. *****
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed December 24, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
              
 
              I.  Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising out 
 
            of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury. see generally, Cedar Rapids, Comm. Sch. Dist. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).
 
            In the case sub judice, claimant demonstrated by his 
 
            credible and uncontroverted testimony the work injury as 
 
            alleged.
 
             II.  As the claimant has shown that the work injury was a 
 
            cause a permanent physical impairment or limitation upon 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member 
 
            disabilities, the degree of disability under this provision 
 
            is not measured solely by the extent of a functional 
 
            impairment or loss of use of a body member.  A disability to 
 
            the body as a whole or an "industrial disability" is a loss 
 
            of earning capacity resulting from the work injury.  
 
            Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 
 
            N.W. 899 (1935).  A physical impairment or restriction on 
 
            work activity may or may not result in such a loss of 
 
            earning capacity.  Examination of several factors determines 
 
            the extent to which a work injury and a resulting medical 
 
            condition caused an industrial disability.  These factors 
 
            include the employee's medical condition prior to the 
 
            injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            [Claimant is not an odd-lot employee.  The vocational 
 
            rehabilitation evidence shows that claimant is capable of 
 
            performing some jobs.  However, claimant's learning 
 
            disability does limit the number of positions claimant could 
 
            qualify for.
 
            
 
            Claimant is relatively young at age 28.  He has shown good 
 
            motivation to return to work.  His employer has failed to 
 
            re-hire him due to the restrictions from the work injury.  
 
            Claimant's loss of earning capacity is 75 percent.]  ***** 
 
            Such a finding entitles claimant to 375 weeks of permanent 
 
            partial disability benefits as a matter of law under Iowa 
 
            Code section 85.34(2)(u) which is 75 percent of 500 weeks, 
 
            the maximum allowable number of weeks for an injury to the 
 
            body as a whole in that subsection. 
 
            
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
            In the case at bar, the party's stipulations rendered an 
 
            award of the requested expenses automatically due to the 
 
            finding that the condition upon which the claim was based 
 
            was work related.
 
             IV.  Iowa code section 86.13, allows for an award of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            penalty benefits for an unreasonable denial of a claim.  In 
 
            this case, the initial diagnosis was spondy, a condition 
 
            unrelated to work.  We also have a physician who supports 
 
            defendants' denial of benefits, Dr. McQuire.  [Although Dr. 
 
            McQuire's opinion was rendered late in this case, it was 
 
            fairly debatable at all stages of the case whether 
 
            claimant's preexisting back condition was responsible for 
 
            his current condition, or whether the current condition was 
 
            caused by a work injury.]  Therefore, claimant has not shown 
 
            entitlement to penalty benefits.
 
            [Claimant's prior back condition was latent and did not 
 
            result in prior disability.  Claimant's back did not produce 
 
            disability until his work injury and the resulting 
 
            restrictions.  Apportionment is not appropriate.]
 
            
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
            ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants shall pay to claimant three hundred 
 
            seventy-five (375) weeks of permanent partial disability 
 
            benefits at a rate of one hundred fifty-two and 98/l00 
 
            dollars ($152.98) per week from August 1, 1989.
 
            
 
            That defendants shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 
            these expenses paid by him.  Otherwise, defendants shall pay 
 
            the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            
 
            Defendants shall pay all other costs, including 
 
            reimbursement to claimant for any filing fee paid in this 
 
            matter.
 
            
 
            That defendants shall file activity reports on the payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
            Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ________________________________
 
                                                   BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave. SW, Suite 114
 
            Cedar Rapids, Iowa  52404
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street, Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed June 30, 1993
 
                                                 Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RAYMOND LeDOUX, JR.,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 946600
 
            XERXES CORPORATION,   
 
                                                      A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            CRUM & FORSTER,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND LeDOUX, JR.,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946600
 
            XERXES CORPORATION,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Raymond 
 
            Ledoux, Jr., claimant, against Xerxes Corporation, employer, 
 
            hereinafter referred to as Xerxes, and Crum & Forster, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on July 12, 1989.  
 
            On October 29, 1992, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.  At hearing the alleged injury 
 
            date was amended without objection to July 11, 1989.
 
            
 
                 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.  An employee-employer relationship existed between 
 
            claimant and Xerxes at the time of the alleged injury.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            or healing period benefits in this proceeding.
 
            
 
                 3.  If an injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of August 1, 1989.
 
            
 
                 5.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $226.31; he was married; and he was 
 
            entitled to two exemptions.  Therefore, claimant's weekly 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            rate of compensation is $152.98 according to the Industrial 
 
            Commissioner's published rate booklet for this injury. 
 
            
 
                 6.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their reason
 
            ableness and defendants are not offering contrary evidence.  
 
            It was also agreed that the medical bills submitted by 
 
            claimant at the hearing are causally connected to the medi
 
            cal condition upon which the claim herein is based but that 
 
            the issue of their causal connection to any work injury 
 
            remains an issue to be decided herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                  IV.  The extent of penalty benefits to which claimant 
 
            may be entitled.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor (voice, gestures, expres
 
            sions, etc.) while testifying, claimant is found credible.
 
            
 
                 Claimant worked for Xerxes from June 1988 until he was 
 
            laid off on August 1, 1989.  His duties consisted of manual 
 
            labor in the assembly of fiber glass underground storage 
 
            tanks.  At the time of the alleged injury, claimant was 
 
            using fiber glass resin and cloth to secure together large 
 
            tank sections.  Heavy manual labor, including pushing and 
 
            lifting, was required along with crawling into the tanks 
 
            through a 22 inch hole.  Claimant was on a quota requiring 
 
            the completion of a tank every 16 hours of work.
 
            
 
                 On or about July 11, 1989, claimant injured his low 
 
            back while climbing into one of the tanks through the 22 
 
            inch hole.  Claimant slipped and fell onto his back after 
 
            which low back pain ensued.  Claimant said that he reported 
 
            the injury to his supervisor and told him he was going to 
 
            see Otto Kruse, M.D., the next day.  Dr. Kruse is the com
 
            pany physician.  Claimant indeed saw Dr. Kruse on July 12, 
 
            1989 complaining of back pain.  Dr. Kruse did not mention 
 
            any precipitating cause in his office records.  Dr. Kruse 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            referred claimant to an orthopedic surgeon, William 
 
            Pontarelli, M.D.
 
            
 
                 Defendants dispute the injury and management represen
 
            tatives testified at hearing that they did not learn of the 
 
            claim of injury until there was a claim for benefits.  
 
            However, claimant's report to his supervisor and his immedi
 
            ate treatment by the company physician is uncontroverted.  
 
            Given claimant's credibility, a work injury was found to 
 
            have occurred.  This injury arose out of and in the course 
 
            of claimant's employment with Xerxes.
 
            
 
                 Upon his examination of claimant, Dr. Pontarelli diag
 
            nosed that claimant was suffering from a pre-existing condi
 
            tion of spondylolisthesis (hereinafter referred to as 
 
            spondy), a condition which causes instability of the L5 ver
 
            tebra.  Treatment has, to date, remained conservative.  How
 
            ever, physicians have indicated that claimant may be a 
 
            surgical candidate in the future.  After treatment, claimant 
 
            was released by Dr. Pontarelli to return to work on August 
 
            1, 1989 but only with activity restrictions against working 
 
            in a prolonged flexed or twisted position; against repeti
 
            tive lifting more than 20 times per day; and, against lift
 
            ing more than 20-25 pounds.  It is found that claimant was 
 
            then laid off by Xerxes due to these work restrictions.  
 
            Claimant was told several times since that he could return 
 
            to work only if the restrictions were lifted.
 
            
 
                 The work injury of July 11, 1989 is found to be a cause 
 
            of an eight percent permanent impairment to the body as a 
 
            whole.  However, what is more important to an industrial 
 
            disability case is that this work injury was also a cause of 
 
            the work restrictions imposed by Dr. Pontarelli.  Dr. 
 
            Pontarelli's views as to the nature and extent of the spondy 
 
            condition is uncontroverted.  With reference to causation, 
 
            the finding of work-relatedness is based upon the views of 
 
            Dr. Pontarelli, the primary treating physician and those of 
 
            Richard Neiman, a neurologist.  Both stated that although 
 
            the spondy condition was pre-existing, the work injury made 
 
            the condition symptomatic and necessitated work restric
 
            tions. These views outweigh the views of another orthopedic 
 
            surgeon, Daniel McQuire, M.D., who stated that he could not 
 
            assign a permanent rating as a result of the July 11, 1989 
 
            injury.  Dr. McQuire's deposition testimony was unconvincing 
 
            as he continually rambled in a confusing manner rather than 
 
            clearly and specifically answer the questions posed.
 
            
 
                 Claimant's current work restrictions prevent him from 
 
            returning to his former work or any other heavy manual labor 
 
            work.  Heavy manual labor is the type of work for which 
 
            claimant is best suited.  Although claimant was able to 
 
            graduate from high school, he has a serious learning dis
 
            ability adversely affecting his ability to read and write.  
 
            Claimant's only past work experience has been as a dish
 
            washer, stock clerk and carryout clerk in a grocery store.  
 
            Claimant is young at age 28 but his ability to adapt to his 
 
            disability is quite limited.  Claimant has made a consider
 
            able effort to secure replacement employment but without 
 
            success.  Xerxes has refused to reemploy claimant in his 
 
            reduced capacity condition.  This is clear evidence of a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            substantial disability.  Vocational counselors retained in 
 
            this case state that although claimant is not totally dis
 
            abled, his access to the labor market due to the activity 
 
            restrictions and his learning disability is severely 
 
            restricted.
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of July 11, 
 
            1989 was a cause of a 75 percent loss of earning capacity.  
 
            
 
                 The reliance upon the views of Dr. McQuire in denying 
 
            the claims was reasonable and not a negligent claims prac
 
            tice given the diagnosis of spondy as the cause.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            arising out of and in the course of employment.  The words 
 
            "out of" refer to the cause or source of the injury.  The 
 
            words "in the course of" refer to the time and place and 
 
            circumstances of the injury. see generally, Cedar Rapids, 
 
            Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe 
 
            v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments. A work connected injury which 
 
            more than slightly aggravates the condition is considered to 
 
            be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).
 
            
 
                 In the case sub judice, claimant demonstrated by his 
 
            credible and uncontroverted testimony the work injury as 
 
            alleged.
 
            
 
                  II.  As the claimant has shown that the work injury 
 
            was a cause a permanent physical impairment or limitation 
 
            upon activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member dis
 
            abilities, the degree of disability under this provision is 
 
            not measured solely by the extent of a functional impairment 
 
            or loss of use of a body member.  A disability to the body 
 
            as a whole or an "industrial disability" is a loss of earn
 
            ing capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work activ
 
            ity may or may not result in such a loss of earning capac
 
            ity.  Examination of several factors determines the extent 
 
            to which a work injury and a resulting medical condition 
 
            caused an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985).
 
            
 
                 In the case sub judice, the odd lot doctrine was not 
 
            raised.  It was found that claimant suffered a 75 percent 
 
            loss of his earning capacity as a result of the work injury.  
 
            Such a finding entitles claimant to 375 weeks of permanent 
 
            partial disability benefits as a matter of law under Iowa 
 
            Code section 85.34(2)(u) which is 75 percent of 500 weeks, 
 
            the maximum allowable number of weeks for an injury to the 
 
            body as a whole in that subsection. 
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            In the case at bar, the party's stipulations rendered an 
 
            award of the requested expenses automatically due to the 
 
            finding that the condition upon which the claim was based 
 
            was work-related.
 
            
 
                  IV.  Iowa code section 86.13, allows for an award of 
 
            penalty benefits for an unreasonable denial of a claim.  In 
 
            this case, the initial diagnosis was spondy, a condition 
 
            unrelated to work.  We also have a physician who supports 
 
            defendants' denial of benefits, Dr. McQuire.  Therefore, 
 
            claimant has not shown entitlement to penalty benefits.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant three hundred 
 
            seventy-five (375) weeks of permanent partial disability 
 
            benefits at a rate of one hundred fifty-two and 98/l00 
 
            dollars ($152.98) per week from August 1, 1989.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW
 
            Suite 114
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street  Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 24, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND LeDOUX, JR.,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946600
 
            XERXES CORPORATION,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS R. KEIL,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 951320
 
            vs.                           :                 946624
 
                                          :
 
            BRITWELL, INC., d/b/a         :
 
            ATLANTIC CARE CENTER,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on January 27, 1992, at 
 
            Council Bluffs, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks temporary permanent disability 
 
            benefits and medical benefits.  Any issue as to the extent 
 
            of permanent partial disability benefits has been 
 
            bifurcated.  The alleged injuries occurred on October 28, 
 
            1989 and February 4, 1990.  The record in the proceedings 
 
            consists of the testimony of the claimant; Roberta Keil, 
 
            claimant's mother; Marylyn Cooley; Clara Peterson; and, 
 
            joint exhibits 1 through 34.
 
            
 
                                      issues
 
            
 
                 The issues for resolution as to both cases are:
 
            
 
                 1.  Whether an injury arose out of and in the course of 
 
            claimant's employment;
 
            
 
                 2.  Whether there is any causal connection as to 
 
            claimant's temporary permanent disability and the respective 
 
            injuries;
 
            
 
                 3.  Whether claimant is entitled to 85.27 benefits.  In 
 
            particular, causal connection.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 24-year-old high school graduate who 
 
            indicated he was a slow learner in school and went to a 
 
            special resource center.  He related his work history.  
 
            Because the issue of permanent disability has been 
 
            bifurcated, the undersigned will not go into detail on facts 
 
            that will be pertinent to that issue unless otherwise 
 
            necessary.
 
            
 
                 After going to the vocational rehabilitation center in 
 
            Des Moines in the spring of 1986 because of having a hard 
 
            time finding a job, claimant was placed with defendant 
 
            employer and worked as a dishwasher, helped serve meals and 
 
            cleaned up after meals.
 
            
 
                 Claimant related he had back, leg and knee problems in 
 
            1985 which resulted from his work as a janitor, but he 
 
            contends it was nothing serious.
 
            
 
                 Claimant related an incident in September of 1986 in 
 
            which he hurt his lower back and received one month of 
 
            workers' compensation.  He said he received no permanent 
 
            partial disability benefits as a result of that injury.
 
            
 
                 Claimant was eventually moved from a dishwasher 
 
            position to a position of a dietary aide.  Joint exhibit 22 
 
            sets out the job description.  Joint exhibits 20 and 21 set 
 
            out the tasks involved with that job.
 
            
 
                 Claimant testified that on October 28, 1989, while at 
 
            work serving the residents their meals, a patient pushed a 
 
            chair into claimant's low back causing pain.  He said a 
 
            nurse saw the incident but he told no one on October 28, 
 
            1989 because of fear of losing his job.  After work, he went 
 
            to his mother's house and had a back spasm and fell down.   
 
            He was taken to the hospital by ambulance and was treated by 
 
            a doctor.  He returned to work one week later on November 7, 
 
            1988.  Joint exhibit 24 is the actual report signed by 
 
            Marylyn Cooley, claimant's supervisor.  It indicated on page 
 
            2 of the report that she talked to claimant's mother who 
 
            told her claimant's hospitalization was due to stress rather 
 
            than an injury.
 
            
 
                 On February 4, 1990, claimant said he went to the 
 
            storeroom to get a carton of eggnog.  He bent over to get it 
 
            and then stood back up and started walking out of the room 
 
            when a back spasm occurred and he fell down.  He said his 
 
            leg gave out.  Claimant was taken to the hospital by 
 
            ambulance.  He was released to work with a 10 pound 
 
            restriction.  Defendant employer did not allow claimant to 
 
            return to work with the weight restriction.  Claimant said 
 
            defendant employer had a resignation form for him to sign 
 
            but he did not sign it.  Claimant said the eggnog container 
 
            he picked up weighed 22 ounces.  In fact, the carton was 
 
            presented in court and as shown on the carton, it weighed 
 
            one pound and 0.6 ounces (470 grams).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant first saw Louis F. Tribulato, M.D., on 
 
            February 23, 1990 (Jt. Ex. 12) and saw Mark Johnson, M.D., 
 
            on February 26, 1990.  Claimant emphasized he was truthful 
 
            when he gave Dr. Tribulato his medical history.  Claimant 
 
            was referred to Tribulato's notes that indicate claimant has 
 
            had back trouble since his 1986 injury.
 
            
 
                 Claimant said he returned to work on April 10, 1990, at 
 
            a split shift, four hours at a time, eight hours per day.  
 
            He had a 15 pound weight restriction at that time.
 
            
 
                 On April 12, 1990, claimant was picked up after the 
 
            first shift by his mother and taken to his friend's house.  
 
            While sitting on the sofa, claimant again had a back spasm.  
 
            He indicated he did not fall or have any injuries at work 
 
            that day.  Claimant was again taken to the hospital.  
 
            Claimant has not worked since that date.
 
            
 
                 There was a reference and considerable questioning of 
 
            claimant as to his July 7, 1986 job application in which 
 
            claimant indicated he had a prior back injury and was on a 
 
            25 pound weight limit and had been trained on proper lifting 
 
            procedures (Jt. Ex. 18).  Claimant could not recall who gave 
 
            him this restriction.  There is no question that claimant 
 
            believes he was under this restriction.
 
            
 
                 Claimant acknowledged that on August 11, 1989, he wrote 
 
            he had a 25 pound weight restriction.  This occurred when 
 
            the Atlantic Care Center was bought by Britwell, Inc., and a 
 
            new application had to be filled out.
 
            
 
                 Roberta Keil, claimant's mother, acknowledged claimant 
 
            fell downstairs as a janitor in 1985 and the doctor thought 
 
            claimant had spondylolisthesis, which could be a birth 
 
            defect.  Mrs. Keil indicated to her knowledge no one placed 
 
            any weight restrictions on claimant prior to October 28, 
 
            1989, and the only restriction was that claimant do a split 
 
            shift, four hours in the morning and four in the late 
 
            afternoon.  She said that between March 1987 and October 
 
            1989, claimant was not having any back or leg problems that 
 
            she knew of except that he wanted to sleep on a heating pad.
 
            
 
                 Mrs. Keil acknowledged that she went to the hospital on 
 
            October 28, 1989, when claimant was taken there by 
 
            ambulance.  She followed the ambulance to the hospital.  She 
 
            said claimant occasionally took Motrin and Flexeril between 
 
            1986 and 1989.
 
            
 
                 Mrs. Keil said since claimant's surgery, she isn't 
 
            satisfied with her son's progress.  He has not been released 
 
            to return to work.   She said claimant's next appointment is 
 
            on February 24, 1991.  Mrs. Keil acknowledged that she did 
 
            talk to Marylyn Cooley after claimant's October 28, 1989 
 
            injury (Jt. Ex. 18).  She has also acknowledged she talked 
 
            to the emergency room personnel pursuant to claimant's 
 
            February 1990 incident.  She said claimant did not say he 
 
            had a work injury.
 
            
 
                 Marylyn Cooley testified she has worked for defendant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employer three years as a supervisor in the dietary services 
 
            department.  She oversees the kitchen and dietary aides.  
 
            She indicated her investigation report relied on other 
 
            reports as she did not see the alleged incident.  She said 
 
            the incident was reported as occurring at around noon which 
 
            is dinner time at the care center.  She said claimant's 
 
            mother called her after the incident on October 28, 1989 and 
 
            said claimant's hospitalization was due to stress rather 
 
            than injury.
 
            
 
                 Ms. Cooley said claimant worked a split shift on April 
 
            12, 1990, and did not report any work injury on that day.  
 
            She indicated the generic job description and times worked 
 
            are guides and are not etched in stone.  It is obvious to 
 
            the undersigned that notwithstanding the job description and 
 
            the hours set out for the various shifts, the claimant did 
 
            work at times through the noon hour on certain occasions.
 
            
 
                 Ms. Cooley said she was not given a 25 pound weight 
 
            restriction for claimant but emphasized that when she came 
 
            to work, claimant was on a work restriction that he put on 
 
            his application (Jt. Ex. 18).
 
            
 
                 Clara Peterson has worked for defendant employer for 
 
            three years as a cook.  She knows claimant and was present 
 
            on February 4, 1990, when claimant picked up the container 
 
            of powdered eggnog.  Claimant then started walking and the 
 
            next minute she said claimant was lying on the floor with 
 
            pain.
 
            
 
                 Ronald K. Miller, M.D., an orthopedic surgeon, 
 
            testified on April 10, 1991, through his deposition that he 
 
            first saw claimant on October 15, 1985, upon referral from a 
 
            Dr. Wille.  Dr. Miller said claimant's x-rays revealed a 
 
            first degree spondylolisthesis with a defect in the spine, 
 
            particularly in the pars interarticularis.  Dr. Miller said 
 
            claimant complained of low back pain, headaches and weakness 
 
            in his arms and legs (Jt. Ex. 32, p. 7).  He said claimant's 
 
            exam did not show a good reversal of his lumbar curve and 
 
            his right and left lateral were restricted (Jt. Ex. 32, p. 
 
            9).  Dr. Miller described claimant's spondylolisthesis as 
 
            progressive.  He prescribed very conservative treatment at a 
 
            back care program which teaches one how to lift properly, 
 
            etc.
 
            
 
                 Dr. Miller next saw claimant on January 29, 1986, in 
 
            which claimant had right knee and leg problems.  Claimant 
 
            indicated to him his right leg gave out when he was carrying 
 
            a tray full of coffee and cookies into the living room (Jt. 
 
            Ex. 32, p. 14).  He indicated claimant was very tender to 
 
            any type of touching on his thigh or leg.  Claimant related 
 
            his problems with his leg giving out (Jt. Ex. 32, p. 15).
 
            
 
                 Claimant was admitted to the hospital on January 29, 
 
            1986.  He was seen by a neurologist.  Claimant was 
 
            discharged on February 7, 1986.
 
            
 
                 Dr. Miller said that on March 18, 1986, claimant was 
 
            doing better even though he was having intermittent cramps 
 
            in his right leg.  He has not seen claimant since (Jt. Ex. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            32, p. 20).  After reviewing the x-rays and medical records 
 
            and notes, Dr. Miller opined claimant had an 8 percent 
 
            impairment to his body as a whole on March 18, 1986.  The 
 
            doctor used the word disability but the undersigned believes 
 
            he means impairment (Jt. Ex. 32, pp. 25 and 26).  The doctor 
 
            said claimant basically looked good and had a negative 
 
            examination on this date (Jt. Ex. 32, p. 28).  On 
 
            cross-examination, the doctor indicated his 8 percent could 
 
            be reduced to 5 or 6 percent (Jt. Ex. 32, p. 31).
 
            
 
                 Dr. Miller explained in more detail and concluded 
 
            claimant had a bilateral defect from his spine slippage in 
 
            the L4-5 area (Jt. Ex. 32, pp. 2 and 35).  Jt. Ex. 8 is the 
 
            hospital x-rays showing claimant's diagnosis on January 30, 
 
            1986 as spondylolisthesis grade 1 with spondylolysis.
 
            
 
                 Joint exhibit 9 indicates that on March 17, 1986, 
 
            claimant didn't have pain unless he tried to lift too much 
 
            at home.  Joint exhibit 10 shows claimant injured himself in 
 
            October of 1986 when he pushed back some boxes that were 
 
            toppling on him.
 
            
 
                 Joint exhibit 15 reflects claimant's hospital records 
 
            when he was admitted on April 12, 1990.  The record shows 
 
            claimant has had back pain since 1986.  From the testimony, 
 
            it appears this history information was given by claimant 
 
            and his mother.  There is no contention claimant incurred a 
 
            work injury on that date.
 
            
 
                 Joint exhibit 16 shows claimant's submission to the 
 
            hospital on July 30, 1990, at which time the x-rays and a CT 
 
            scan showed claimant had a grade 2 spondylolisthesis.  
 
            Claimant  had a decompression laminectomy with lateral mass 
 
            fusion or spondylolisthesis L5-S1 on July 31, 1991 (Jt. Ex. 
 
            17).
 
            
 
                 Michael J. Morrison, M.D., wrote on January 22, 1992, 
 
            after doing an independent evaluation:
 
            
 
                    It appears that he was suffering from a 
 
                 symptomatic spondylolisthesis at L5-S1 in 1986.  
 
                 In regards to the injury of October of 1989 and 
 
                 February of 1990, the description that was given 
 
                 by the patient and the medical records obtained 
 
                 appear to relate that these were of minimal strain 
 
                 or injury to his lower back as described.  To what 
 
                 degree these two episodes aggravated his lower 
 
                 back would have to be strictly based on his 
 
                 accountability of increased pain which is a 
 
                 subjective interpretation.  Again, it would be my 
 
                 impression that his spondylolisthesis at L5-S1 was 
 
                 already a symptomatic condition for him back in 
 
                 1986 and to what involvement these two episodes at 
 
                 work had in relationship to that symptomatic 
 
                 spondylolisthesis that already existed would have 
 
                 to be based strictly on his accountability of 
 
                 increased pain as a result of these two incident.
 
            
 
            (Jt. Ex. 17)
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Joint exhibit 1, page 1, reflects a letter from Dr. 
 
            Tribulato in which he felt both incidents, October 28, 1989 
 
            and February 5, 1990, aggravated claimant's 
 
            spondylolisthesis.  It is obvious the doctor meant February 
 
            4, 1990.
 
            
 
                 In a letter to claimant's attorney on October 18, 1990, 
 
            the doctor wrote, "He does have loss of control but this is 
 
            only by history.  He said his leg gives out frequently but 
 
            this is common in people that do have symptomatic 
 
            spondylolisthesis...."
 
            
 
                 In a letter to Dr. Johnson on February 26, 1990, Dr. 
 
            Tribulato wrote:
 
            
 
                    He asked if this was job related and I told him 
 
                 I thought it was since he has been having trouble 
 
                 with his initial episode in 1986.  Since he has 
 
                 been having these flare-ups since than I would 
 
                 judge it is all related to the episode of 
 
                 September 1986 when his spondylolisthesis 
 
                 undoubtedly became symptomatic.
 
            
 
            (Jt. Ex. 1, p. 20)
 
            
 
                 It appears to the undersigned that the doctor relates 
 
            claimant's problems to a September 1986 incident when 
 
            claimant's spondylolisthesis became symptomatic.  This seems 
 
            to possibly contradict the doctor's January 24, 1992 letter 
 
            (Jt. Ex. 1, p. 1).
 
            
 
                 Claimant contends he incurred injuries on October 28, 
 
            1989 and February 4, 1990, that arose out of and in the 
 
            course of his employment.  The record shows claimant has had 
 
            back problems for many years with it becoming symptomatic in 
 
            1986.  He had a diagnosis of spondylolisthesis in September 
 
            1986, at which time he also had a work injury (Jt. Ex. 1, p. 
 
            35).
 
            
 
                 Dr. Tribulato related claimant's flare-ups to his 
 
            September 1986 episode (Jt. Ex. 1, p. 20).  Dr. Morrison 
 
            said claimant's spondylolisthesis L5-S1 was already 
 
            symptomatic in 1986.  He could not causally connect 
 
            claimant's current condition to either the October 1989 or 
 
            February 1990 injury.  Dr. Tribulato seems to possibly 
 
            contradict himself (Jt. Ex. 1, pp. 1 and 20).  At most, it 
 
            could possibly be determined that the October 1989 and 
 
            February 1990 incidents aggravated claimant's preexisting 
 
            condition, but the claimant has failed in his burden to 
 
            prove there was a material aggravation which worsened and 
 
            lighted up claimant's preexisting condition.
 
            
 
                 The evidence shows any little episode could trigger an 
 
            asymptomatic spondylolisthesis condition to become 
 
            symptomatic.  The October 1989 incident seems to be so 
 
            trifle.  The February 4, 1990 was even more insignificant.  
 
            As the doctors say, walking can even cause a flare-up of a 
 
            spondylolisthesis condition.  Claimant walked home after his 
 
            February 4, 1990 incident.  He was at home when his spasm 
 
            occurred after his October 28, 1989 episode at work.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Claimant was sitting on the sofa at his friend's on April 
 
            12, 1990, when he had a flare-up and was taken to the 
 
            hospital.  It appears claimant had a permanent impairment 
 
            from his September 1986 injury.  Claimant wrote on his job 
 
            application with defendant employer that he had a 25 pound 
 
            weight limit restriction.  After extensive questioning, the 
 
            claimant ultimately said he did not know where that 
 
            restriction came from.  It is apparent claimant thought he 
 
            did have a 25 pound weight restriction and it is obvious it 
 
            sure did not help claimant to get a job by putting that on 
 
            an application if he did not think it was true.
 
            
 
                 The undersigned sees no reason to further dwell on this 
 
            arising out of and in the course of claimant's employment 
 
            issue as to these respective cases.
 
            
 
                 The undersigned finds claimant did not incur any injury 
 
            that arose out of and in the course of his employment on 
 
            October 28, 1989.  There is no causal connection between 
 
            claimant's complaint and medical condition and his temporary 
 
            disability and medical expenses incurred.
 
            
 
                 The undersigned finds claimant did not incur an injury 
 
            that arose out of and in the course of his employment on 
 
            February 4, 1990, and that there is no causal connection 
 
            between claimant's complaint and medical condition and any 
 
            temporary disability or medical expenses claimant incurred 
 
            from said alleged injury.
 
            
 
                 The undersigned finds claimant had a preexisting 
 
            condition and permanent impairment that was not materially 
 
            aggravated, lighted up or worsened by any October 28, 1989 
 
            or February 4, 1990 alleged injuries.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on October 28, 
 
            1989 and February 4, 1990, 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. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 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, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant did not incur an injury on October 28, 1989 
 
            that arose out of and in the course of his employment.
 
            
 
                 Claimant's alleged medical condition or any impairment 
 
            were not causally connected to an alleged work injury on 
 
            October 28, 1989.
 
            
 
                 Claimant is not entitled to any temporary total 
 
            disability or medical benefits as a result of an alleged 
 
            October 28, 1989 injury.
 
            
 
                 Claimant did not incur an injury on February 4, 1990 
 
            that arose out of and in the course of his employment.
 
            
 
                 Claimant's alleged medical condition and any impairment 
 
            are not causally connected to claimant's alleged work injury 
 
            on February 4, 1990.
 
            
 
                 Claimant is not entitled to any temporary total 
 
            disability benefits or medical benefits as a result of an 
 
            alleged February 4, 1990 work injury.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Regarding claimant's October 28, 1989 alleged injury 
 
            (File No. 951320), claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 Regarding claimant's alleged February 4, 1990 injury 
 
            (File No. 946624), claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That the files shall be returned to docket for 
 
            determination of the bifurcated issue.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr John A Rodenburg
 
            Attorney at Law
 
            100 Park Bldg
 
            500 Willow Ave
 
            Council Bluffs IA 51503
 
            
 
            Mr Paul F Prentiss
 
            Mr John M Burns
 
            Attorneys at Law
 
            8712 W Dodge Rd  Ste 401
 
            Omaha NE 68114
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBIN WHITE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946948
 
            SEARS MANUFACTURING,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ITT HARTFORD INSURANCE        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on December 9, 1993, at 
 
            Davenport, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on January 16, 1990.  The record in the proceeding 
 
            consists of the testimony of the claimant, Sherry Rodriguez 
 
            and Richard Hauk; and, joint exhibits 1 through 4.
 
            
 
                                      ISSUES
 
            
 
                 The issue for resolution is the nature and extent of 
 
            claimant's permanent disability and entitlement to 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 35-year-old who completed the tenth grade 
 
            and has obtained her GED but has no further education.
 
            
 
                 Claimant described her work history before beginning 
 
            her work for defendant employer on November 13, 1987.
 
            
 
                 Claimant's position with Sears was as 
 
            maintenance-janitorial and her duties included cleaning 
 
            offices, mopping, dumping garbage, dusting and sweeping.  
 
            She indicated it also involved stooping and bending and 
 
            dusting lower areas, cleaning toilets, pushing, vacuum 
 
            cleaning, pulling, lifting, recycling boxes and carrying 
 
            things up and down stairs.  Claimant was responsible for 
 
            three of the floors including the lunch room.  Claimant felt 
 
            her duties were excessive.  Claimant indicated she usually 
 
            began working at 5:00 a.m. and no later than 6:00 a.m. and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            she started before most people came to work around 7:00.  
 
            Claimant indicated she was always in a rush and didn't have 
 
            enough time to get everything done.  She indicated she liked 
 
            her job and received a lot of compliments as to the good job 
 
            she did.
 
            
 
                 Claimant explained the nature of her injury which she 
 
            indicated began on January 16, 1990, as she was working.  
 
            She said her leg started bothering her and got worse as the 
 
            day went on resulting in pain in her buttocks and thigh.  
 
            She first went to a chiropractor and was prescribed heel 
 
            cups and received an adjustment and ultrasound and x-rays.
 
            
 
                 Claimant then went to see John E. Sinning, Jr., M.D., 
 
            around March 1990 because she was not getting better.  In 
 
            fact, she was getting worse.  He sent claimant to Iowa City 
 
            because he thought it might be a disc problem.  Claimant 
 
            then indicated that Sears decided not to follow up on the 
 
            care the University of Iowa suggested and on December 5, 
 
            1990, he sent claimant to a Dr. Motto.  Claimant was then 
 
            sent to work hardening and given weight restrictions by Dr. 
 
            Motto.
 
            
 
                 When claimant returned to work after her January 16, 
 
            1990 injury, she was put back on her regular job.  She was 
 
            to do only what she could but was not to overdo it.  
 
            Claimant indicated if she did not overdo her work, then the 
 
            job wouldn't get done.  Claimant said her health was very 
 
            good prior to January 16, 1990.  She indicated her current 
 
            injury affects her ability to stand, her posture, her 
 
            sitting for a long time, her knee and pushing puts pressure 
 
            on her back.  Claimant said she doesn't sleep well at night 
 
            and hasn't jogged or run since her injury.  Squatting or 
 
            putting pressure on her back hurts.  She cannot participate 
 
            in sports, can't do yard work, mowing and she doesn't vacuum 
 
            anymore.  Her social life has been affected.  She has also 
 
            gained some weight.  She relates to the fact she is no 
 
            longer as active as she was before.  Claimant again 
 
            emphasized that when she did return to work she felt 
 
            threatened because of the employer's attitude and felt that 
 
            she had better get back to work without complaints.  On 
 
            October 23, 1991, she said her problems flared up and she 
 
            went to the doctor again.  She said she had frequent 
 
            flare-ups.  When claimant returned to work her job didn't 
 
            change even though there were restrictions at first and she 
 
            had to do her job duties even though light duty was 
 
            required.  She said Sears doesn't have light duty and she 
 
            was actually back to her regular job.
 
            
 
                 The question was asked as to her employer providing 
 
            help for her and she said they didn't help her much because 
 
            they were on restricted duty, also.  She mentioned a Linda 
 
            who was also on restricted duty that was supposed to help 
 
            her.  Claimant said she signed an agreement to stay on light 
 
            duty and that she tried to stay on light duty within her 
 
            restrictions.  She felt the employer tried to eliminate her 
 
            job and subcontract it out eventually in 1993.  Claimant 
 
            then related a couple of incidents that led to her 
 
            discharge, one being that when she complained of her back 
 
            hurting she was told that if she left it would go against 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            her work record.  Claimant indicated that she went home to 
 
            rest because she hurt and called back to the employer 
 
            needing to see the doctor.  She indicated Sears set up an 
 
            appointment the following day.
 
            
 
                 Claimant did not go to work the next day because she 
 
            was going to the doctor first.  She contends she wasn't told 
 
            to show up for work before she went to the doctor even 
 
            though the employer takes the position that she was told she 
 
            must come to work before she goes to her doctor appointment.  
 
            She said her back was still bothering her.  Claimant said 
 
            that the doctor gave her an excuse to take to her employer 
 
            for both days.  In other words, the day of the appointment 
 
            and the prior day, but the company put points against the 
 
            claimant anyway.  Claimant indicated she took pills that 
 
            morning and this resulted in her oversleeping.  Because of 
 
            these pills, she didn't call the employer in time to tell 
 
            them she wasn't coming in first.  Claimant said she then had 
 
            a meeting with the defendant employer and two days after 
 
            said meeting, she was discharged from work.
 
            
 
                 Claimant contends her attendance record was good before 
 
            her back injury and that any absences were basically doctor 
 
            appointments or incidents relating to her back.  Claimant 
 
            said she wants to work and would like to work for Sears.  
 
            She said she has looked for jobs and had a small list when 
 
            she was in the courtroom.  She indicated she needed to 
 
            contact two people per week for unemployment benefits. 
 
            
 
                 Claimant was making $9.87 per hour at Sears and was 
 
            able to obtain some overtime.  She related she understood 
 
            her impairment rating was 8 percent and she understood what 
 
            her restrictions were.
 
            
 
                 Claimant acknowledged that she incurred another injury 
 
            on October 23, 1991 while carrying computer boxes.  She 
 
            settled this case with another insurance company.  She 
 
            acknowledged that this incident in 1991 made her condition 
 
            worse and her entire leg would become numb.  Claimant 
 
            acknowledged that she is making more money now after this 
 
            January 1990 injury than she was before that injury.  She 
 
            would like to work again at Sears within her restrictions 
 
            whether in the same job or another job.
 
            
 
                 Richard Hauk testified that he has worked for Sears 
 
            since September 20, 1992 as a clerk in the office handling 
 
            accident cases, etc.  He said he had reviewed claimant's 
 
            medical and accident reports and that after claimant's 
 
            January 16, 1990 injury she had returned to her regular job.
 
            
 
                 Sherry M. Rodriguez testified she works for Sears and 
 
            is the employees relations manager for the last six or seven 
 
            years.  She indicated she worked more with the discharge and 
 
            unemployment phase and usually didn't deal much with 
 
            workers' compensation claims.  She was working for Sears 
 
            when claimant was terminated.  She described the four steps 
 
            that claimant went through in which claimant's termination 
 
            occurred on the fourth step.  She indicated that claimant 
 
            had two marks on her record for failure to call in and one 
 
            for attendance.  She indicated the union grieved her 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            discharge and ultimately in the process the union dropped 
 
            the grievance but she did not know why.
 
            
 
                 Claimant filed for unemployment and initially received 
 
            it but then defendant employer appealed it because they felt 
 
            the discharge was justified and claimant's leaving their 
 
            employment was willful misconduct.
 
            
 
                 Ms. Rodriguez acknowledged that when claimant was 
 
            discharged, she was still on restricted duty and there were 
 
            certain weight restrictions.  Ms. Rodriguez said that 
 
            claimant was supposed to work within her restrictions.  She 
 
            said Sears doesn't have a job within claimant's 
 
            restrictions.  She said they did have a light duty program 
 
            that is temporary and that sooner or later a decision would 
 
            have to be made whether one could continue in that light 
 
            duty program.  She at first didn't think claimant had 
 
            restrictions at the time of her termination but then on 
 
            questions asked by the undersigned to clarify his notes or 
 
            records, she indicated she was not sure.  She was asked 
 
            concerning Sear's concern about how long claimant's 
 
            restrictions were going to continue.  There is reference to 
 
            joint exhibit 2 as to a July 20, 1992 letter in which the 
 
            employer was concerned as to the length of time claimant was 
 
            going to be on light duty and if it was going to stretch out 
 
            too long.  The October 1, 1992 letter also indicates the 
 
            employer's concern as to claimant's light duty work but that 
 
            she continues to perform the same satisfactory.  (Jt. Ex. 2)  
 
            Ms. Rodriguez said that it was not in her area of expertise 
 
            or work concerning workers' compensation matters so she 
 
            couldn't address this issue.  Ms. Rodriguez did say that if 
 
            claimant had permanent work restrictions, her job wouldn't 
 
            have been eliminated and they would have tried to find work 
 
            for claimant.  The undersigned does not believe this to be 
 
            true considering the exhibits, testimony and demeanor of 
 
            witnesses.
 
            
 
                 Claimant was discharged on January 18, 1993.  This 
 
            incident was explained by Ms. Rodriguez that claimant had 
 
            complaints of back pain and came to the office and wanted to 
 
            go home.  She indicated that claimant could not go unless 
 
            she went to the doctor and if she did go home she wouldn't 
 
            be excused.  Claimant then left work and went home and then 
 
            called defendant employer and asked if she could stay home.  
 
            She said she would go see a doctor but couldn't get in until 
 
            the next day.  The employer then indicated to the claimant 
 
            that she must come in the next morning before she went to 
 
            the doctor appointment which was to be at 9:00 or 10:00 a.m.  
 
            Claimant did not come in before going to the doctor.  Ms. 
 
            Rodriguez also indicated that the claimant had told the 
 
            doctor the wrong thing.  She understood that claimant 
 
            contended she was doing heavy lifting.  The doctor then 
 
            excused her both days.  Sears said they had two people to 
 
            help claimant and claimant apparently failed to disclose 
 
            this to the doctor.
 
            
 
                 Ms. Rodriguez said that Sears has subcontracted some 
 
            duties but still has someone to do some of claimant's former 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            duties.  She wasn't sure when this subcontracting of 
 
            janitorial services occurred.  She wasn't sure how many more 
 
            do this janitorial service now but she indicated it was more 
 
            than one.
 
            
 
                 Ms. Rodriguez acknowledged that if claimant had not 
 
            been terminated, she would still be working at Sears.
 
            
 
                 The claimant then was put on the stand again in 
 
            rebuttal.  She said she heard Ms. Rodriguez testify.  She 
 
            said she didn't recall Ms. Rodriguez telling her she had to 
 
            report to work before going to the doctor as the doctor 
 
            appointment was at 9:00 or 10:00 in the morning and that she 
 
            told Ms. Rodriguez she was having back pain.  Claimant said 
 
            she felt she didn't have to come in and the doctor ended up 
 
            excusing her which was after she had seen the doctor.
 
            
 
                 Claimant contended she didn't give the doctor false 
 
            information.  She said she was trying to stay within her 
 
            restrictions but she was doing the same things she was 
 
            before her injury.  She didn't have help on the day she was 
 
            supposed to, namely, January 18, 1991, and said that this 
 
            caused her back to flare up.  Claimant acknowledged that her 
 
            work release did not come until after her appointment.  
 
            Claimant indicated that a Miss Cisco was not helping her and 
 
            that she had a tendon cut and couldn't help.  She also 
 
            indicted her mother was not able to help her.  It appeared 
 
            her mother was working for Sears at that same time.
 
            
 
                 Ms. Rodriguez was then put on the witness stand in 
 
            rebuttal to claimant's rebuttal testimony and indicated that 
 
            on January 18, 1993, claimant still had light duty 
 
            assistance.  Ms. Rodriguez said Ms. Cisco had a finger 
 
            stitch on one hand but could do dusting with her good hand.
 
            
 
                 It appears to the undersigned that the defendant 
 
            employer wanted to somehow find a reason to discharge 
 
            claimant.
 
            
 
                 Joint exhibit 1 is the records of Orthopaedic Surgery 
 
            Associates.  A December 20, 1991 report of Dr. Sinning 
 
            reflects that claimant has an 8 percent permanent impairment 
 
            of claimant's body as a whole.  He also indicated that 
 
            claimant should be able to handle 10 to 15 pounds over her 
 
            head for the maximum lift of 30 pounds and she should be 
 
            able to lift 20 to 33 pounds from the floor up to knuckle 
 
            height with a maximum lift of 60 pounds.  He didn't have any 
 
            of claimant's work requirements but indicated on what he did 
 
            know that she would be allowed to return to her regular job 
 
            as he believed she could handle it.
 
            
 
                 There is no question as to causal connection as to 
 
            claimant's permanent impairment and her January 16, 1990 
 
            work injury and the aggravation of the same occurring 
 
            October 23, 1991.  Also, the medical records support the 
 
            fact that claimant has a herniated intervertebral disc with 
 
            resultant diminished ankle jerk and a sensation over the 
 
            back of her thigh S1 nerve root.
 
            
 
                 The August 21, 1992 notes of Dr. Sinning indicate that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant was anxious to return to work, but on her return 
 
            was told there was no longer work with restrictions 
 
            available.  The doctor's notes further, in part, indicate 
 
            that an individual representing the rehabilitation company 
 
            confirmed what the claimant said about work not being 
 
            available with restrictions.  This consultant indicated that 
 
            Sears no longer had a place for the claimant if she required 
 
            some kind of restrictions.  He indicated that claimant was 
 
            trying to function without taking advantage of these 
 
            restrictions because of the pressure of accomplishing her 
 
            job.  The consultant indicated to the doctor that it 
 
            appeared claimant needed to have an impairment rating worked 
 
            out with the expectation she was going to be paid for her 
 
            impairment and not allowed to return to work.  The doctor's 
 
            notes further indicate that claimant was ready to go back to 
 
            work, but with Sears not allowing her to go back to work 
 
            with restrictions, there seems to be no reason why this 
 
            doctor would be seeing her again unless the situation 
 
            changed.
 
            
 
                 The undersigned found the above notes of the doctor of 
 
            interest since there was testimony that seemed to indicate 
 
            from defendants' standpoint claimant could work with 
 
            restrictions and that she had help.
 
            
 
                 Claimant later then returned to work to her regular 
 
            duties but was complaining that this was bothering her.  On 
 
            January 19, 1993, pursuant to a visit to Dr. Sinning, she 
 
            told the doctor she was having problems with her back and 
 
            left leg that was interfering with her job performance.  
 
            Claimant told him she no longer had helpers at Sears and 
 
            seemed to be doing more lifting than she was doing in the 
 
            past.
 
            
 
                 The January 26 notes of Dr. Sinning indicate Rick Hauk 
 
            of defendant employer called him about the claimant asking 
 
            if she was able to work on January 18, the day before Dr. 
 
            Sinning saw her on January 19, 1993.  The doctor indicated 
 
            he told Mr. Hauk that he didn't think claimant was able to 
 
            work and that was the reason he was seeing her and he had 
 
            reviewed with Mr. Hauk the restrictions.  On January 26, the 
 
            doctor also had a conversation with Sherry Rodriguez of 
 
            defendant employer and it is obvious from the notes that she 
 
            was trying to convince the doctor that claimant's problems 
 
            for which he saw her on January 19 were the same ones she 
 
            had been having and she related to the doctor that claimant 
 
            was using the back problem as an excuse.  The doctor 
 
            indicated he was caught in the middle.
 
            
 
                 From the testimony in this case, the claimant had by 
 
            this time already been fired from work for having gone to 
 
            the doctor on January 19 before coming to work before she 
 
            would go to the doctor appointment which was at 9:00 or 
 
            10:00 in the morning on January 19.  If the defendant 
 
            employer fired claimant for all the specific reasons 
 
            indicated in court, then it would seem unnecessary that Ms. 
 
            Rodriguez or Mr. Hauk would have to call the doctor and 
 
            discuss whether she was in fact excused or not.  The 
 
            defendants, in court, seemed to indicate that the mere fact 
 
            she didn't come in was her fourth violation and therefore 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            she was terminated.  These notes of the doctor seemed to 
 
            indicate that there was a question as to the full reason for 
 
            claimant being terminated on January 19, 1993, and it would 
 
            indicate that defendant employer is trying to find some 
 
            rationalization for their firing in trying to get the doctor 
 
            to okay it and the doctor now feels he is caught in the 
 
            middle.
 
            
 
                 Dr. Sinning's deposition was taken on November 17, 
 
            1993, represented by joint exhibit 4.  Dr. Sinning testified 
 
            he saw claimant for the first time around March 12, 1990.  
 
            He indicated claimant was sent there at the request of the 
 
            insurance carrier for an examination so as to make some 
 
            recommendations for claimant's ability to return to work and 
 
            need for further medical care.
 
            
 
                 The doctor related they took a history of the claimant 
 
            and also went over the various notes and the nature of his 
 
            examination.  He indicated he referred claimant to the 
 
            University of Iowa.  The doctor referred to the University 
 
            of Iowa's letter of November 27, 1990, in which they found 
 
            there was an S1 radiculopathy change, inflammation in the 
 
            first sacral nerve on the left thigh.  They reviewed the MRI 
 
            and had the impression of a focal midline herniation at the 
 
            L3-4 and they did EMG studies which showed absent H 
 
            reflexes, which is an electrical sign of some nerve 
 
            inflammation. (Joint Exhibit 4, pp. 8-15)  The doctor then 
 
            met claimant on November 12, 1991, and thereafter he did no 
 
            other course of treatment as claimant was then being 
 
            followed by Work Well by two other doctors involved in her 
 
            medical care.  At that time, she was under their care and 
 
            direction.  Work Well followed claimant from December 1990 
 
            until July 1991, at which time claimant returned to work 
 
            with no restrictions.
 
            
 
                 The doctor then said that on October 23, 1991 claimant 
 
            had a flare-up of some low back discomfort and pain going 
 
            into her left leg and she was then back to see him again.  
 
            He then indicated claimant's problems were work related and 
 
            on December 20, 1991, opined that claimant had an 8 percent 
 
            whole body permanent impairment. (Jt. Ex 1; Jt. Ex. 4, p. 
 
            11; Dep. Ex. 2)  The doctor causally connected this 
 
            permanent impairment to claimant's work-related injury.
 
            
 
                 The doctor testified that when he last saw claimant on 
 
            March 30, 1993, she was getting along well and she was back 
 
            on a regular lifting limit of 25 pounds doing her regular 
 
            job.  He indicated that weight limit seems to probably be a 
 
            reasonable present limit.  The doctor also indicated that 
 
            that 25 pounds was more of a higher than waist kind of 
 
            limitation and that claimant could lift more at a lower 
 
            level and it would be reasonable that claimant could lift 
 
            higher weights at a lower level. (Jt. Ex. 4, pp. 14 and 15)  
 
            The doctor, on cross-examination from the defendants' 
 
            attorney, also opined that claimant's incident or flare-up 
 
            of October 23, 1991 was a specific incident of an 
 
            exacerbation of her previous problem, that problem being her 
 
            January 16, 1990 work injury.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Michael Cullen, M.D., a neurologist, opined in his 
 
            October 15, 1993 letter that claimant had an 8 percent 
 
            permanent impairment to his body as a whole, referring to 
 
            the fourth edition of the AMA Guides to the Evaluation of 
 
            Permanent Impairment.  The doctor had evaluated the claimant 
 
            on that date through a referral of claimant's attorney.
 
            
 
                 The undersigned notes that both Dr. Cullen and Dr. 
 
            Sinning have opined an 8 percent body as a whole impairment.  
 
            The record also indicates as of the present time, the 25 
 
            pound weight lifting restriction, at least from the waist 
 
            up, is still in force.
 
            
 
                 The sole issue in this case is the extent of claimant's 
 
            permanent disability.  Defendants have paid 8 percent 
 
            industrial disability.  Impairment is one element to 
 
            consider in determining claimant's industrial disability.  
 
            In fact, you don't have to have a permanent impairment in 
 
            order to have determination of industrial disability.  One's 
 
            restrictions are a very important factor.  The undersigned 
 
            believes the claimant as to the fact that the employer was 
 
            not obeying her restrictions when she returned back to work, 
 
            at least for the entire period, and when they did attempt to 
 
            provide some help it does not appear that it was adequate 
 
            and, in fact, the claimant continued to do what she was 
 
            doing and was, in fact, operating beyond her restrictions 
 
            because of the nature of her job and the pressure that was 
 
            put on her to perform her job.  The evidence is obvious that 
 
            claimant's job required her to do a considerable amount of 
 
            work within a certain period of time.
 
            
 
                 The undersigned does not accept the reasoning of the 
 
            employer which resulted in the claimant being dismissed from 
 
            her job during this controversy.  The defendants claim that 
 
            claimant was supposed to have gotten permission from the 
 
            employer to go to the 9:00 or 10:00 a.m. doctor appointment 
 
            on or around January 19, 1993.  Defendants contend that they 
 
            told the claimant when she called in on that morning that 
 
            she was hurting and that she would come in after she saw the 
 
            doctor, that she should come to work before going to the 
 
            doctor.   Claimant did not come in before seeing the doctor 
 
            and, in fact, kept her appointment and the doctor then gave 
 
            her an excuse for that day and the previous day for not 
 
            coming to work.  This did not satisfy the defendants because 
 
            she was told to come in.  The undersigned is not sure 
 
            whether she needed an excuse before she took off on those 
 
            two particular occasions because of her injury and her back 
 
            hurting but it did not seem logical that the claimant, who 
 
            had an appointment set up, would have to go see the doctor 
 
            before her appointment and then come to work and leave 
 
            shortly thereafter to keep her appointment.  One presumes 
 
            the doctor's schedule is such that when he set up an 
 
            appointment for 9:00 or 10:00 in the morning, he did not 
 
            have time to analyze claimant prior to that time in order to 
 
            give her an excuse.
 
            
 
                 The undersigned is further supported by his reasoning 
 
            herein when one refers to the January 26, 1993 notes in 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            which at that time it appears the employer was interfering 
 
            with the doctor's judgment and reasons for excusing claimant 
 
            from work.  It appears on both January 25 and 26, 1993, this 
 
            doctor had a conversation with the two defendant witnesses 
 
            that testified in this case, both of whom on those 
 
            respective date seemed to be trying to influence the 
 
            doctor's judgment.  Defendant employer did not handle this 
 
            matter well in that regard and seemed to do its best to find 
 
            a reason to eventually fire or lay off this claimant.
 
            
 
                 Claimant has a 25 pound weight restriction, 
 
            particularly from the waist up.  This is a considerable 
 
            weight restriction for someone who has a work history such 
 
            as claimant and whose job has been for the last few years 
 
            before her injury performing manual labor which required 
 
            lifting, pushing, twisting, etc.
 
            
 
                 There is no dispute in the medical as to the permanent 
 
            impairment or to any restrictions claimant has.
 
            
 
                 Taking into consideration claimant's work and medical 
 
            history prior to her injury and after her injury; her 
 
            present condition; education; intelligence; wages prior to 
 
            the injury and after her injury; her inability to engage in 
 
            employment for which she is fitted after her injury to the 
 
            same extent that she was able to do prior to her injury; 
 
            location and severity of her injury; age; motivation; and, 
 
            functional impairment, the undersigned finds that claimant 
 
            has a 25 percent industrial disability.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's work injury on January 16, 1990 caused 
 
            claimant to incur permanent impairment and lifting 
 
            restriction and a 25 percent industrial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at the 
 
            weekly rate of one hundred eighty-eight and 92/100 dollars 
 
            ($188.92) beginning December 21, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid forty (40) weeks of permanent partial disability 
 
            benefits at the rate of one hundred eighty-eight and 92/100 
 
            dollars ($188.92) per week.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr William J Bribriesco
 
            Attorney at Law
 
            2407 18th St  Ste 202
 
            Bettendorf IA 52722
 
            
 
            Mr Mark Woolums
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52803
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed January 11, 1994
 
                                            Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBIN WHITE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946948
 
            SEARS MANUFACTURING,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ITT HARTFORD INSURANCE        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Found claimant is entitled to 125 weeks of permanent partial 
 
            disability benefits as a result of her work injury 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY HUNT,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 946984
 
            CHEROKEE MENTAL HEALTH,       :
 
            INSTITUTE,                    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                                                                                                                     
 
            This is a proceeding in arbitration brought by Judy Hunt, 
 
            claimant, against Cherokee Mental Health Institute, employer 
 
            and State of Iowa, insurance carrier, to recover benefits 
 
            under the Iowa Workers' Compensation Act as the result of an 
 
            alleged injury sustained on March 24, 1990.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on February 6, 1991, in Storm Lake, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The record in this case consists of claimant's 
 
            testimony, claimant's exhibits 1 through 12 and defendants' 
 
            exhibit A.
 
            
 
                                      issues
 
            
 
                 The only issue to be determined by the undersigned 
 
            involves claimant's entitlement to Iowa Code section 85.27 
 
            expenses and mileage reimbursement.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Defendants do not dispute that claimant sustained an 
 
            injury to her right lower extremity on March 24, 1990, 
 
            arising out of and in the course of employment with 
 
            employer.  As a result of this injury, claimant underwent 
 
            right knee arthroscopy at St. Luke's Regional Medical Center 
 
            in Sioux City, Iowa, and follow-up physical therapy 
 
            (exhibits 4a-c).
 
            
 
                 Claimant alleges that as a result of compensating for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            her right knee problems, she developed significant problems 
 
            in her left knee.  On January 29, 1992, claimant underwent 
 
            left knee surgery.  Defendants learned of this surgery the 
 
            day before hearing and dispute liability and ripeness of 
 
            this issue at this time.  Therefore, defendants disputes 
 
            certain medical bills related to claimant's left knee 
 
            surgery.  Defendants also dispute certain medical and 
 
            pharmacy bills as either unauthorized or not causally 
 
            related to claimant's work-related injury.
 
            
 
                 A summary of claimant's medical bills is set out in 
 
            exhibit eight.  
 
            
 
                 Defendants allege that the following medical expenses 
 
            are unauthorized and unrelated to claimant's work-related 
 
            injury:
 
            
 
            Dates of Service         Medical Care Provider        Cost
 
            
 
            12-9-90                  St. Luke's Medical Center     $  
 
            133.45
 
            1-29-92                  St. Luke's Medical Center      
 
            2,875.69
 
            
 
                 Defendants state that Charles E. Hamm, M.D., was 
 
            notified that as of August 7, 1990, he was no longer 
 
            regarded as claimant's authorized physician for purposes of 
 
            workers' compensation.  They also argue that claimant's 
 
            treatment at St. Luke's Medical Center on December 9, 1990, 
 
            was not related to claimant's work injury and was 
 
            unauthorized.  In addition, they object to paying the 
 
            January 29, 1992, hospital bill and any treatment by Kevin 
 
            J. Liudahl, M.D., after October 24, 1991, because these 
 
            bills were not received until the day before the hearing.  
 
            
 
                 Claimant testified that she was treated at St. Luke's 
 
            on December 9, 1990, for migraine headaches.  She received 
 
            an injection for relief of pain.  She also testified that 
 
            she underwent left knee surgery at St. Luke's on January 29, 
 
            1992.  
 
            
 
                 Defendants also object to paying certain prescriptions 
 
            filled at Kingsley Pharmacy and Phar-Mor Pharmacy because 
 
            they were either not authorized or unrelated to the work 
 
            injury of March 24, 1990.  
 
            
 
                 Finally, defendants object to mileage expenses incurred 
 
            on December 9, 1990, to St. Luke's Medical Center; mileage 
 
            expenses for an office visit to Niles Erikson, M.D., on 
 
            March 4, 1991; mileage expenses for an office visit with Dr. 
 
            Liudahl on January 24, 1992; and mileage expenses to and 
 
            from St. Luke's Medical Center for surgery on January 29, 
 
            1992.
 
            
 
                                        
 
            
 
                                conclusions of law
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 The first issue to be determined is whether defendants 
 
            are liable for payment of medical expenses and mileage for 
 
            claimant's treatment at St. Luke's Medical Center on 
 
            December 9, 1990, and January 29, 1992.  Claimant testified 
 
            that she began experiencing severe headaches after 
 
            arthroscopic surgery on April 26, 1990.  Her headaches 
 
            intensified after returning to work.  She conferred with 
 
            Doctors Hamm and Powell regarding these headaches and was 
 
            prescribed Fioricet and Darvocet.  On December 9, 1990, she 
 
            presented to the emergency room at St. Luke's Regional 
 
            Medical Center for treatment of migraine headaches.  She was 
 
            given an injection of Toradol and Vistaril.  She was 
 
            instructed to decrease her caffeine, chocolate and processed 
 
            meat intake (ex. 4c).  
 
            
 
                 The medical evidence indicates that claimant has a long 
 
            clinical history of treatment by Dr. Hamm for headaches, 
 
            dizziness, numerous aches and pains and depression.  As 
 
            early as November 27, 1985, she presented with complaints of 
 
            tiredness, aching in her legs and headaches.  These 
 
            complaints predated her March 1990 injury and are unrelated 
 
            to it.  Therefore, treatment at St. Luke's Medical Center on 
 
            December 9, 1990, is not compensable.  
 
            
 
                 Claimant's January 29, 1992, surgery at St. Luke's 
 
            Medical Center is not the subject of this claim and 
 
            therefore, is not compensable at this time.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant is entitled to payment of prescription drugs 
 
            at Kingsley and Phar-Mor Pharmacy related to treatment by 
 
            Dr. Hamm through August 7, 1990, and by Dr. Liudahl through 
 
            October 24, 1991.  She is not entitled to payment of those 
 
            costs for prescription drugs for treatment of headaches, 
 
            depression and anxiety.  Therefore, claimant is not entitled 
 
            reimbursement for for Prozac, amitriptyline and Buspar.  
 
            Claimant is also not entitled to payment of those costs 
 
            related to her weight problem and insomnia.  
 
            
 
                 Finally, claimant is not entitled to mileage expenses 
 
            for treatment at St. Luke's Hospital on December 9, 1990, 
 
            and January 29, 1992; treatment by Dr. Erikson on March 4, 
 
            1991; and treatment by Dr. Liudahl on January 24, 1992.
 
            
 
                 Claimant is entitled to payment of only those expenses 
 
            related to treatment of her right lower extremity problems 
 
            and expenses authorized by defendants.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from this proceeding.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity as ordered by the agency 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Daryl L. Hecht
 
            Attorney at Law
 
            614 Pierce St.
 
            PO Box 27
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          52500 52503
 
                                          Filed February 13, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY HUNT,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 946984
 
            CHEROKEE MENTAL HEALTH,       :
 
            INSTITUTE,                    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            52500 52503
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that medical expenses and mileage costs are reimbursable 
 
            under Iowa Code section 85.27 for treatment of headaches, 
 
            depression, insomnia, weight loss and anxiety.  These 
 
            conditions predated claimant's injury and treatment thereof 
 
            was either not authorized by defendant or not causally 
 
            related to her work-related injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE McVEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 946988
 
            MILLER PRODUCTS CO.,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ST. PAUL FIRE AND MARINE      :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Mike McVey filed an original notice and 
 
            petition requesting an independent medical examination under 
 
            Iowa Code section 85.39.  He alleges that he sustained an 
 
            injury arising out of and in the course of his employment 
 
            with defendant Miller Products Co. on April 16, 1990.  
 
            Defendants duly filed an answer admitting the allegations of 
 
            the petition, but arguing that they should have had an 
 
            opportunity to submit prior medical records and x-rays to 
 
            the examining physician and further assert that an 
 
            independent medical examination does not include the 
 
            follow-up treatment recommended by the examining physician.
 
            
 
                 This cause was scheduled for hearing in Des Moines, 
 
            Iowa, on January 12, 1993.  All parties failed to appear for 
 
            the hearing.  The record in this case consists only of the 
 
            pleadings.
 
            
 
                                      issue
 
            
 
                 The sole issue presented for resolution is whether 
 
            claimant is entitled to an independent medical examination 
 
            under Iowa Code section 85.39.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant has alleged that he sustained an injury 
 
            arising out of and in the course of his employment with 
 
            Miller products Co., on April 16, 1990, that the injury 
 
            occurred in Osceola, Iowa, and that an evaluation of 
 
            permanent disability was made by an employer/insurance 
 
            carrier-retained physician, David J. Boarini.  Claimant also 
 
            asserts that the evaluation is "too low" (although claimant 
 
            failed to attach the written report to his petition) and 
 
            that the work injury was a factor in producing the condition 
 
            for which the evaluation was made.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Defendants admitted all of these allegations, which are 
 
            hereby found to be established.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.39 provides in pertinent part:
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. Dec. 
 
            April 26, 1991).  Defendants' liability for claimant's 
 
            injury must be established before defendants are obligated 
 
            to reimburse claimant for independent medical examination.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 It is not necessary for claimant to obtain prior 
 
            approval of defendants or that claimant file an application 
 
            with the industrial commissioner's office prior to seeing an 
 
            independent medical examiner.  Vaughn v. Iowa Power, Inc., 
 
            (No. 925283, Arb. Dec. August 5, 1992).  Nor is it necessary 
 
            for claimant to apply for reimbursement for an independent 
 
            medical examination by a physician by claimant's own choice 
 
            prior to the examination or prior to hearing.  Pirozek v. 
 
            Swift Independent Packing and Second Injury Fund of Iowa, 
 
            File Nos. 753643, 753642 and 724893 (Appeal Dec. 1987).  
 
            Where the employer is found liable for the injury or admits 
 
            liability, as here, the only condition precedent to the 
 
            triggering of this provision is a showing that a prior 
 
            evaluation by the employer's physician for the injury at 
 
            issue has been made and the employer's physician has reached 
 
            a conclusion regarding a permanent impairment.  Kilness v. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Ebasco Services, Inc., Thirty-fourth Biennial Rep., Iowa 
 
            Indus. Comm'r 161 (1979).
 
            
 
                 Claimant has established entitlement to an independent 
 
            examination.  Evidence has not been offered as to the 
 
            reasonableness of Dr. Boulden's charges (Dr. Boulden 
 
            apparently conducted the independent medical examination on 
 
            June 20, 1991, some six days before claimant's petition was 
 
            filed).  This decision does not address reasonableness of 
 
            charges.
 
            
 
                 Defendants objected to the failure to provide the 
 
            examining physician with prior medical records.  As seen, 
 
            claimant has no such responsibility.  Defendants' answer 
 
            also notes that a telephone call was received from a 
 
            physical therapy concern requesting permission and 
 
            authorization to proceed with Dr. Boulden's recommendations.  
 
            This proceeding is under Iowa Code section 85.39.  That 
 
            section relates only to an examination, not to medical care.  
 
            This decision does not require that treatment recommended by 
 
            Dr. Boulden be provided.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant's application is granted and defendants shall 
 
            immediately reimburse claimant for the reasonable expenses 
 
            of Dr. Boulden's examination, including travel expenses.
 
            
 
                 Costs, if any, are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Larry Seckington
 
            Attorney at Law
 
            326 56th Street
 
            Des Moines, Iowa 50312
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Miller Products Co.
 
            Highway 69 North
 
            Osceola IA 50213
 
            
 
            Mr Donald R Gordon
 
            Claim Supervisor
 
            St. Paul Fire & Marine
 
            2600 Westown Parkway
 
            P O Box 65459
 
            West Des Moines IA 50265
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2502
 
                      Filed January 14, 1993
 
                      David R. Rasey
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIKE McVEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 946988
 
            MILLER PRODUCTS CO.,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ST. PAUL FIRE AND MARINE      :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2502
 
            Neither party appeared for hearing on claimant's petition 
 
            for independent medical examination.  The record was limited 
 
            to the pleadings.  Defendants admitted all allegations, but 
 
            claimed a right to submit medical records and x-rays to the 
 
            examining physician.  It was found that claimant had no such 
 
            responsibility.  Defendants also asserted that section 85.39 
 
            does not authorize further treatment as recommended by the 
 
            examining physician.  Defendants were ordered to pay the 
 
            reasonable expenses of the examination, but were not ordered 
 
            to provide additional care recommended by the examining 
 
            physician.
 
            
 
 
            
 
            
 
            
 
                 
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TRACY L HOLVEN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 956310 & 
 
                                                          947012
 
            IOWA VETERANS HOME,           :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Tracy L. 
 
            Holven, claimant, against Iowa Veterans Home, employer, and 
 
            State of Iowa, insurance carrier, defendants, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of a shoulder injury sustained April 4, 1990 and 
 
            aggravation of that injury on July 18, 1990.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on June 17, 1993, in Fort Dodge, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  Also 
 
            present and testifying were Cindy Lund, Becky Conard and 
 
            Diane Lemker.  The documentary evidence identified in the 
 
            record consists of claimant's exhibits 1 through 9 and 
 
            defendants' exhibit B through E and G through I.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated June 17, 1993, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 .  Whether claimant's alleged injuries are a cause of 
 
            permanent disability, and if so, the extent thereof; and
 
            
 
                 .  Whether claimant's disability is a scheduled member 
 
            disability to the arm or an industrial disability.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on June 11, 1961, and attended high 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            school through the ninth grade.  She obtained a GED 
 
            certificate in 1980.   She is a certified "Geriatric Aide" 
 
            and "Nonparenteral Medication Aide".  She completed some 
 
            classes towards a nursing degree at Marshalltown Community 
 
            College and completed two classes in paralegal studies at 
 
            the American Institute of Commerce in Cedar Falls from 
 
            September through November of 1991.  In August 1992, she 
 
            commenced a two-year paralegal program at Kirkwood Community 
 
            College.  She is expected to graduate in 1994.  Claimant 
 
            commenced working for employer on January 2, 1981.  She 
 
            worked in the nursing department performing patient care.  
 
            On April 4, 1990, she earned $11.57 per hour and on July 18, 
 
            1990, she earned $12.15 per hour.  
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant saw Carl O. Lester, M.D., on April 25, 1990.  She 
 
            presented with pain in her left shoulder after doing a 
 
            three-man lift on April 4, 1990.  X-rays were normal.  
 
            Conservative therapy was initiated.  She had an 
 
            arthrogram/CT scan of the left shoulder in May 1990 which 
 
            was basically negative.  Dr. Lester diagnosed tendonitis in 
 
            the left shoulder without evidence of a rotator cuff 
 
            rupture.
 
            
 
                 Claimant vacillated between light duty and full duty 
 
            while continuing to have left shoulder symptomatology 
 
            (exhibit 3).
 
            
 
                 On November 5, 1990, Dr. Lester performed a diagnostic 
 
            arthroscopy and open anteror acromionectomy.  Postoperative 
 
            diagnosis was "impingement syndrome, left shouder." (ex. 4).
 
            
 
                 After surgery claimant participated in a seven-week 
 
            work hardening program at Marshalltown Medical and Surgical 
 
            Center.  This commenced on January 14, 1991.  It was 
 
            completed on March 1, 1991.  At the end of the program, the 
 
            therapist questioned whether claimant would be able to 
 
            return to her prior work activity or tolerate eight hours of 
 
            regular job duties (ex. 5).
 
            
 
                 Claimant returned to work after surgery.  She had 
 
            difficulty with heavy lifting and sustained repetitive work 
 
            activity.  As a result she experienced pain and weakness in 
 
            her left shoulder.  She sought treatment from Dr. Leland G. 
 
            Hawkins and David P. Hart, M.D, at the Medical Clinic in 
 
            Cedar Rapids, Iowa.  Claimant first presented to the clinic 
 
            on June 13, 1991.  An examination by Dr. Hawkins revealed a 
 
            full range of motion of the left shoulder with weakness of 
 
            the supraspinatus.  X-rays were normal.  She was injected in 
 
            the subdeltoid bursa.  Pain medication was also prescribed 
 
            (ex. 8).
 
            
 
                 Claimant saw Dr. Hart on October 2, 1991.  After 
 
            examination, a chronic rotator cuff tendonitis was 
 
            diagnosed.  An MR scan of the left shoulder was performed 
 
            and revealed hypertrophy at the AC joint but no evidence of 
 
            cuff tear.  Dr. Hart recommended a diagnostic left shoulder 
 
            arthroscopy (ex. 8).
 
            
 
                 Claimant was scheduled for left shoulder arthroscopy on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            November 7, 1991.  Although there is no medical record of 
 
            the procedure, Dr. Hart reported on November 13, 1991, that 
 
            claimant suffers from secondary impingement type syndrome.  
 
            A follow-up examination on December 7, 1991, revealed full 
 
            range of motion of the left shoulder with a mildly positive 
 
            impingement sign (ex. 8, page 4).
 
            
 
                 On March 2-3, 1992, claimant underwent a functional 
 
            capacity evaluation by a licensed physical therapist and 
 
            occupational therapist (ex. 6).  The results were explained 
 
            to her by Dr. Hart.  He told her that the examination showed 
 
            excellent range of motion, negative impingement sign and 
 
            good strength.  On March 6, 1992, Dr. Hart indicated that 
 
            claimant was capable of returning to work, full time, with 
 
            the following restrictions:  
 
            
 
                 ...floor to waist lifting 55 pounds on an 
 
                 occasional basis, waist to shoulder lifting 30 
 
                 pounds on occasional basis, waist to overhead 
 
                 lifting 25 pounds on an occasional basis.  On arm 
 
                 lifting overhead would be limited to 10 pounds on 
 
                 an occasional basis, pushing activities 82 pounds 
 
                 of force on an occasional basis, pulling 58 pounds 
 
                 of force on an occasional basis.  Repetitive 
 
                 overhead lifting should be avoided.
 
            
 
            (exhibit 8, page 5)
 
            
 
                 Claimant presented Dr. Hart's restrictions to employer.  
 
            On March 20, 1992, she was terminated by employer due to an 
 
            unavailability of work within these restrictions (ex. 1).
 
            
 
                 On August 31 and September 1, 1992, claimant underwent 
 
            another functional capacity evaluation by the same two 
 
            therapists who performed the evaluation on March 2-3, 1992 
 
            (ex. 7).
 
            
 
                 On October 12, 1992, claimant presented to Dr. Hart for 
 
            a final evaluation.  Claimant related that the arthroscopic 
 
            subacromial decompression partially helped to alleviate her 
 
            pain.  She complained of difficulty with overhead motions 
 
            and arm fatigue.  After reviewing the functional capacity 
 
            evaluation completed on September 1, 1992, Dr. Hart gave 
 
            claimant the same restrictions as on March 6, 1992.  At this 
 
            time, he also gave her a 2 percent impairment rating of the 
 
            left upper extremity (ex. 8, p. 6).  
 
            
 
                 Dr. Hart participated in a telephone deposition on 
 
            March 3, 1993.  He testified that he first saw claimant on 
 
            October 2, 1991.  Based upon her complaints of pain, he 
 
            injected her shoulder.  She received some but not 
 
            substantial relief and a diagnosis of chronic rotator cuff 
 
            tendonitis was made.  An MR scan was also recommended.  Dr. 
 
            Hart testified that the scan showed some enlargement of the 
 
            acromioclavicular joint (the joint where the collar bone 
 
            meets the shoulder blade bone) and some obliteration of the 
 
            fat that overlies the rotator cuff.  On November 7, 1991, he 
 
            performed a diagnostic arthroscopy of the left shoulder 
 
            joint and an arthroscopic acromioplasty.  This involves 
 
            making room for the underlying rotator cuff by removing a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            portion of the acromian bone and the clavicle bone.  He 
 
            explained that the acromian bone forms the roof overlying 
 
            the shoulder and the collar bone starts from the breast bone 
 
            and extends out towards the shoulder and forms a joint with 
 
            the shoulder blade bone way out towards the shoulder.  He 
 
            reiterated that he removed a portion of both of these bones 
 
            in order to provide more room for the underlying rotator 
 
            cuff tendons which were chronically inflamed (ex. 2, pp. 
 
            8-10).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant's 
 
            injury on April 4, 1990 and aggravation on July 18, 1990, is 
 
            confined to her right arm or extend into the body as a 
 
            whole.
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory.  The statute conferring 
 
            this right can also fix the amount of compensation payable 
 
            for different specific injuries.  The employee is not 
 
            entitled to compensation except as the statute provides.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 Even though a doctor assigns a permanent partial 
 
            impairment rating to an extremity and not to an arm or leg 
 
            or hip or shoulder, that assignment is not controlling in 
 
            determining whether the disability is properly rated as to a 
 
            scheduled member or to the body as a whole.  The statute 
 
            sets forth scheduled permanent partial disability 
 
            compensation for the loss or loss of use of an arm or of a 
 
            leg, not for the loss or loss of use of an upper extremity 
 
            or lower extremity.  Where an injury to a joint connecting 
 
            an extremity to the body as a whole is present, disability 
 
            in the form of actual impairment to the body as a whole also 
 
            must be present for the injury to be industrially ratable.  
 
            See Iowa Code 85.34(2); Lauhoff Grain v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986); Alm, 240 Iowa 1174, 38 N.W.2d 161; 
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 
                 Defendants argue that claimant's disability is to the 
 
            upper extremity only.  As noted, since upper extremities are 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            not recognized as a scheduled member in Iowa, a physician's 
 
            assignment of permanent partial impairment to an upper 
 
            extremity is not controlling.
 
            
 
                 A shoulder injury is an injury to the body as a whole 
 
            if the injury affects the "body side" or the shoulder joint.  
 
            Lauhoff Grain, 395 N.W.2d 834.  The agency has typically 
 
            compensated shoulder injuries industrially on the basis that 
 
            such injuries involve disability to the body as a whole.  
 
            Streeter v. Iowa Meat Processing Co., file numbers 730461 
 
            and 809945 (App. Decn., March 31, 1989); Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (1982); Houser v. A M Cohron & Sons, file number 851752; 
 
            Payton v. Sheller-Globe Corp., file number 895808 (App. 
 
            Dec. April 30, 1993).
 
            
 
                 The surgical procedures performed on November 5, 1990 
 
            and November 7, 1991, invaded the body side of the shoulder 
 
            joint.  Dr. Hart testified that he performed a diagnostic 
 
            arthroscopy of the left shoulder joint and an arthroscopic 
 
            acromioplasty which involves removing a portion of the 
 
            acromian bone and the clavicle bone.  He stated that he 
 
            removed a portion of those bones in order to provide more 
 
            room for the underlying rotator cuff tendons which were 
 
            chronically inflamed.  This procedure was performed because 
 
            an MR scan showed some enlargement of the acromioclavicular 
 
            joint and some obliteration of the fat that overlies the 
 
            rotator cuff.  
 
            
 
                 Accordingly, claimant has met her burden of proof that 
 
            her injury extends beyond the scheduled member and into the 
 
            body as a whole.  Kellogg v. Shute and Lewis Coal Company, 
 
            130 N.W.2d 667 (1964).  
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, she has sustained an industrial disability.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 As previously noted, claimant was born on June 11, 
 
            1961.  She was 29 years old in 1990 when she injured her 
 
            shoulder.  Because of her young age, claimant's industrial 
 
            disability is less serious than it would be for an older 
 
            worker who is injured at the peak of her earning career.  
 
            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 (App. Dec. 1989).
 
            
 
                 Claimant has demonstrated that she is capable of 
 
            retraining or additional training.  She began paralegal 
 
            school in September 1991 and continues in that program.  She 
 
            plans to graduate in 1994.  Claimant obtained a GED 
 
            certificate after quitting school in the ninth grade.  She 
 
            also obtained a certificate in medication and geriatric 
 
            aide.  Claimant has demonstrated a willingness and ability 
 
            to pursue educational endeavors and has demonstrated a 
 
            motivation to be employed.  
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 An injured employee's ability for retraining is one of 
 
            the considerations used in the determination of industrial 
 
            disability.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).  
 
            
 
                 Claimant testified that she has not made a serious job 
 
            search since March 1992 when she was terminated from her job 
 
            with employer.  She honestly testified that working would 
 
            interfere with her paralegal studies.  An employee seeking 
 
            workers' compensation would do well to make a diligent 
 
            attempt to find employment.  Hild v. Natkin & Co., I Iowa 
 
            Industrial Commissioner Report 144 (Appeal Decision 1981); 
 
            Tuberty v. Harold Dickey Transport, Inc., file number 
 
            798936 (February 29, 1992).
 
            
 
                 Employers are responsible for the reduction in earnings 
 
            capacity caused by the injury, they are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Nevertheless, claimant is foreclosed from performing 
 
            her prior work as a nurse's aide.  Defendants have not 
 
            worked with claimant nor offered her light duty work within 
 
            her work restrictions.  Defendants have not offered claimant 
 
            vocational rehabilitation.  Defendants made no effort to 
 
            accommodate claimant's needs and this forces claimant to 
 
            compete in the competitive job market with work restrictions 
 
            obtained while in the employ of employer.
 
            
 
                 Dr. Hart gave claimant a 2 percent permanent impairment 
 
            rating to the left upper extremity.  He testified that when 
 
            he rates an extremity or joint, he bases it solely on 
 
            objective findings which would for a shoulder involve range 
 
            of motion measurements and strength testing.  He stated that 
 
            claimant had a better than normal range of motion simply 
 
            because of her congenital ligamentous laxity.  He admitted 
 
            that he did not include in his ratings her complaints of 
 
            numbness and pain because these are subjective complaints.  
 
            However, Dr. Hart had no reason to doubt claimant's 
 
            subjective complaints.
 
            
 
                 Based upon all the factors used to determine industrial 
 
            disability, and relying on agency expertise, it is 
 
            determined that claimant has sustained a 30 percent 
 
            industrial disability.
 
            
 
                                      ORDER
 
            
 
                 In file number 956310:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 In file number 947012:
 
            
 
                 Defendants pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred one and 73/100 dollars ($301.73) per week 
 
            commencing March 6, 1992, when she was released to return to 
 
            work by Dr. Hart (ex. 8, p. 5).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants receive credit under Iowa Code section 
 
            85.38(2) for previous payments made under a nonoccupational 
 
            group plan.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave., STE 111
 
            Des Moines, Iowa  50312
 
            
 
            Mr. James Christenson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
 
 
            
 
 
            
 
          
 
                   
 
            
 
            
 
                                                  51803.1, 51803
 
                                                  Filed June 25, 1993
 
                                                  Jean M. Ingrassia
 
                     
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TRACY L HOLVEN,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 956310 & 947012
 
            IOWA VETERANS HOME, 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803.1
 
            Claimant's shoulder injury was found to be an injury to the 
 
            body as a whole.  Claimant underwent a diagnostic 
 
            arthroscopy of her left shoulder joint and an arthroscopic 
 
            acromioplasty.  This involved making more room for the 
 
            underlying rotator cuff by removing a portion of the 
 
            acromian bone and the clavicle bone.  The purpose of 
 
            removing a portion of those two bone was to provide more 
 
            room for the underlying rotator cuff tendons which were 
 
            chronically inflamed.
 
            
 
            51803
 
            Claimant was awarded a 30 percent industrial disability.  
 
            Claimant's treating surgeon gave her a 2 percent functional 
 
            impairment rating.  Claimant, a younger individual (29) was 
 
            terminated by employer because they could not accommodate 
 
            her physical restrictions.  Claimant is capable of 
 
            retraining and re-education.  She has been attending a 
 
            paralegal program since 1991.  Claimant has not sought any 
 
            employment because it would interfere with her school 
 
            schedule.  It is difficult to assess claimant's 
 
            employability when she has not attempted to return to work 
 
            since March 1992.