BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CECIL MCNICHOLS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950059
 
            FIRESTONE TIRE AND RUBBER,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Cecil 
 
            McNichols, claimant, against Firestone Tire and Rubber, 
 
            employer, Cigna, insurance carrier, and Second Injury Fund 
 
            of Iowa, defendants, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on March 28, 1990.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on August 4, 
 
            1993, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  The documentary evidence identified 
 
            in the record consists of claimant's exhibits 1 through 69 
 
            and defendants' exhibits AA through FF and HH through JJ.
 
            
 
                 At this time, the only claim is against the Second 
 
            Injury Fund of Iowa.  Claimant's claim against employer was 
 
            settled through an agreement for settlement under Iowa Code 
 
            section 86.13(3).  Under the settlement, claimant received 
 
            compensation for an 8 percent permanent partial disability 
 
            to his left arm.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated August 4, 1993, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant sustained two separate injuries to 
 
            his right and left arms on May 4, 1989 and March 28, 1990, 
 
            or whether his bilateral injuries occurred simultaneously, 
 
            and;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 2.  Whether claimant is entitled to Second Injury Fund 
 
            benefits as a result of his alleged March 28, 1990 injury.
 
            
 
                                 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 June 20, 1954 and completed the ninth 
 
            grade of school.  He received his GED certificate in 1974 
 
            while serving in the United States Army.  Claimant served 
 
            two terms in the army, one from October 1971 through 
 
            December 1974 and another from January 1977 through December 
 
            1982.  He commenced working for Firestone in April 1984.  He 
 
            was assigned to the banbury room as a belt loader.  In 
 
            December 1984 he was laid off for two and one-half years.  
 
            During that time he went to truck driving school and 
 
            received a chauffeur's license.  He drove a truck and cab 
 
            during his lay off tenure.  He returned to Firestone on July 
 
            2, 1987 and was again assigned to the banbury room.  He 
 
            suffered two work injuries which resulted in surgical 
 
            intervention in September 1989 and June 1990.  After his 
 
            second surgery he was assigned to the tuber department.  In 
 
            November 1992 he received a one year appointment as a 
 
            quality control inspector.  In November 1993 he plans to 
 
            transfer to heavy duty curing.  This work is performed using 
 
            hoists and does not require heavy lifting, twisting, 
 
            turning, or jerking arm movements. 
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            on May 4, 1989, claimant presented to employer's infirmary 
 
            with complaints of pain, numbness and stiffness in his right 
 
            hand (exhibit 1, page 8).  James L. Blessman, M.D., company 
 
            physician, referred claimant to Iowa Methodist Medical 
 
            Center for EMG studies on May 25, 1989.  The results 
 
            revealed mild right carpal tunnel syndrome (ex. 40).  His 
 
            condition gradually deteriorated and Dr. Blessman referred 
 
            him to Arnis D. Grundberg, M.D., for examination on August 
 
            15, 1989.  An injection was administered at this time.  
 
            Claimant's condition did not improve and claimant elected 
 
            out-patient surgery.  On September 7, 1989, Dr. Grundberg 
 
            performed decompression of the right carpal tunnel and right 
 
            cubital tunnel (ex. 45, pp. 72-73).
 
            
 
                 Dr. Grundberg released claimant to full duty on October 
 
            11, 1989 (ex. 45, p. 73).
 
            
 
                 On March 28, 1990, claimant presented to the company 
 
            infirmary with complaints of left wrist and elbow pain (ex. 
 
            1, p. 11).  He was referred to Dr. Grundberg for evaluation 
 
            on April 24, 1990.  X-rays of the left wrist and elbow were 
 
            normal.  An EMG was also normal.  Based on his symptoms, Dr. 
 
            Grundberg diagnosed left cubital and carpal tunnel syndrome.  
 
            He was given an injection of Depo Medrol IM.  His symptoms 
 
            did not improve and on June 6, 1990, Dr. Grundberg performed 
 
            decompression of the ulnar nerve of the left elbow and 
 
            decompression of the medial nerve of the left wrist (ex. 51, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            pp. 81-82).
 
            
 
                 On June 26, 1990, Dr. Grundberg gave claimant an 8 
 
            percent impairment rating of the right arm (ex. 51, p. 82).
 
            
 
                 On November 6, 1990, Dr. Grundberg gave claimant an 8 
 
            percent impairment rating of the left arm.  On examination, 
 
            claimant reported an absence of numbness, tingling and pain 
 
            in his left wrist and elbow (ex. DD).  
 
            
 
                 Claimant testified that he was off work for one week 
 
            after the June 1990 surgery.  Upon his return to work he was 
 
            transferred to the tuber department.  A notation from Dr. 
 
            Blessman dated July 17, 1990, states that, "At this point I 
 
            agree it's safe for him to go back and try his regular duty 
 
            job and released him to do that."  (ex. 43, p. 69).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The issue to be determined is whether claimant is 
 
            entitled to Second Injury Fund Benefits.  
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 The Second Injury Fund argues that they have no 
 
            liability in this case because claimant's bilateral carpal 
 
            tunnel syndrome resulted from one gradual injury process and 
 
            was a simultaneous injury to both arms despite manifestation 
 
            on two separate occasions.  Defendant's contentions are 
 
            without merit.  
 
            
 
                 The record clearly establishes that claimant did not 
 
            sustain a cumulative injury to both hands and arms 
 
            (bilaterally) which developed and occurred simultaneously.  
 
            The record, in fact, clearly demonstrates claimant suffered 
 
            two separate cumulative injuries, one in May 1989 to his 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            right arm and a second in March 1990 to his left arm.  Both 
 
            injuries resulted in surgery and postoperative recuperation 
 
            of about one week.  Claimant's complaints were clearly 
 
            manifested on different occasions and no physician who has 
 
            treated and/examined claimant has described his injuries as 
 
            basically occurring simultaneously.  Therefore, because 
 
            Second Injury Fund benefits are triggered, an assessment of 
 
            industrial disability is appropriate in this case.
 
            
 
                 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 
 
            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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 Claimant is 39 years old.  He has a GED certificate.  
 
            His work experience has been divided between a tour of duty 
 
            with the United States Army and work with employer.  In the 
 
            army he was a machine gun carrier and demolition specialist.  
 
            At Firestone he has been a utility worker and production 
 
            line worker.  Claimant has worked for employer since 1984.  
 
            Currently he is serving a one year appointment as a quality 
 
            control coordinator.  He already has a transfer approved 
 
            effective November 1993.  Claimant has never been a tire 
 
            builder at Firestone.  
 
            
 
                 Despite two surgeries, claimant has no work 
 
            restrictions and requires no ongoing medical care.  Claimant 
 
            testified that he works an eight-hour day from 3 p.m. to 11 
 
            p.m. and a mandatory overtime eight-hour day on Saturday.  
 
            He does not volunteer to work on Sunday or any other time 
 
            because of his family responsibilities.  Claimant has 
 
            suffered no loss in hourly wages since May of 1989 (ex. EE).  
 
            Claimant has lost no time from work after his second surgery 
 
            due to either of his work injuries.  
 
            
 
                 Although claimant complained that he suffers from pain, 
 
            numbness and loss of grip strength, this is not borne out by 
 
            the objective medical evidence.  Claimant takes no pain 
 
            medication and sought no medical treatment since he was 
 
            released to return to work in July 1990.  Claimant lost some 
 
            time from work in June 1991 when he sprained his right wrist 
 
            in a motorcycle accident.  Otherwise, claimant's work 
 
            attendance has been excellent. 
 
            
 
                 After carefully considering the factors of industrial 
 
            disability including those previously specifically discussed 
 
            the undersigned concludes that claimant has sustained 10 
 
            percent industrial disability.  This is equivalent to 50 
 
            weeks.  The Second Injury Fund's liability is reduced by the 
 
            combined losses of claimant's right arm (8 percent of 250 
 
            weeks or 20 weeks) and claimant's left arm (8 percent of 250 
 
            weeks or 20 weeks).  The total reduction is 40 weeks.  The 
 
            Second Injury Fund's liability is 10 weeks of benefits.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That the Second Injury Fund shall pay claimant ten (10) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of four hundred three and 62/100 dollars ($403.62) per week.  
 
            The Second Injury Fund's liability begins at that end of the 
 
            employer's liability for weekly benefits.  Finneman v. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Wilson Foods Corp., file numbers 834479/913590 (App. Dec. 
 
            March 17, 1993).
 
            
 
                 That the Second Injury Fund pay accrued weekly benefits 
 
            in a lump sum.
 
            
 
                 That Second Injury Fund pay interest on unpaid weekly 
 
            benefits beginning on the date of this decision.  Braden, 
 
            459 N.W.2d 467, 473.
 
            
 
                 That Second Injury Fund file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. Marvin Duckworth
 
            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
 
            
 
            
 
                  
 
            
 
 
            
 
            
 
            
 
                                              53202
 
                                              Filed August 17, 1993
 
                                              Jean M. Ingrassia
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                    
 
            CECIL MCNICHOLS,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 950059
 
            FIRESTONE TIRE AND RUBBER,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            53202
 
            Claimant found to be 10 percent industrially disabled as a 
 
            result of injuries to his right and left arm on separate 
 
            occasions.  Claimant underwent surgery on his right arm in 
 
            September 1989 and on his left arm in June 1990.  He has 
 
            returned to work without restriction and ceased medical care 
 
            in July 1990.  Claimant works a 48-hour weeks and earns more 
 
            now than he did when first injured.  
 
            
 
            Claimant received 8 percent functional impairment ratings 
 
            for each extremity.  The Second Injury Fund was credited 
 
            with 40 weeks and liable for 10 weeks of benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
         
 
            DAN BOENDER,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 950086
 
            L & R MAINT. & CONST. CO.,      
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            AETNA CASUALTY & SURETY,   
 
                        
 
                 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 September 17, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 
            219 First Ave. East
 
            Oskaloosa, Iowa 52577
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
         
 
 
 
 
 
                                               5-1803; 5-2500
 
                                               Filed April 29, 1993
 
                                               BYRON K. ORTON
 
                   
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         DAN BOENDER,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 950086
 
         L & R MAINT. & CONST. CO.,      
 
                                                   A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         AETNA CASUALTY & SURETY,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
             
 
         5-1803
 
         
 
         Claimant has failed to show by a preponderance of the evidence 
 
         that his work injury resulted in permanent disability. 
 
         Claimant was working in a manbasket on a fork lift when it 
 
         dropped and fell 20 feet to the ground.  He injured his chin and 
 
         left elbow.  Dental work was required.  Claimant lost no time 
 
         from work but was temporarily put on light duty for about four 
 
         months.  Thereafter, he returned to his usual job and worked 14 
 
         months until he voluntarily quit on November 15, 1990.  Claimant 
 
         was given no work restrictions.  He had persistent complaints of 
 
         back pain but an orthopedic examination revealed normal range of 
 
         motion and negative straight leg raising.  Claimant received 
 
         chiropractic treatments from July 1990 through January 1991.  In 
 
         June 1992, claimant's chiropractor gave him a 20 percent 
 
         permanent impairment rating but no restrictions.  This rating is 
 
         discounted as it is unsupported by the objective evidence in the 
 
         record. 
 
         
 
         
 
         5-2500
 
         Claimant requests that defendants pay for wisdom teeth which were 
 
         extracted subsequent to his work injury.  After his injury, 
 
         claimant required dental work because he had a loose tooth which 
 
         needed to be extracted.  At the same time, the dentist noted that 
 
         his wisdom teeth were in bad shape and recommended that they be 
 
         extracted.  However, the necessity for their removal was not 
 
         related to his accident.  Accordingly, defendants are not liable 
 
         for the bill incurred for this procedure
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAN BOENDER,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950086
 
            L & R MAINTENANCE  and        :
 
            CONSTRUCTION,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dan 
 
            Boender, claimant, against L & R Maintenance & Construction 
 
            Company, identified as employer, and Aetna Casualty, 
 
            insurance carrier, defendants, to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an injury 
 
            sustained on September 8, 1989.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on September 14, 1992, in Ottumwa, Iowa.  The 
 
            claimant was present and testified.  Also present and 
 
            testifying were Deborah Boender, Louis L. Lawson and Larry 
 
            Allgood.  The documentary evidence identified in the record 
 
            consists of exhibits 1 through 8 and defendants' exhibits A 
 
            through D.  The record was considered fully submitted at the 
 
            close of the hearing.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            September 14, 1992, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant's injury was a cause of permanent 
 
            disability and, if so, the extent thereof; and 
 
            
 
                 2.  Whether claimant is entitled to certain medical 
 
            benefits pursuant to Iowa Code section 85.27.
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on November 24, 1956, and completed 
 
            the twelfth grade of school.  Claimant's primary work 
 
            experience has been as a manual laborer.  He commenced 
 
            working for employer in May 1989 and was injured on the job 
 
            on September 8, 1989.  Claimant's injury occurred while he 
 
            was working in a manbasket on a fork lift when it dropped 
 
            and fell 20 feet to the ground.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            on September 8, 1989, claimant was seen in the emergency 
 
            room at Ottumwa Regional Health Center immediately following 
 
            the accident.  Claimant presented with complaints of 
 
            discomfort in his left elbow and a dislodged tooth.  On 
 
            examination he was noted to have a laceration on his chin, a 
 
            contusion to the left elbow and a loose right upper 
 
            premolar.  Claimant denied any neck pain or other 
 
            discomfort.  C-spine films, mandible films and left elbow 
 
            films were negative for any acute fracture (exhibit 1, pages 
 
            1-6).
 
            
 
                 Claimant testified that he was injured on Friday 
 
            afternoon and worked the entire day.  He was paid for 11 
 
            hours on the day he was injured.  He did not work Saturday 
 
            or Sunday but returned to work on Monday and worked nine 
 
            hours.  Initially, for four weeks, he performed light duty 
 
            work but afterwards returned to his previous job and worked 
 
            full time, between 40 and 60 hours per week.  Claimant 
 
            voluntarily quit on November 15, 1990. 
 
            
 
                 On September 12, 1989, claimant saw Thomas J. Bowie, 
 
            D.D.S., for surgical removal of his fractured tooth (ex. 5).  
 
            The next day, claimant reported to the emergency room of 
 
            Ottumwa Regional Health Center for follow-up evaluation.  He 
 
            was seen by J. Howell, M.D.  He complained of anterior chest 
 
            pain.  A chest x-ray was negative for any rib fractures and 
 
            his lungs appeared normal.  The laceration on his chin was 
 
            healed (ex. 1, pp. 7-8).  
 
            
 
                 Claimant returned to Dr. Bowie on September 19, 1989, 
 
            for x-rays and evaluation.  At this time, Dr. Bowie noted 
 
            that claimant's wisdom teeth were in poor shape and he 
 
            recommended that they be removed by Mike Ketcham, an oral 
 
            surgeon (exs. 5, A).
 
            
 
                 Claimant underwent chiropractic treatment from Dr. 
 
            Stanzel for the period from July 13, 1990 through January 2, 
 
            1991 (ex. 7).
 
            
 
                 Claimant was referred by defendant insurance carrier to 
 
            Donald D. Berg, M.D., orthopedic surgeon, for evaluation on 
 
            July 30, 1990.  Claimant presented with complaints of left 
 
            elbow pain and back pain in the dorsal spine area.  X-rays 
 
            of the left elbow were normal.  X-rays of the dorsal and 
 
            lumbar spine showed the height and disc space and vertebral 
 
            bodies to be well maintained with good alignment.  Dr. Berg 
 
            opined that claimant sustained a strain of the muscles and 
 
            ligaments of his dorsal and lumbar areas secondary to the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            manbasket fall at work.  He recommended conservative 
 
            treatment.  He concluded, "...I do not feel that he will 
 
            have any permanent physical impairment secondary to this 
 
            injury, but he may require some therapy and use of muscle 
 
            relaxants to help his back overcome the current tightness."  
 
            (ex. 3, p. 23).
 
            
 
                 On December 17, 1990, claimant presented to Southern 
 
            Iowa Rehabilitation Center for an isometric strength 
 
            analysis of his left elbow.  The results indicated some 
 
            strength impairment (ex. 4, pp. 25-27).
 
            
 
                 Claimant saw Dr. Berg on May 23, 1991.  He presented 
 
            with some back discomfort and sciatic discomfort.  On 
 
            examination, he had good range of motion with negative 
 
            straight leg raising.  Claimant related that he has problems 
 
            with his back flaring up when doing farm work such as riding 
 
            a tractor and sciatic pain when horseback riding.  Dr. Berg 
 
            stated that, "...I cannot state within a certain degree of 
 
            medical certaintly [sic] whether or not his current 
 
            condition is related to his injury of September 8, 1989.  
 
            He's had, I think, some aggravation by doing farm work with 
 
            riding tractors.  As far as his symptoms continuing in the 
 
            future, this is impossible to predict." (ex. 3, p. 21).
 
            
 
                 On April 2, 1992, claimant was re-evaluated at Southern 
 
            Iowa Rehabilitation Center.  He was given a Med X Cervical 
 
            Extension static test.  On April 28, 1992, he was given a 
 
            Med X Lumbar Extension Fatigue Response test.  On May 19, 
 
            1992, he was given a Med X Cervical Extension Fatigue 
 
            Response test (ex. 4, pp. 28-36).  
 
            
 
                 On June 15, 1992, Dr. Stanzel reported to claimant's 
 
            attorney that he reviewed the Med X test results and used 
 
            the Guides to the Evaluation of Permanent Impairment, (3d 
 
            ed) (revised 1990), to reach a 20 percent whole person 
 
            impairment rating (ex. 2, pp. 16-17).  
 
            
 
                                 CONCLUSIONS OF LAW
 
            
 
                 Defendants do not dispute that claimant sustained a 
 
            work-related injury on September 8, 1989.  They contend that 
 
            claimant's injury has not resulted in a permanent 
 
            impairment.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of September 8, 1989, is causally related to the disability 
 
            on which he now bases his claim.  Bodish v. Fischer, Inc., 
 
            133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 In this instance, on June 15, 1992, Dr. Stanzel gave 
 
            claimant a 20 percent whole person impairment rating.  Dr. 
 
            Stanzel's rating is entitled to no weight and consideration 
 
            since he last treated claimant on January 2, 1991, and 
 
            imposed no restrictions at that time.  Claimant returned to 
 
            work immediately after his injury.  He worked light duty for 
 
            four weeks and then returned to construction and maintenance 
 
            work for employer.  He performed the same job that he 
 
            performed at the time of his injury with no restrictions or 
 
            accommodations made by employer.  He worked between 40 and 
 
            60 hours per week and testified that he was able to carry 
 
            around a 70-pound toolbox which he used in order to perform 
 
            his duties.  In addition, claimant worked on his farm and 
 
            assisted in grooming and feeding his horses.  On November 
 
            15, 1990, claimant voluntarily left his job with his 
 
            employer because of dissatisfaction with the work 
 
            environment (ex. C, p. 4).  In May 1991, claimant went to 
 
            work for Mahaska County mowing road sites.  In August 1992, 
 
            claimant took a job with Oskaloosa Engineering running 
 
            machinery.  Claimant is still employed in that capacity.
 
            
 
                 Dr. Berg, an orthopedic surgeon, evaluated claimant in 
 
            July 1990 and May 1991.  Dr. Berg noted on May 23, 1991, 
 
            that claimant had good range of motion of his back and 
 
            negative straight leg raising.  He felt that claimant's 
 
            continued problems with pain may be related to his farm work 
 
            activity and involvement with his horses.  He stated that, 
 
            "...I cannot state has any long term permanent physical 
 
            impairment as he does have good range of motion."  (ex. 3, 
 
            p. 21).
 
            
 
                 Claimant bears the burden of proof.  At most, claimant 
 
            has shown that he has some pain and discomfort in his back.  
 
            He has not shown that his injury has caused a permanent 
 
            impairment or interfered with his ability to perform his 
 
            pre-injury job and other manual labor.  Although Dr. Stanzel 
 
            did impose a rating of impairment, the basis of this rating 
 
            is not supported by the total evidence in the record.  Dr. 
 
            Stanzel had no contact with claimant after January 2, 1991.  
 
            Claimant has no physical restrictions apparent from the 
 
            medical evidence.  Claimant worked without incident at his 
 
            prior occupation for 14 months.  Claimant continues to 
 
            perform manual labor jobs without restrictions.  
 
            
 
                 Accordingly, claimant has not shown by a preponderance 
 
            of the evidence that his work injury has resulted in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            permanent impairment to his back or left elbow.
 
            
 
                 Claimant requests that defendants pay $485 to cover the 
 
            costs of dental services provided by Dr. Ketcham.  Dr. Bowie 
 
            stated that claimant's poor wisdom teeth were not caused by 
 
            his work injury.  Since this treatment was unauthorized and 
 
            unrelated to claimant's work injury, defendants are not 
 
            liable for the costs thereof.
 
            
 
                 This issue is dispositive of the entire case and 
 
            further analysis is unnecessary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The parties shall pay their own costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Lance Grotewold
 
            Attorney at Law
 
            118 N. Market
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Bldg
 
            Des Moines, Iowa  50309
 
            
 
            
 
                 
 
            
 
 
         
 
 
 
 
 
         
 
                                          51803 52500
 
                                          Filed September 17, 1992
 
                                          Jean M. Ingrassia
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         DAN BOENDER,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                File No. 950086
 
         L & R MAINTENANCE  and   
 
         CONSTRUCTION,  
 
                                           A R B I T R A T I O N
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         AETNA CASUALTY & SURETY, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         51803
 
         Claimant has failed to show by a preponderance of the evidence 
 
         that his work injury resulted in permanent disability. 
 
         Claimant was working in a manbasket on a fork lift when it 
 
         dropped and fell 20 feet to the ground.  He injured his chin and 
 
         left elbow.  Dental work was required.  Claimant lost no time 
 
         from work but was temporarily put on light duty for about four 
 
         months.  Thereafter, he returned to his usual job and worked 14 
 
         months until he voluntarily quit on November 15, 1990.  Claimant 
 
         was given no work restrictions.  He had persistent complaints of 
 
         back pain but an orthopedic examination revealed normal range of 
 
         motion and negative straight leg raising.  Claimant received 
 
         chiropractic treatments from July 1990 through January 1991.  In 
 
         June 1992, claimant's chiropractor gave him a 20 percent 
 
         permanent impairment rating but no restrictions.  This rating is 
 
         discounted as it is unsupported by the objective evidence in the 
 
         record. 
 
         
 
         52500
 
         Claimant requests that defendants pay for wisdom teeth which were 
 
         extracted subsequent to his work injury.  After his injury, 
 
         claimant required dental work because he had a loose tooth which 
 
         needed to be extracted.  At the same time, the dentist noted that 
 
         his wisdom teeth were in bad shape and recommended that they be 
 
         extracted.  However, the necessity for their removal was not 
 
         related to his accident.  Accordingly, defendants are not liable 
 
         for the bill incurred for this procedure.
 
         
 
 
            
 
          
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ANN SEE,                      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950142
 
            TONE BROTHERS,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ann See, 
 
            claimant, against Tone Brothers, employer, and Kemper 
 
            Insurance, insurance carrier, defendants, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on May 3, 1990.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on May 17, 1993, in Des Moines, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  Also 
 
            present and testifying were Kim Schibner and Bernice Couch.  
 
            The documentary evidence identified in the record consists 
 
            of joint exhibits 1 through 9.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated May 17, 1993, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 .  Whether claimant is entitled to temporary total or 
 
            healing period benefits and, if so, the dates thereof;
 
            
 
                 .  Whether claimant is entitled to permanent partial 
 
            disability and, if so, the extent of such benefits;
 
            
 
                 .  Whether claimant is entitled to payment for an 
 
            independent medical examination pursuant to industrial 
 
            commissioner 85.39; and
 
            
 
                 .  Whether claimant is entitled to medical expenses 
 
            under Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on November 16, 1938, and graduated 
 
            from high school in 1956.  Her work activity prior to June 
 
            1978 was as an office worker, typist, clerk, store clerk, 
 
            and kitchen helper.  In June 1978 she commenced working for 
 
            employer.  She worked on the line and in the warehouse 
 
            preparing orders.  On May 3, 1990, while employed by 
 
            employer she tripped over some cardboard and fell to the 
 
            ground, twisting her lower back.  She completed the work day 
 
            and worked the entire next day.  On May 7, 1990, she 
 
            presented to Anthony J. Sciorrotta, D.O., with complaints of 
 
            back pain and left lower extremity pain.  Dr. Sciorrotta 
 
            diagnosed right shoulder strain and left low back strain 
 
            with spasm.  He recommended a return to work with a 25-pound 
 
            lifting restriction.  Claimant followed up with Dr. 
 
            Sciorrotta on May 8, 1990, and complained that she had 
 
            marked discomfort while performing her job.  She was taken 
 
            off work and prescribed medication and physical therapy.  
 
            Claimant's condition remained unchanged and Dr. Sciorrotta 
 
            referred her to Mark B. Kirkland, D.O., for an orthopedic 
 
            evaluation (exhibit 1, pages 1-5).  
 
            
 
                 Claimant saw Dr. Kirkland on May 23, 1990.  On physical 
 
            examination she had a normal gait and good toe and heel 
 
            walking.  With her knee straight, she was able to bend over 
 
            and touch her fingers to her toes without any difficulty.  
 
            She had some pain in her lower back area.  She had negative 
 
            straight leg raising in the sitting position.  X-rays 
 
            revealed some narrowing of the L5-S1 joint space.  Dr. 
 
            Kirkland's diagnosis was myofascial low back pain and 
 
            degenerative disc disease at L5-S1.  He concluded that she 
 
            did not have a herniated disc because there were no 
 
            objective findings.  He recommended a continuation on 
 
            Voltaren and a work hardening program (ex. 2, p. 1).  
 
            
 
                 Claimant returned to Dr. Sciorrotta and a conservative 
 
            therapy program was instituted which included pool therapy 
 
            (ex. 1, pp. 5-6).  Claimant continued to experience pain in 
 
            her lower back and left leg with some stiffness in her lower 
 
            back and intermittent numbness and tingling in both legs, 
 
            the left worse than the right and some muscle spasms and 
 
            with intermittent cough and sneeze aggravation.  She had 
 
            difficulty sitting or standing for prolonged periods of 
 
            time.  Therefore, Dr. Sciorrotta recommended an MRI scan 
 
            (ex. 1, p. 7).  On June 25, 1990, claimant underwent an MRI 
 
            of the lumbar spine at Mercy Hospital Medical Center.  This 
 
            showed degenerative disc disease at L4-5 with diffuse disc 
 
            protrusion and lateral extension into the left 
 
            intervertebral foramen (ex. 3, pp. 1-2).
 
            
 
                 Based on the results of the MRI scan, Dr. Sciorrotta 
 
            recommended epidural injections to be performed at Mercy 
 
            Block Center.  These resulted in no significant relief and 
 
            she was referred to Kevin Smith, M.D., for institution of a 
 
            work hardening program.  On August 7, 1990, she had a third 
 
            of her cortisone shots into the back and was seen by Dr. 
 
            Smith on August 14, 1990.  He recommended a general 
 
            conditioning program and discussed the possibility of a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            return to work.  However, she obtained no improvement of her 
 
            symptoms and was then referred to Joshua D. Kimmelman, D. 
 
            O., for evaluation (ex. 3).
 
            
 
                 On July 30, 1990, Kemper Insurance assigned claimant's 
 
            case to Louise Lear, R.N., B.S.N., M.A., medical 
 
            rehabilitation coordinator for Professional Rehabilitation 
 
            Management.  Claimant was interviewed by Ms. Lear on August 
 
            6, 1990.  Ms. Lear followed claimant in August 1990 and 
 
            accompanied her on her appointment with Dr. Kimmelman which 
 
            was scheduled for September 12, 1990.  According to Ms. 
 
            Lear, Dr. Kimmelman ordered another MRI examination (ex. 4, 
 
            pp. 1-16).  
 
            
 
                 A repeat MRI of the lumbar spine was performed on 
 
            January 8, 1991, at Mercy Hospital Medical Center.  It 
 
            revealed degenerative disc disease at L4-L5 with associated 
 
            facet arthropathy and diffuse asymmetrical disc protrusion 
 
            greater on the left side with no evidence of progression or 
 
            new abnormality in comparison to the prior study of June 25, 
 
            1990 (ex. 3, pp. 3-4).  
 
            
 
                 Ms. Lear's notes indicate that claimant was in 
 
            California from September 26 to December 19, 1990, due to 
 
            her father's emergency surgery and her mother's medical 
 
            problems.  Therefore, she was not seen again by Dr. 
 
            Kimmelman until January 15, 1991.  Unfortunately, the record 
 
            does not contain Dr. Kimmelman's office notes from either 
 
            September 12, 1990 or January 15, 1991.  However, Ms. Lear 
 
            reports that Dr. Kimmelman ordered pool therapy (ex. 4, pp. 
 
            17-20).
 
            
 
                 The record does contain progress notes written by Dr. 
 
            Kimmelman pertinent to a February 15, 1991, visit with 
 
            claimant.  He reported that most of claimant's pain tends to 
 
            be in her leg.  It was his opinion that she had reached 
 
            maximum medical improvement since she continued to be 
 
            symptomatic despite efforts at rehabilitation.  On February 
 
            19, 1991, Dr. Kimmelman opined that claimant is 5 percent 
 
            permanently impaired as to her herniated nucleus pulposa.  
 
            He certified that she had recovered sufficiently to return 
 
            to light regular duties with restricted lifting over 10 
 
            pounds and no bending or twisting (ex. 5, pp. 1-2).  
 
            
 
                 Subsequent to Dr. Kimmelman's assessment, Ms. Lear 
 
            contacted employer to determine whether there was a job 
 
            available for claimant within her restrictions.  She was 
 
            informed that employer was unable to provide claimant with a 
 
            light duty position.  Claimant's case was then transferred 
 
            to Bernice Couch, a vocational rehabilitation coordinator, 
 
            for assistance in vocational planning (ex. 4, pp. 21-24).  
 
            
 
                 On April 10, 1991, claimant was again seen by Dr. 
 
            Kimmelman.  It was his opinion that she could return to work 
 
            in a restricted or sedentary, light duty-type capacity.  He 
 
            also recommended vocational rehabilitation (ex. 5, p. 3).
 
            
 
                 Claimant's symptoms continued.  On April 30, 1991, she 
 
            was seen by Martin S. Rosenfeld, D.O.  She was diagnosed as 
 
            having chronic facet syndrome with left sciatica.  His 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            treatment included a weight reduction program of 
 
            approximately 35 pounds and back exercises (ex. 2, p. 3).
 
            
 
                 Claimant returned to Dr. Kimmelman on June 18, 1991.  
 
            He felt that she had an unchanged physical examination with 
 
            increasing level of symptoms.  Physical therapy was again 
 
            recommended.  She continued to see Dr. Kimmelman in 
 
            follow-up, and more epidural or cortisone shots in the back 
 
            were recommended.  On August 29, 1991, Dr. Kimmelman 
 
            released her to light duty with a 10-pound lifting 
 
            restriction (ex. 5, p. 6).  
 
            
 
                 Being dissatisfied with this determination, claimant's 
 
            attorney referred her to Jerome G. Bashara, M.D., orthopedic 
 
            surgeon for an independent medical examination.  Dr. Bashara 
 
            evaluated claimant on November 14, 1991, and his evaluation 
 
            is part of the record in this case (ex. 6, pp. 1-4).  Dr. 
 
            Bashara also testified in a deposition on March 8, 1993.  
 
            His deposition is also part of the record in this case (ex. 
 
            9).  He diagnosed a herniated lumbar disc at L4-5, central 
 
            and left.  He recommended a 10-pound lifting restriction 
 
            with no excessive or repetitive bending, stooping or 
 
            twisting of the lower back.  He suggested a treatment 
 
            regimen of nonsteroidal anti-inflammatory drugs, epidural 
 
            steroid injections, restricted activity and physical 
 
            therapy, as necessary.  He gave claimant a 9 percent 
 
            permanent partial physical impairment rating related to her 
 
            disc injury.  He testified that her herniated disc was 
 
            directly related to her work accident on May 3, 1990.  
 
            
 
                 Claimant returned to Dr. Kimmelman on January 21, 1992.  
 
            On examination, she was able to heel and toe stand without 
 
            evidence of weakness.  She had good extension, side bending 
 
            and rotation without paravertebral spasm.  While seated, 
 
            straight leg raising was negative.  Dr. Kimmelman was unable 
 
            to explain why claimant had not responded to conservative 
 
            therapy over the last 20 months.  He felt that an evaluation 
 
            by Daniel McGuire, M.D., was appropriate.  He reiterated 
 
            that she had reached maximum medical improvement on February 
 
            15, 1991 (ex. 5, pp. 7-8).  
 
            
 
                 Claimant saw Dr. McGuire on January 27, 1992.  Claimant 
 
            presented with complaints of low back and left buttock pain, 
 
            extreme pain in her left hip and down her left leg.  EMG 
 
            studies were obtained and showed no nerve damage.  Based on 
 
            a review of prior laboratory tests and current physical 
 
            examination, Dr. McGuire's impression was persistent low 
 
            back and right leg pain consistent with degenerative 
 
            spondylolisthesis/spinal stenosis.  He considered surgery 
 
            for relief of pain but first recommended a myelogram/CT scan 
 
            for further evaluation (ex. 7, pp. 1-4).  
 
            
 
                 Dr. McGuire testified in a deposition on April 21, 
 
            1993.  He indicated that he saw claimant on three occasions:  
 
            January 27, February 7 and May 18, 1992.  Exhibit 7 contains 
 
            his office notes from the January 27 and May 18, 1992 
 
            appointments.  In reference to the February 7, 1992 visit, 
 
            Dr. McGuire testified that he discussed the diagnostic 
 
            studies (myelogram/CT scan) with claimant.  He explained 
 
            that the tests showed degenerative spondylolisthesis (a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            long-standing problem which was at the root of her leg and 
 
            back pain).  He offered surgery and explained the risks and 
 
            success rate (ex. 8, p. 19).  
 
            
 
                 On May 18, 1992, claimant followed up with Dr. McGuire.  
 
            She reported increasing symptoms in her back and leg.  He 
 
            advised her that he would be willing to do a decompression 
 
            to take the pressure off the nerve roots and a fusion (ex. 
 
            7, p. 5).  
 
            
 
                 On July 17, 1992, claimant returned to Dr. Bashara.  He 
 
            testified that he agreed with Dr. McGuire's assessment that 
 
            a lumbar laminectomy would decrease claimant's back and left 
 
            leg pain.  He stated that in his opinion, the degenerative 
 
            changes were directly related to the May 3, 1990 injury, 
 
            because in claimant's case, she had no pre-injury complaints 
 
            of back pain (ex. 9, pp. 16-17).  
 
            
 
                 Dr. McGuire testified that claimant's back pain is due 
 
            to disc degeneration which was present prior to the May 1990 
 
            fall at work and if she had not fallen she would eventually 
 
            have had symptoms in view of the magnitude of the changes 
 
            seen on the myelogram/CT scan (ex. 8, pp. 35-37).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is the extent of 
 
            claimant's entitlement to healing period benefits.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 The record indicates that Dr. Kimmelman released 
 
            claimant to return to work on February 15, 1991, and at that 
 
            time gave her a 5 percent permanent impairment rating (ex. 
 
            5, p. 1).  Bernice Couch scheduled an appointment with Dr. 
 
            Kimmelman on April 10, 1991, to clarify work restrictions.  
 
            A report of this consultation was made by Ms. Couch on April 
 
            12, 1991.  She reported as follows,  "...Dr. Kimmelman is 
 
            not recommending that she secure employment where she sits 
 
            for an eight hour period.  Employment where Ann can 
 
            alternate sit, stand and walk option.  He is also not 
 
            limiting her to no bending or twisting but is limiting her 
 
            to the repetitive lifting, bending, twisting...." (ex. 4, p. 
 
            32).  On January 21, 1992, Dr. Kimmelman reiterated that 
 
            claimant has been at maximum medical improvement since 
 
            February 15, 1991 (ex. 5, p. 8).  
 
            
 
                 In discussing the concept of healing period as 
 
            contemplated by Iowa Code section 85.34(1), the Kubli court 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            observed that recuperation refers to that condition in which 
 
            healing is complete and the extent of the disability can be 
 
            determined.  The healing period generally terminates at the 
 
            time the attending physician determines that the employee 
 
            has recovered as far as possible from the effects of the 
 
            injury.  When a permanent rating is given, it indicates that 
 
            the physician does not expect the claimant to improve and 
 
            this conclusion meets the criteria of Iowa Code section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Ia. Ct. App. 1984).  The finding of a 
 
            determination of healing period necessarily precludes the 
 
            discussion of a running award.  Hoskins v. Quaker Oats, Vol 
 
            2. No. 1 Iowa Industrial Commissioner Decisions, 181, 185 
 
            (App. 1985).
 
            
 
                 Based on the medical records and the opinion of 
 
            claimant's treating physician, claimant's healing period 
 
            ended on February 15, 1991 (ex. 5, pp. 1-2 & 7-8). 
 
            
 
                 The next issue to be determined is the extent of 
 
            claimant's permanent disability.  Claimant's disability is 
 
            an industrial disability.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of May 3, 1990, is causally related to the disability on 
 
            which she now bases her claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 The claimant was born on November 16, 1938.  She was 52 
 
            years old at the time of the injury and is currently 54 
 
            years old.  Claimant is an individual of advanced age and 
 
            her proximity to normal retirement age affects her 
 
            industrial disability.  Compared to a younger worker with 
 
            the same injury, claimant has lost less future earning 
 
            capacity as a result of her injury.  Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision  1979); Merrill v. Eaton 
 
            Corp., file 777565 (Appeal Decision 1990).  Claimant has 
 
            functional impairment ratings of 5 percent and 9 percent.  
 
            Her treating physician limited her to lifting 10 pounds and 
 
            no repetitive bending or twisting.  Claimant has 
 
            self-limiting restrictions and testified that there is no 
 
            work activity she is able to perform in view of her constant 
 
            pain.  
 
            
 
                 As to claimant's pain, on November 20, 1992, she filed 
 
            an original notice and petition under Iowa Code section 
 
            85.27 and rule 343 IAC 4.48 requesting defendants to 
 
            authorize the surgical procedure recommended by Dr. McGuire.  
 
            However, at the hearing, claimant testified that she was no 
 
            longer interested in undergoing a lumbar laminectomy but 
 
            instead wanted the money in order to pursue laser surgery in 
 
            Omaha, Nebraska.  No physician who has treated and/ examined 
 
            claimant has recommended this procedure.  In fact, Dr. 
 
            McGuire characterized it as "experimental" and did not 
 
            foresee that she would be a candidate for laser surgery.  He 
 
            recommended a laminectomy because the main pressure causing 
 
            pain is coming from the thick ligament and the big overgrown 
 
            spurs that are pushing on the nerves (ex. 8, p. 61).  Dr. 
 
            McGuire explained claimant's problem as a facet joint 
 
            arthropathy where the facet joints get big with spurs and 
 
            spinal stenosis where the canal space gets smaller by the 
 
            disc bulging out.  He testified that such surgery is usually 
 
            effective in alleviating some of the back and leg symptoms 
 
            (ex. 8, pp. 15-19).  Dr. Bashara concurred with Dr. McGuire 
 
            that surgery would improve claimant's condition (ex. 6, p. 
 
            8).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 As previously noted, claimant at the present time has 
 
            refused to undergo the surgery recommended by Dr. Bashara 
 
            and Dr. McGuire.  Defendants request a reduction in 
 
            industrial disability due to her refusal.  A reduction in 
 
            benefits is justified only if the refusal is unreasonable.  
 
            To determine if a refusal is unreasonable, a balancing test 
 
            is used, weighing the risks of the procedure versus the 
 
            predicted benefits.  Here, both physicians acknowledge that 
 
            surgery would improve claimant's condition and minimize her 
 
            restrictions.  Since no doctor can force an individual to 
 
            undergo surgery, surgery is always an option to be accepted 
 
            or rejected by the claimant.  However, in this case, 
 
            claimant contends that she is unable to work due to severe 
 
            pain.  She contends that the combination of pain and an 
 
            inability to work makes her 100 percent disabled.  The 
 
            medical evidence does not support her contentions.  Claimant 
 
            was released for light duty in February 1991 by her treating 
 
            physician.  Dr. Kimmelman did not consider her permanently 
 
            and totally disabled.  In other words, he felt that despite 
 
            her pain, she was able to work, albeit with restrictions.  
 
            Claimant has refused surgery despite the 50-50 chance of 
 
            success in alleviating her symptoms.  This is claimant's 
 
            choice. 
 
            
 
                 Employer's are responsible for the reduction in 
 
            earnings capacity caused by the injury.  They are not 
 
            responsible for a loss of actual earnings because the 
 
            employee resists or refuses to return to work.  Williams v. 
 
            Firestone Tire and Rubber Co., III Iowa Industrial 
 
            Commissioner Report 279 (1982). 
 
            
 
                 Employer offered claimant private vocational 
 
            rehabilitation and assistance in finding work.  Ms. Couch 
 
            testified that claimant's motivation to return to work is 
 
            suspect.  Although claimant has listed numerous jobs for 
 
            which she has applied, the seriousness of her attempt to 
 
            find work in the competitive employment market is 
 
            questionable, especially in view of the fact that she has 
 
            applied for social security disability benefits and it is to 
 
            her advantage not to be employed during the process.  
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit from a serious attempt to find work in the 
 
            competitive employment market.  Hild v. Natkin & Co., I Iowa 
 
            Industrial Commissioner Report 144 (Appeal Decision 1981); 
 
            Beintema v. Sioux City Engineering Co., II Iowa Industrial 
 
            Commissioner Report 24 (1981); and Cory v. Northwestern 
 
            States Portland Cement Company, Thirty-third Biennial Report 
 
            of the Industrial Commissioner 104 (1976).  
 
            
 
                 Based upon the foregoing factors and all the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            25 percent industrial disability.  
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to $475 for the medical examination of Dr. Bashara 
 
            as an independent medical examination under Iowa Code 
 
            section 85.39.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 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. 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 determined that claimant is entitled to $475 for 
 
            the medical examination of Dr. Bashara as an independent 
 
            medical examination under Iowa Code section 85.39.  It is 
 
            not necessary for claimant to obtain the prior approval of 
 
            defendants or file an application with the industrial 
 
            commissioner's office prior to seeing an independent 
 
            examiner.  It is not necessary for claimant to apply for 
 
            reimbursement for an independent medical examination by a 
 
            physician of her choice prior to the examination or prior to 
 
            hearing.  Pirozek v. Swift Independent Packing and Second 
 
            Injury Fund of Iowa, file nos. 753643, 753642, 724893 (App. 
 
            Dec. 1987).  The only condition precedent is a medical 
 
            examination by an employer retained physician.  
 
            Reimbursement comes into play when, as in this case, 
 
            defendants' liability is established.  McSpadden, 288 N.W.2d 
 
            181.  
 
            
 
                 An application for an independent medical examination 
 
            under Iowa Code section 85.39 need not precede the 
 
            examination if the claimant is satisfied to wait until the 
 
            hearing to be reimbursed provided that this is designated as 
 
            a hearing issue on the hearing report and order.  Dr. 
 
            Kimmelman gave claimant a permanent impairment rating in 
 
            February 1991.  Dr. Bashara's evaluation was in November 
 
            1991, which was subsequent to Dr. Kimmelman's evaluation.  
 
            Iowa Code section 85.39 entitles claimant to be reimbursed 
 
            for Dr. Bashara's evaluation.
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to payment of submitted medical costs in the amount 
 
            of $416.50.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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 
 
            Construction Specialists, Inc., file number 850096 (Appeal 
 
            Decision July 31, 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 referral from defendant 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 should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgement.  Assman v. Blue Star Foods, Inc., file no. 866389 
 
            (declaratory Ruling, May 18, 1988).
 
            
 
                 Medical expenses contained in claimant's summary of 
 
            outstanding medical bills were reviewed.  The dates of 
 
            service were compared with the description of services 
 
            contained on the bills and the identity of the providers.  
 
            The same are found to be consistent with the treatment that 
 
            claimant received for her work-related back condition.  
 
            Defendants are therefore responsible for full payment of 
 
            those expenses.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants pay to claimant thirty-seven point two 
 
            eight six (37.286) weeks of healing period benefits at the 
 
            rate of two hundred sixteen and 06/100 dollars ($216.06) per 
 
            week for the period from May 30, 1990 through February 15, 
 
            1991.
 
            
 
                 That defendants pay to claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at the 
 
            rate of two hundred sixteen and 06/100 dollars ($216.06) per 
 
            week commencing February 16, 1991.
 
            
 
                 That defendants pay four hundred seventy-five dollars 
 
            ($475) for an independent medical examination conducted by 
 
            Jerome E. Bashara, M.D.
 
            
 
                 That defendants pay medical expenses of four hundred 
 
            sixteen and 50/100 dollars ($416.50) pursuant to Iowa Code 
 
            section 85.27.
 
            
 
                 That defendants receive credit for all benefits 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            previously paid.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency 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. W. Michael Murray
 
            Attorney at Law
 
            2323 Grand Ave.
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa  50309
 
            
 
 
         
 
        
 
         
 
                                           51802 51803 52502 52501
 
                                           Filed June 7, 1993
 
                                           Jean M. Ingrassia
 
                  
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         ANN SEE,  
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                              File No. 950142
 
         TONE BROTHERS, 
 
                                          A R B I T R A T I O N
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         KEMPER INSURANCE,   
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         51802
 
         Claimant awarded healing period benefits from May 30, 1990, the 
 
         date of her injury, to February 15, 1991, when her treating 
 
         physician indicated that she had reached maximum medical 
 
         improvement.
 
         
 
         51803
 
         Claimant awarded 25 percent permanent partial disability 
 
         benefits.  Claimant, a 54-year-old woman, sustained a back injury 
 
         in May 1990.  She was released for light duty in February 1991 
 
         with restrictions but employer had no job for her to perform.  
 
         She was assigned a vocational rehabilitation counselor with whom 
 
         she was less than cooperative.  Claimant admitted at the hearing 
 
         that she was reluctant to undergo surgical intervention which 
 
         would improve her back and leg pain.  She felt that she was 
 
         unable to work with this pain and was less than aggressive in 
 
         finding work.  
 
         
 
         52502
 
         Claimant awarded $475 for an independent medical examination 
 
         performed by Jerome E. Bashara, M.D.  A prior evaluation and 
 
         permanency rating was made by employer's physician.  Claimant was 
 
         dissatisfied with the 5 percent functional impairment rating from 
 
         employer's physician and sought an independent medical 
 
         examination.  
 
         
 
         52501
 
         Claimant found entitled to medical expenses under Iowa Code 
 
         section 85.27.  Defendants had previously denied liability and 
 
         therefore could not direct claimant's medical care.  Expenses 
 
         incurred were related to treatment of claimant's work injury.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          
 
            ROBERT FIEDLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950290
 
            WILSON FOODS,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant                :
 
                                          :
 
            ___________________________________________________________
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            Fiedler, claimant, against his employer, Wilson Foods 
 
            Corporation.  Claimant's petition alleges that he sustained 
 
            an injury on May 2, 1990, which arose out of and in the 
 
            course of his employment.   While defendant admits that 
 
            claimant sustained a work-related injury, it argues that it 
 
            was a cumulative injury, claimant stopped working on October 
 
            10, 1991, and that the correct date of injury is October 10, 
 
            1991.
 
            
 
                 The record in the case consists of testimony from the 
 
            claimant, Jean Cummins and Michael Payne; and, joint 
 
            exhibits 1-42.  The matter came on for hearing on February 
 
            8, 1994, at Storm Lake, Iowa. 
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury to a scheduled 
 
            member, or whether claimant sustained an injury to the body 
 
            as a whole; and,
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            disability benefits. 
 
            
 
                                 FINDINGS OF FACTS
 
            
 
                 The undersigned, having reviewed all of the evidence 
 
            received, finds the following facts: 
 
            
 
                 Claimant, Robert Fiedler, was born on March 6, 1949.  
 
            At the time of the hearing, he was 44 years of age.  
 
            
 
                 Claimant attended school at Remson St. Mary's through 
 
            the eighth grade.  He was 13 years old when he left school 
 
            to help his father on the farm.  Claimant is dyslexic, and 
 
            has difficulties working with numbers, which also prompted 
 
            him to leave school. 
 
            
 

 
            
 
            Page   2
 
            
 
            
 
                 From 1967 to 1968, claimant worked as a stick welder at 
 
            Lundall Manufacturing in Cherokee, Iowa.  He received 
 
            on-the-job training.  
 
            
 
                 In 1968, claimant was drafted into the United States 
 
            Navy.  He served for almost two years, and was stationed in 
 
            Japan.  He received additional training in welding. 
 
            
 
                 When claimant was discharged, he returned to work at 
 
            Lundall's, but within one or two weeks applied for and was 
 
            offered a position with the defendant, Wilson Foods.  
 
            Claimant explained that Wilson provided some of the best 
 
            paying jobs in the area.  A pre-employment physical was 
 
            passed without the imposition of work restrictions.   
 
            
 
                 During claimant's tenure with the employer, he has 
 
            witnessed the company progress through many changes.  
 
            
 
                 Claimant spent nearly 17 years on the cut floor, where 
 
            his job required him to process carcasses by cutting them 
 
            into loins, hams and picnics.  He worked 40 to 45 hours per 
 
            week.  Claimant described his department as a "labor pool" 
 
            where workers were dispatched to any area which needed help 
 
            on a particular day.  As such, claimant has experience on 
 
            the kill floor, in the pace boning area, and on the loading 
 
            dock.  In fact, claimant has worked in every department in 
 
            the plant with the exception of the rendering, livestock 
 
            receiving and boning areas.
 
            
 
                 In the 70s, Wilson stopped the beef kill operations, 
 
            and in 1986, discontinued the hog kill operations.  
 
            Currently, it is strictly a processing plant. 
 
            
 
                 In 1987, claimant was working in the plant stylexing 
 
            hams.  This required him to use a meat hook in his right 
 
            hand, grab a ham (weighing 17 to 50 pounds) from the line in 
 
            front of him, use a whizzer knife to defat the ham, and send 
 
            the ham down the line.  He stylexed approximately 125 hams 
 
            per hour.  
 
            
 
                 The repetitive nature of claimant's work led him to 
 
            undergo bilateral carpal tunnel release surgery in May of 
 
            1990.  (Joint Exhibits. 11-14)  The treating physician 
 
            (Thomas Ferlic, M.D.) determined that he had sustained five 
 
            percent impairment to each hand due to the syndromes.  (Jt. 
 
            Ex. 15)  A second opinion was secured from Thomas DeBartolo, 
 
            M.D.  He determined claimant had sustained a 10 percent 
 
            impairment to the right upper extremity and a 6 percent 
 
            impairment to the left upper extremity due to the carpal 
 
            tunnel syndromes.  (Jt. Ex. 16)   Claimant started to notice 
 
            pain and numbness in his right shoulder and upper arm area.  
 
            It should  be noted that at this time, claimant was working 
 
            on the hot dog line.   The job duties required of a worker 
 
            on the hot dog line include retrieving empty boxes from a 
 
            shelf located six to eight inches overhead, placing the 
 
            boxes on a conveyor belt, scooping up hot dogs with both 
 
            hands and filling the boxes, and shoving the boxes down the 
 
            line.  Claimant uses his right upper extremity to retrieve 
 
            the boxes, and his left upper extremity to push the box down 
 
            the line.   
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 Claimant reported the condition to the company. (Jt. 
 
            Exs. 1, 41)  He received sporadic treatment, including 
 
            physical therapy at the plant.  Eventually, he was referred 
 
            to Scott Neff, M.D., who performed an arthrogram, and 
 
            diagnosed a torn rotator cuff in the right shoulder.  
 
            Claimant underwent surgery in October of 1991 to repair the 
 
            condition.  (Jt. Exs. 31 and 32)
 
            
 
                 Claimant was released to return to light duty work in 
 
            December of 1991, and returned to full duty in February of 
 
            1992.  He returned to the hot dog line, the same job he held 
 
            prior to the surgery.  Claimant believed that his work 
 
            restrictions included no lifting with his right arm of more 
 
            than 25 pounds at or above shoulder level, and no lifting 
 
            with both arms greater than 50 pounds at or above shoulder 
 
            level.  Claimant was given a 6 percent impairment to the 
 
            right upper extremity, which equates to a 3 percent 
 
            impairment to the body as a whole.  This information was 
 
            provided in various reports submitted by Dr. Neff, as well 
 
            as Dr. Neff's deposition testimony.  (Jt. Exs. 17-29; 36)   
 
            While claimant is able to perform his duties, he stated that 
 
            reaching up to get the boxes aggravates the constant pain in 
 
            his right shoulder and upper arm.  Overall, claimant has 
 
            demonstrated normal range of motion of the shoulder, but 
 
            still feels pain on a regular basis. 
 
            
 
                 Claimant underwent an independent medical examination, 
 
            performed by Michael Crane, M.D.  He believed claimant's 
 
            work at Wilson Foods caused claimant's shoulder problems.  
 
            He determined that claimant had sustained a 10 percent 
 
            impairment to the right upper extremity.  (Jt. Exs. 34 and 
 
            35)
 
            
 
                 Claimant has been an excellent employee, having missed 
 
            little time from work as demonstrated by his attendance 
 
            records.  (Jt. Ex. 39)
 
            
 
                 During the past five years, claimant has earned the 
 
            following wages:  $25,445.00 (1988); $25,213 (1989); $22,162 
 
            (1990); $20,350 (1991); and $20,942 (1992).  These figures 
 
            do not reflect the workers' compensation payments received 
 
            by claimant during these years.  (Jt. ex. 40)  Claimant 
 
            continues to work a substantial amount of overtime, 
 
            including 577 hours during 1993.  Most of the overtime has 
 
            been voluntary.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 After reviewing the evidence, it is determined that 
 
            defendant's argument regarding the injury date is correct.  
 
            Claimant has sustained a cumultive injury, and he left work 
 
            due to the injury on October 10, 1991.  October 10, 1991 is 
 
            the correct injury date, and claimant's petition is amended 
 
            to reflect the correct date.  See, Johnson v. George Hormel 
 
            & Company (App. Dec. June 21, 1988).
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained an injury to his right arm or whether claimant has 
 
            sustained an injury to the body as a whole.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 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.
 
            
 
                 Apparently, defendant is of the view that claimant's 
 
            shoulder injury has caused disability only to the upper 
 
            extremity, and should be compensated as a scheduled loss.  
 
            Claimant believes his disability is to the body as a whole, 
 
            and should be compensated industrially.
 
            
 
                 Evidently, defendant relies on a recent agency decision 
 
            which determined that a claimant, who sustained a shoulder 
 
            injury, should be compensated by one schedule.  See, Prewitt 
 
            v. Firestone Tire and Rubber Company (Appl. Dec., August 12, 
 
            1992).  In Prewitt, medical testimony and documentation was 
 
            used to show that claimant's actual disability was confined 
 
            to the arm, and specifically denied that the disability was 
 
            to the body as a whole.  Prewitt confirmed that it is the 
 
            situs of the impairment which determines whether the 
 
            schedules in section 85.34(2)"a" -"t" are applied.  Lauhoff 
 
            Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
            
 
                 In the case at bar, it is determined that claimant's 
 
            impairment extends to the body.  He is restricted from some 
 
            lifting activities at or above shoulder level.  The surgery 
 
            involved the muscles and joints on the body side, rather 
 
            than the arm.  Claimant's residual pain is in his shoulder.  
 
            As a result, he has sustained an injury to the body as a 
 
            whole, and should be compensated industrially.
 
            
 
                 The next issue to be determined is claimant's 
 
            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 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 
 

 
            
 
            Page   5
 
            
 
            
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            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).
 
            
 
                 At the time of the hearing, claimant was 44 years of 
 
            age, and he anticipated working at Wilson Foods until he 
 
            retires at the age of 62.  If his past performance is any 
 
            indication of his future work habits, claimant will continue 
 
            to be an extremely productive employee for Wilson Foods for 
 
            the next 18, or more, years.  
 
            
 
                 Claimant has sustained a serious condition due to the 
 
            repetitive nature of his work.  Yet, he has had a very 
 
            successful surgery and overall rehabilitation.  Much of this 
 
            success can be attributed to claimant's motivation. 
 
            
 
                 Mr. Fiedler's wages have stayed fairly constant 
 
            throughout the past five years.  While claimant has held 
 
            jobs that demanded a higher bracket rating, at the time of 
 
            his shoulder injury, he was working at a two bracket job.  
 
            Presently, claimant still holds the same job he held at the 
 
            time he left work for shoulder surgery. 
 
            
 
                 Claimant's overall recovery time was relatively short, 
 
            having had surgery in October of 1991 and having been 
 
            released for full-duty work in February of 1992.  Again, 
 
            much to the claimant's credit, he has had a successful 
 
            return to work, and has missed little, if any, time from 
 
            work due to his physical condition.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
                 After considering all of the factors enumerated above, 
 
            including claimant's ability to perform the same job he 
 
            performed prior to the injury; claimant's earnings; the 
 
            success of the surgery; his overall physical condition, 
 
            including the residual impairment from the carpal tunnel 
 
            releases; and, claimant's motivation to work, the 
 
            undersigned determines that claimant has sustained a 5 
 
            percent industrial disability. 
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant has sustained a cumulative injury and 
 
            left work on October 10, 1991.
 
            
 
                 That defendant shall pay claimant permanent partial 
 
            disability benefits for twenty-five (25) weeks at the rate 
 
            of two hundred seventy-eight and 85/100 dollars ($278.85) 
 
            per week beginning April 6, 1992.
 
            
 
                 That defendant shall receive credit for permanent 
 
            partial disability benefits previously paid.
 
            
 
                 That defendant shall pay interest on the award as 
 
            governed by Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action.
 
            
 
                 That defendant shall file a claims activity report as 
 
            provided by the agency.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Steve Hamilton
 
            606 Ontario St
 
            Attorney at Law
 
            P O Box 188
 
            Storm Lake IA 50588
 
            
 
            Mr Charles T Patterson
 
            John D. Ackerman
 
            Attorneys at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed February 22, 1994
 
                                              Patricia J. Lantz
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          
 
            ROBERT FIEDLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950290
 
            WILSON FOODS,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant                :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant sustained a cumulative injury to the shoulder.  The 
 
            situs of his impairment was to the shoulder and body.
 
            Claimant awarded 5% industrial disability based on a 3% 
 
            functional impairment to the body as a whole; 25-50 pound 
 
            lifting restriction; ability to successfully return to his 
 
            former job; and, a very successful surgery.