Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES BRYANT BROWN,           :
 
                                          :        File No. 950829
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            POLK COUNTY, IOWA,            :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by James 
 
            Bryant Brown, claimant, against Polk County, Iowa, employer, 
 
            self-insured defendant, for benefits as a result of an 
 
            injury which occurred on May 13, 1990.  A hearing was held 
 
            in Des Moines, Iowa on March 17, 1992 and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Jeffrey G. Flagg.  Defendant was represented 
 
            by Thomas A. Evans, Jr.  The record consists of the 
 
            testimony of James Bryant Brown, claimant; Kirk Kuhn, deputy 
 
            sheriff and claimant's witness; John F. Hemple, assistant 
 
            chief jailer and defendant's witness; joint exhibits A 
 
            through X; and employer's exhibits 1 and 2.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury which arose out of and in the course of his 
 
            employment on May 13, 1990; that it was the cause of 
 
            temporary disability; that claimant's entitlement to 
 
            temporary disability from May 13, 1990 through June 26, 
 
            1990, had been paid; that the type of permanent disability, 
 
            if any, was industrial disability; and that the proper rate 
 
            of compensation was $290.87 per week.
 
            
 
                 The issue of whether defendant was entitled to a credit 
 
            for non-occupational group health plan benefits paid to 
 
            claimant prior to hearing as shown on the hearing assignment 
 
            order was withdrawn by defendant at the time of the hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted two issues for determination at 
 
            the time of the hearing.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits and, if so, the extent of benefits to which he is 
 
            entitled.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                         Causal Connection - Entitlement 
 
            
 
                 It is determined that the injury of May 13, 1990, was 
 
            not the cause of permanent disability and that claimant is 
 
            not entitled to permanent disability benefits.
 
            
 
                 Claimant, a deputy sheriff, while working on the patrol 
 
            unit had stopped the sheriff's patrol car with the warning 
 
            lights flashing, and as he attempted to exit the vehicle, 
 
            the patrol car was struck in the rear end by an intoxicated 
 
            driver on May 13, 1990.  Claimant was taken by ambulance to 
 
            the Emergency Department of Mercy Hospital Medical Center.  
 
            The emergency room physician diagnosed cervical and lumbar 
 
            spine strain and a forehead contusion.  James L. Blessman, 
 
            M.D., ordered x-rays.  Routine lumbosacral spine x-rays on 
 
            May 13, 1990, demonstrated normal alignment of the vertebral 
 
            bodies, intervertebral spaces and posterior elements.  The 
 
            paraspinal soft tissues were normal.  Routine cervical spine 
 
            x-rays on May 13, 1990, recorded the same identical results.
 
            
 
                 Claimant reported to Dr. Blessman on May 14, 1990, that 
 
            there was pain in his right knee from hitting the steering 
 
            wheel or dashboard.  An x-ray of the right knee performed on 
 
            May 31, 1990, reported normal bones, joints and soft 
 
            tissues.  No fractures were detected.
 
            
 
                 David T. Berg, D.O., ordered an MRI of the lumbosacral 
 
            spine on May 18, 1990.  Dr. Berg reported on May 31, 1990, 
 
            that the MRI scan revealed a congenital small lumbosacral 
 
            canal, shallow non-compressive protrusion of the L4-5 disc 
 
            as well as the L3-4 disc.  Dr. Berg added that there was 
 
            mild degeneration of the posterior elements of L3, 4, 5 and 
 
            Sl.  Dr. Blessman and Dr. Berg treated claimant with 
 
            physical therapy and medication.
 
            
 
                 Seven physical therapy treatments were administered 
 
            between June 1, 1990 and June 15, 1990.  The physical 
 
            therapist reported on June 15, 1990, that claimant had shown 
 
            steady progress and rated himself at 6 or 7 on a pain scale 
 
            of 0 to 10, with 10 being normal.  The intensity of the pain 
 
            had decreased but claimant still complained of numbness in 
 
            his right lower extremity 50 percent of the time, especially 
 
            when he changes position.  Range of motion of the lumbar 
 
            spine was within near normal limits but claimant complained 
 
            of painful pulling of the right lumbosacral paraspinals into 
 
            the right gluteal region.
 
            
 
                 Dr. Berg also reported on June 15, 1990, that claimant 
 
            continued to have sharp pain in his back and tenderness 
 
            extending down his right leg.  Due to decreased progression 
 
            in the past few days, Dr. Berg referred claimant to William 
 
            R. Boulden, M.D., an orthopedic surgeon, who saw claimant on 
 
            June 26, 1990.
 
            
 
                 Dr. Boulden examined claimant on June 26, 1990, for low 
 
            back pain and some right patellar numbness which 
 
            occasionally radiated down his right shin, but there was no 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            pain radiating in his right leg.  Dr. Boulden reported that 
 
            since claimant did not have any leg pain; and because the 
 
            MRI showed some spinal narrowing of the congenital type with 
 
            mild degeneration of all of the discs posteriorly that 
 
            caused some disc bulging, but did not cause any neural 
 
            impingement of either the central canal type or the 
 
            foramenal type; then he felt that claimant's symptoms were 
 
            mechanical and soft tissue.  Claimant wanted to return to 
 
            work and Dr. Boulden did not see any reason why he could not 
 
            return to work, so he recommended a good exercise program 
 
            and released claimant to return to work effective June 26, 
 
            1990.
 
            
 
                 Dr. Boulden referred claimant to the Manual Therapy 
 
            Center on June 26, 1990, with a diagnosis of degenerative 
 
            disc disease and myofascial strain.  Thomas A. Wheatley, 
 
            LPT, was directed to develop a stabilization program to 
 
            increase claimant's strength and coordination.  On June 27, 
 
            1990, Julius S. Conner, M.D., of the Polk County Health 
 
            Department, released claimant for full duty without 
 
            restrictions except for time off for physical therapy as 
 
            prescribed by Dr. Boulden.
 
            
 
                 On July 23, 1990, LPT Wheatley recorded that claimant 
 
            had no complaints of pain at that time and that he felt his 
 
            condition was much improved.  On July 30, 1990, LPT Wheatley 
 
            recorded that claimant could not remember the exercises but 
 
            that he needed to work on the exercises diligently.  On 
 
            August 6, 1990, Wheatley recorded that claimant finished the 
 
            program, did well and started on maintenance.  After August 
 
            6, 1990, claimant did not receive anymore physical therapy.  
 
            After the June 26, 1990 visit to Dr. Boulden, claimant did 
 
            not see a physician for treatment and did not receive any 
 
            medications for treatment.
 
            
 
                 On September 17, 1990, claimant was evaluated by Thomas 
 
            W. Bower, LPT, for Dr. Boulden.  At that time Bower recorded 
 
            that claimant's primary symptoms were (1) constant lower 
 
            back pain primarily localized over the right side with 
 
            radicular pain occasionally down the right leg and (2) 
 
            intermittent tingling experience in the same extremity.  LPT 
 
            Bower said that the physical examination revealed a full 
 
            range of motion of the lumbar spine.  LPT Bower concluded, 
 
            and he and Dr. Boulden signed the following statement on 
 
            September 17, 1990:  "Primarily basing our opinion on the 
 
            x-ray studies, specifically the MRI, the patient we feel has 
 
            sustained an overall 7% impairment to the body as a whole."  
 
            (Exhibit B, page 1).
 
            
 
                 On February 20, 1991, Dr. Boulden wrote to defendant's 
 
            counsel pointing out that claimant's rating with LPT Bower 
 
            was done based on x-ray diagnosis, adding that since 
 
            claimant improved and returned to work he felt that the 
 
            accident of May 13, 1990, only aggravated claimant's 
 
            preexisting back condition temporarily and did not cause the 
 
            impairment that was found to exist based on the x-ray 
 
            diagnosis.
 
            
 
                 On June 25, 1991, Dr. Boulden wrote to defendant's 
 
            counsel that based on the newest history provided by 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            defendant's counsel that claimant was functioning quite 
 
            well, then he felt that the accident of May 13, 1990, only 
 
            aggravated his problem but did not cause his back problem to 
 
            become more pathological.
 
            
 
                 In a letter to defendant's counsel on April 18, 1991, 
 
            Dr. Boulden stated that in his opinion he felt that the 
 
            accident of May 13, 1990, caused a temporary aggravation of 
 
            a preexisting condition and made it symptomatic.  He awarded 
 
            the seven percent impairment on September 17, 1990, because 
 
            claimant was symptomatic at that time, however, the last 
 
            time he saw claimant, claimant was improving and in his 
 
            opinion had returned back to his pre-injury state, thus 
 
            indicating again that claimant did not currently have a 
 
            seven percent impairment.
 
            
 
                 Marvin H. Dubansky, M.D., examined claimant on July 22, 
 
            1991, at the request of claimant's attorney for an 
 
            evaluation.  Dr. Dubansky found some limited lumbar motion 
 
            to the right and some limited flexion and extension.  He 
 
            determined that claimant had a five percent physical 
 
            impairment as a result of the injury to his lumbosacral 
 
            spine based upon claimant's subjective symptoms of pain.  
 
            Dr. Dubansky said that his five percent rating was taken 
 
            from Table 53 on page 80 of the Guides to the Evaluation of 
 
            Permanent Impairment, Third Edition (Revised) section II 
 
            which states:  "B.  Unoperated, with medically documented 
 
            injury and a minimum of six months of medically documented 
 
            pain and rigidity with or without muscle spasm, associated 
 
            with none-to-minimal degenerative changes on structural 
 
            tests."
 
            
 
                 Dr. Dubansky said he could not use the limited range of 
 
            motion in his evaluation because the sum of hip flexion plus 
 
            hip extension angles was not within 10 percent of the 
 
            straight leg raising angle on the tightest side.  See Table 
 
            60 on page 98 of the Guides to the Evaluation of Permanent 
 
            Impairment, Third Edition (Revised).
 
            
 
                 Dr. Boulden testified by deposition that claimant's 
 
            symptoms were basically mechanical or soft tissue in nature.  
 
            It was his opinion that the accident caused a strain that 
 
            may have aggravated some of the underlying degeneration in 
 
            his back.  Since the MRI did not show anything new, and 
 
            since his own examination found claimant to be normal, he 
 
            released claimant to return to work on June 26, 1990.  Later 
 
            Dr. Boulden and LPT Bower confirmed on September 17, 1990, 
 
            that claimant had a full range of motion.  Claimant never 
 
            contacted Dr. Boulden again after June 26, 1990.  Dr. 
 
            Boulden concluded that he felt the accident was only a tempo
 
            rary aggravating factor which did not cause any of the 
 
            spinal conditions seen on the MRI.  Dr. Boulden said: (1) he 
 
            reviewed claimant's extensive job duties at the jail which 
 
            he performed well and (2) that he noted claimant also 
 
            performs off duty security work at football games, dances 
 
            and other events.  Therefore, he determined that claimant 
 
            had been quite active and demonstrated no limitation in his 
 
            activities.
 
            
 
                 Dr. Boulden concluded that it was his opinion that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            there was no permanent impairment from this injury.  Dr. 
 
            Boulden further testified that he did not use pain alone as 
 
            an indicator of impairment.  Since pain cannot be measured 
 
            it is an unreliable indicator of impairment.
 
            
 
                 Claimant testified that he had no prior injuries or 
 
            health impairments prior to this injury.  The evidence 
 
            further shows that claimant took and passed a pre-employment 
 
            physical examination and had no lumbosacral problems at that 
 
            time.  Claimant's past employments have been primarily 
 
            construction work with other family members.  He started to 
 
            work for employer in 1983 and has been employed as a full 
 
            time deputy sheriff for the past nine years.  He testified 
 
            that he is 5 foot 9 1/2 inches tall and weighs 225 pounds.  
 
            Dr. Dubansky acknowledged that he is overweight, but that he 
 
            is well muscled.  He was not obese but he was heavy.
 
            
 
                 Claimant testified that he was not injured in a 
 
            subsequent motor vehicle accident when the patrol car that 
 
            he was driving rear ended the patrol car in front of him and 
 
            totaled out the other car and did extensive damage to the 
 
            car he was driving.
 
            
 
                 Claimant contended that he was transferred from the 
 
            patrol unit to the jail because of his back injury but 
 
            employer contended that the transfer was caused by the fact 
 
            that he was involved in four motor vehicle accidents after 
 
            he was assigned to the patrol division.  Only one of the 
 
            accidents was determined to be unavoidable.  Two of the 
 
            accidents resulted in the loss of two cars to the sheriff's 
 
            office.  A review board determined that claimant repeatedly 
 
            demonstrated unsafe driving skills and abilities on three 
 
            separate occasions and he was transferred from the patrol 
 
            division to the jail, not as a punitive action, but rather 
 
            based upon the best interests of the Polk County Sheriff's 
 
            Office, the citizens of Polk County, his co-workers and 
 
            himself.  The accidents that he was involved in adversely 
 
            impacted the budget and had endangered co-workers, the 
 
            public and himself.
 
            
 
                 Claimant testified that he has performed all of the 
 
            duties of a jailer and has performed a number of outside 
 
            security jobs.  He still engages in sport activities but his 
 
            abilities have been limited.  He hunts but he has been 
 
            unable to hunt deer with a bow or black powder.  He 
 
            acknowledged that he owned and operated a motorcycle prior 
 
            to this injury.  He can no longer run.  If he stands he has 
 
            to move around or stretch.  He sold a snowmobile since the 
 
            injury because it was not comfortable to ride it.  
 
            
 
                 Claimant acknowledged, one-by-one, that he had 
 
            performed all of the duties assigned to him in his job as a 
 
            jailer, some of which require claimant to be in excellent 
 
            physical condition.  He acknowledged that he was not working 
 
            under any medically imposed physical restrictions.  He 
 
            admitted that he had completed the defensive tactics course 
 
            which involved taking down and holding an assailant.  
 
            Claimant granted that he has worked overtime for the 
 
            sheriff's office and never complained that his back had 
 
            interfered with his duties to any officials on the job.  He 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            acknowledged that he last saw Dr. Berg on June 15, 1990 and 
 
            Dr. Boulden on June 26, 1990 and has not had any medical 
 
            treatment since that time.  His job attendance record is 
 
            outstanding.
 
            
 
                 Kirk Kuhn, a deputy sheriff and claimant's friend, 
 
            testified that claimant cannot walk as far as he used to 
 
            walk and he is required to sit more than he used to do.  He 
 
            used to be able to run down a car but since the injury he 
 
            has not run at all.  Kuhn acknowledged that since claimant 
 
            had been transferred to the jail that he only has had 
 
            limited opportunity to observe him, but he has seen him 
 
            grimace and look as if he were in pain.
 
            
 
                 John F. Hempel, assistant county jailer, testified for 
 
            defendant that he knows claimant well.  He has observed 
 
            claimant perform a number of physical tasks and that 
 
            claimant sits, stands, walks and moves without apparent 
 
            difficulty.  Hempel testified that claimant is an excellent 
 
            employee.  Hempel has seen no difficulty in claimant's 
 
            ability to perform all of his tasks as a deputy sheriff and 
 
            as a Polk County jailer.  He recently completed the 
 
            defensive tactic training which included come along holds, 
 
            take downs, and exerting pain on pressure points.
 
            
 
                 Claimant has completed weapons training and CPR 
 
            training.  Claimant has successfully completed all of the 
 
            training required for all aspects of his job.  He said 
 
            claimant's attendance at work has been excellent.  He said 
 
            claimant has never voiced any need for restricted duty.  
 
            Hempel testified that since the injury on May 13, 1990, 
 
            claimant has been able to do everything well.  Claimant has 
 
            not asked to be excused from any of the physical aspects of 
 
            his training or job.
 
            
 
                 In summary, claimant and Kuhn testified that claimant 
 
            has experienced some limitations on his activities.  Hempel 
 
            countered this testimony and testified that claimant has 
 
            performed all of the physical aspects of his job without any 
 
            difficulty.
 
            
 
                 Dr. Dubansky estimated that claimant had a five percent 
 
            physical impairment due solely to his subjective complaints 
 
            of pain.  Dr. Boulden testified that pain is an unreliable 
 
            indicator of impairment.
 
            
 
                 Dr. Boulden testified that claimant sustained a 
 
            temporary aggravation of his preexisting mildly degenerative 
 
            back condition which has subsided.  Dr. Boulden retracted 
 
            the seven percent impairment rating that he and LPT Bower 
 
            originally assessed for the reason that it was not caused by 
 
            this accident but was rather due to claimant's degenerative 
 
            condition.
 
            
 
                 Dr. Boulden's testimony is preferred over Dr. 
 
            Dubansky's testimony in this case because it is 
 
            substantiated by the other facts in evidence and his 
 
            explanation for his conclusions appear to be more correct 
 
            than Dr. Dubansky's reasons for his conclusion.  Rockwell 
 
            Graphics Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            1985).
 
            
 
                 It is noted that neither Dr. Boulden nor Dr. Dubansky 
 
            specified that their impairment rating was "permanent."  In 
 
            order to be awarded permanent disability benefits, claimant 
 
            needs to establish that his impairment is permanent.  Since 
 
            Dr. Dubansky used the Guides to the Evaluation of Permanent 
 
            Impairment, it may be implied that his rating was intended 
 
            to be a permanent impairment rating.  LPT Bower and Dr. 
 
            Boulden on the other hand did not say they used the AMA 
 
            Guides nor did they say the impairment was permanent.
 
            
 
                 The x-ray of the neck and the x-ray of the back, both 
 
            taken on May 13, 1990, as well as the x-ray of the knee 
 
            taken on May 31, 1990, were normal.
 
            
 
                 The notes of a physical therapist for June 20, 1990, 
 
            show:  "Mr. Brown has not been heard from since doctor's 
 
            appointment 6/15/90.  Considered discharged from P.T."  (Ex. 
 
            D, p. 4)
 
            
 
                 Claimant's neck pain resolved while he was still 
 
            treating with Dr. Berg in June of 1990.
 
            
 
                 LPT Wheatley reported on July 23, 1990, that claimant 
 
            was much improved and he had no complaints of pain at that 
 
            time.  He further reported on August 6, 1990, that claimant 
 
            had finished the program, had done well and had started 
 
            maintenance.
 
            
 
                 Dr. Boulden reported on June 26, 1990, that claimant 
 
            had a full range of motion.
 
            
 
                 Claimant was released by Dr. Boulden on June 26, 1990, 
 
            without restrictions.
 
            
 
                 LPT Bower and Dr. Boulden reported on September 17, 
 
            1990, that Bower's physical exam revealed a full range of 
 
            motion of the lumbar spine.
 
            
 
                 There is no impairment rating for claimant's right knee 
 
            and claimant sought no further treatment for it after he saw 
 
            Dr. Boulden on June 26, 1990.
 
            
 
                 WHEREFORE, it is determined that the injury of May 13, 
 
            1990, was not the cause of permanent disability and claimant 
 
            is not entitled to permanent disability benefits.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, it is determined that claimant did not 
 
            sustain the burden of proof by a preponderance of the 
 
            evidence that the injury of May 13, 1990, was a cause of 
 
            permanent impairment and therefore claimant is not entitled 
 
            to permanent disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 That no further amounts are owed by defendant to 
 
            claimant for permanent disability caused by this injury.
 
            
 
                 That the costs of the action are charged to defendant 
 
            pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendant file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            WALTER R. McMANUS
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Jeffrey G. Flagg
 
            Attorney at Law
 
            2716 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Mary W. Vauroch
 
            Assistant Polk County Attorney
 
            Room 372
 
            Polk County Office Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Thomas A. Evans, Jr.
 
            Attorney at Law
 
            1742 NW 102 Street
 
            Clive, Iowa  50325
 
            
 
                 
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed April 30, 1992
 
            WALTER R. McMANUS
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES BRYANT BROWN,           :
 
                                          :        File No. 950829
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            POLK COUNTY, IOWA,            :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant was not entitled to any permanent disability.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            KEVIN HARKEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950976
 
            BROWNING-FERRIS INDUSTRIES,   :
 
                                          :     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 
 
            claimant, Kevin Harkey, against his former (self-insured) 
 
            employer, Browning-Ferris Industries.  This matter came on 
 
            for a hearing before the undersigned deputy commissioner on 
 
            May 19, 1994.
 
            
 
                 The record in the case consists of testimony from the 
 
            claimant and Steven Dillinger; claimant's exhibits 1 through 
 
            12; and, defendant's exhibit 13.
 
            
 
                                      ISSUE
 
            
 
                 The parties submitted the following issue for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to permanent partial 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Kevin Harkey, was 37 years of age at the time 
 
            of the hearing.  Currently, he lives in Ankeny, Iowa, and is 
 
            married with three children.  All of this children are under 
 
            the age of 18.
 
            
 
                 Claimant completed the ninth grade, and dropped out of 
 
            high school during the tenth grade.  He has not obtain his 
 
            general equivalency diploma and has obtained no other formal 
 
            education.
 
            
 
                 Claimant joined the United States Navy soon after he 
 
            dropped out of school.  He served three years, participated 
 
            in basic training, and performed maintenance duties.
 
            
 
                 Claimant's other work experience includes pumping gas 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            at a truck stop, working for Gate City Steel, and working 
 
            for a company called Aluminum Siding.
 
            
 
                 In September of 1985 or 1986, claimant began working 
 
            for defendant employer, Browning Ferris Industries (BFI).  
 
            Initially, he worked out of the Dallas, Texas office and 
 
            drove a roll off container truck.  Claimant was required to 
 
            obtain his chauffeur's license to perform the job.  He 
 
            received on-the-job training for one week, and learned how 
 
            to tarp loads, open and close the doors on the trash truck, 
 
            level loads and work with the cables on the truck.  
 
            Eventually, claimant left Dallas, but was rehired in the Des 
 
            Moines office.  He performed the same job as he had in 
 
            Dallas.  In addition to his gross weekly earnings of 
 
            $725.60, claimant also received company benefits including 
 
            medical insurance, driving safety bonuses, access to a 401K 
 
            program, and paid vacations.
 
            
 
                 In April of 1990, claimant was sent to Des Moines Seed 
 
            and Nursery to pick up a load of trash.  As claimant was 
 
            attempting to load a railroad tie, he fell backwards and the 
 
            tie fell on top of him.  Claimant stated that he felt pain 
 
            immediately in the front and back of his left side at the 
 
            belt line.  He continued to work, hauled the load to the 
 
            landfill, returned to the office and told Steve Dillinger 
 
            about the incident.  He was told to go to the company 
 
            physician, who treated claimant on April 26, 1990.  Dr. 
 
            Foley took claimant off of work for several days, and 
 
            referred him to William R. Boulden, M.D.  (Claimant's 
 
            Exhibit 3)
 
            
 
                 Dr. Boulden first treated claimant on May 1, 1990.  
 
            Complaints at that time included left side pain shooting up 
 
            into the back and shoulder area.  Activities which increased 
 
            the pain included bending, repetitive twisting, coughing and 
 
            sneezing.  An examination revealed decreased right and left 
 
            lateral bending motion, and increased low back pain with 
 
            straight leg raising tests.  Review of the lumbar spine x-
 
            rays showed significant degenerative disc disease at the L5-
 
            S1 level.  Dr. Boulden believed claimant had aggravated the 
 
            degenerative disc disease in the lower spine, but scheduled 
 
            a  CT scan to rule out neural canal sizing and foramen at 
 
            the L5-L1 level.  Claimant was to remain off of work for the 
 
            next three weeks.  (Cl. Ex. 5, p. 5)
 
            
 
                 A follow-up visit on May 22, coupled with the results 
 
            of the CT scan, led to Dr. Boulden's diagnosis that claimant 
 
            was experiencing mechanical back pain, and it was 
 
            recommended that claimant undergo a work conditioning 
 
            program.  Dr. Boulden did not recommend surgery. (Cl. Ex. 2, 
 
            p. 4)
 
            
 
                 Claimant underwent the work hardening program, 
 
            administered by Thomas Bower, a licensed physical therapist.  
 
            Mr. Bower's notes indicate that initially, claimant had 
 
            limited range of motion in his low back.  On a rising scale 
 
            from 0 to 10, claimant indicated that the lowest pain he had 
 
            experienced in the past 30 days was a 4, and the highest was 
 
            a 10, which occurred shortly after the accident.  After the 
 
            two and one-half week work hardening program, it was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            determined that claimant was ready to return to work.  Mr. 
 
            Bower and Dr. Boulden offered the following information:
 
            
 
                    Kevin has done an exceptional job over the last 
 
                 2 1/2 weeks in our program and has increased all 
 
                 functional capacities substantially.  His floor to 
 
                 waist lift has increased from 33 pounds to 112 
 
                 pounds, his knee to chest has increased from 37 
 
                 pounds to 50 pounds, as has his overhead.  His 
 
                 carry has increased from 42 pounds to 72 pounds, 
 
                 and probably the most substantial improvement has 
 
                 been his sustained push and pull force which has 
 
                 increased from 130 pounds to 455 pounds.  
 
                 Certainly, I don't think we can ask anymore of 
 
                 this individual and I do not foresee where any 
 
                 further work hardening would be of benefit.  As 
 
                 far as functional capacities are concerned, we 
 
                 feel that this gentleman is ready to return back 
 
                 to the work situation.  We have informed Dr. 
 
                 Boulden of such.  We do feel that Mr. Harkey may 
 
                 have some problems in driving the truck, 
 
                 particularly over rough ground which he must do in 
 
                 order to go into the land fill area.  These we do 
 
                 not feel will be substantial limiting factors, 
 
                 however.
 
            
 
                    Based on the degenerative disc disease at 
 
                 L5/S1, we feel the patient has sustained a 7% 
 
                 impairment to the body as a whole.  The patient 
 
                 has full range of motion, therefore, this is not a 
 
                 consideration in the rating.
 
            
 
            (Cl. Ex. 5, p. 10)
 
            
 
                 In December of 1993, Dr. Boulden offered the following 
 
            additional information:
 
            
 
                    I believe that the only thing that I may have 
 
                 told Mr. Harkey at the time that we last saw him 
 
                 was the fact that on a long term basis driving a 
 
                 truck wouldn't be conducive to good back health.  
 
                 I didn't state at that point in time that he 
 
                 couldn't return back to his work and that he 
 
                 needed to continue to use his back properly, 
 
                 maintain his stabilization exercise program, and 
 
                 continue to lose weight.  Therefore, I didn't give 
 
                 any specific recommendations at that time to 
 
                 discontinue driving a truck.  I told him that on a 
 
                 long term basis it would be better to find a 
 
                 different type of employment.  I wouldn't relate 
 
                 this recommendation to that specific work injury 
 
                 of April 25, 1990.
 
            
 
            (Cl. Ex. 2, p. 2)
 
            
 
                 Claimant asserted at the hearing that Dr. Boulden had 
 
            told him not to drive a truck or else he would not be 
 
            walking.  However, claimant returned to his position as a 
 
            truck driver, a position he held until March of 1992.  
 
            Apparently, the company was downsizing, moved claimant to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the parts room, and then moved him to a dispatch job.  
 
            Claimant stated that he received a reduction in pay equaling 
 
            $10,000 to $12,000 per year.  As a dispatcher, claimant 
 
            received $19,000 per year, with no opportunity to earn 
 
            driving safety bonuses.  He continued to receive all of the 
 
            company benefits.  Claimant worked in this position for more 
 
            than one year, and then was laid off in March of 1993.  He 
 
            received unemployment benefits.
 
            
 
                 In the ensuing months, claimant looked for work, 
 
            attempted to obtain his general equivalency diploma and 
 
            stayed home with his youngest child.
 
            
 
                 In May of 1993, his wife purchased a company which 
 
            provided services to clean out grease traps from various 
 
            establishments throughout the greater Des Moines and Ankeny 
 
            areas.  Currently, claimant helps to run the business.  He 
 
            solicits customers, as well as services customers.  He works 
 
            approximately four hours per day, five days a week, and 
 
            stated that because of his lower back, he cannot work a full 
 
            eight hour day.  Claimant is paid $1,000 per month for 
 
            performing duties for the company.  He does not have health 
 
            insurance, there is no 401K plan, and he has no paid 
 
            vacations.
 
            
 
                 Presently, claimant participates in activities such as 
 
            hiking, sports, fishing and hunting.  He stated that he 
 
            takes aspirins, but is not scheduled for additional physical 
 
            therapy or any doctor appointments.
 
            
 
                 On cross-examination, claimant admitted that he 
 
            continues to take care of his children while his wife works 
 
            full-time at Target.  Claimant also admitted that in 1993, 
 
            he "volunteered" his services to his wife for the business 
 
            because he was receiving unemployment benefits and would 
 
            have been unable to receive the benefits if he had been on 
 
            the company's payroll.
 
            
 
                 Steven Dillinger, operations and safety manager for 
 
            BFI, also testified at the hearing.  He confirmed that when 
 
            claimant returned to work in June of 1990, claimant held the 
 
            same job as prior to the injury.  He worked the same amount 
 
            of hours, received the same or increased rate of pay, 
 
            performed the same type of duties, and drove the same type 
 
            of truck as prior to the accident.  Mr. Dillinger stated 
 
            that claimant was under no work restrictions which 
 
            necessitated accommodations in his job function, and 
 
            explained that claimant stopped driving a truck in order to 
 
            work in the parts room.  Apparently, the company was 
 
            experiencing an inventory problem and called upon claimant 
 
            to help resolve the problem.  The job was not created for 
 
            claimant as claimant testified.
 
            
 
                 Mr. Dillinger also stated that he was not aware 
 
            claimant had complained about his back, had lost no time 
 
            from work since his return to work, had not requested to see 
 
            a physician, and had not received any medical treatments 
 
            since June of 1990.
 
            
 
                 Mr. Dillinger stated that claimant worked in the parts 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            room for two weeks to one month, and due to budget 
 
            constraints the job was eliminated.  Claimant was not 
 
            offered a truck position at that time because of the budget 
 
            constraints, but was offered a job in the dispatch area.  
 
            Mr. Dillinger confirmed that claimant worked as a dispatcher 
 
            for approximately one year.
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to permanent partial disability benefits.  As 
 
            claimant has sustained an injury to his back, an evaluation 
 
            of his industrial disability is warranted.
 
            
 
                 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).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            - 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 37 years of 
 
            age.  He is not a high school graduate, and has not obtained 
 
            his general equivalency diploma.  Claimant has no other 
 
            formal education, although he has received some on-the-job 
 
            training and holds a chauffeur's license.
 
            
 
                 Claimant's work experience is concentrated in manual 
 
            labor-types of jobs.  Claimant had a steady work history 
 
            with the defendant, and apparently performed his job in a 
 
            satisfactory manner.  Claimant worked an average of 58 hours 
 
            per week, and earned gross weekly earnings of $725.60.
 
            
 
                 After his injury, claimant was under active medical 
 
            treatment for approximately one month.  He was able to 
 
            return to his former job, and performed his job duties 
 
            satisfactorily for the next 18 months.  Additionally, 
 
            claimant was given other job opportunities with the company, 
 
            but was laid off in March of 1993.  Claimant offered that 
 
            because he had enrolled at DMAAC, his job search was waived 
 
            by job service yet he continued to receive unemployment 
 
            benefits.  As a result, claimant did not pursue many other 
 
            job opportunities.
 
            
 
                 After the injury, claimant worked as a truck driver for 
 
            18 months.  During this time, he did not receive any medical 
 
            treatment, nor did he complain to his employer that the 
 
            duties were aggravating his back condition.  Subsequently, 
 
            claimant was reassigned to the parts department and then 
 
            transferred to the dispatcher area.  Claimant worked as a 
 
            dispatcher for one year, and was then laid off.
 
            
 
                 The evidence supports a finding that claimant, himself, 
 
            has limited his actual work activities associated with the 
 
            grease trap cleaning business.  While he attempted to argue 
 
            that Dr. Boulden restricted his truck driving activities, 
 
            the undersigned is unable to draw the same conclusion after 
 
            a thorough review of Dr. Boulden's (and Mr. Bower's) 
 
            treatment and subsequent opinions.    In fact, both health 
 
            care providers released claimant to return to his job with 
 
            BFI.  Although it was recognized that claimant "may have 
 
            some problems in driving the truck," it was not believed 
 
            that these "problems" would "be substantial limiting 
 
            factors."  Likewise, Dr. Boulden specifically stated that 
 
            any limitation in claimant's long-term employment as a truck 
 
            driver was not related to the work accident.  As a result, 
 
            it is found that although claimant did sustain an injury 
 
            which arose out of and in the course of his employment, he 
 
            did not sustain any permanent disability from the injury, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            and has therefore lost no earning capacity.
 
            
 
                 Therefore, claimant takes nothing from these 
 
            proceedings.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That each party shall pay their own respective costs 
 
            associated with the claim.
 
            
 
                 Signed and filed this ____ day of June, 1994.
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Toby Swanson
 
            Attorney at Law
 
            1922 Ingersoll
 
            Des Moines IA 50309
 
            
 
            Mr Michael R Hoffman
 
            Attorney at Law
 
            3708 75th St
 
            Urbandale IA 50322-3002
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed June 13, 1994
 
                                                Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            KEVIN HARKEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 950976
 
            BROWNING-FERRIS INDUSTRIES,   :
 
                                          :     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 failed to prove by a preponderance of the evidence 
 
            that he sustained any loss of earning capacity.
 
            No benefits were awarded.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MELVINA TURNER, Surviving,    :
 
            Spouse of Willie E. Turner,   :
 
            and Dependant Children of     :
 
            Willie E. Turner,             :
 
                                          :     File No. 951058
 
                 Claimant,                :
 
                                          :   D E C I S I O N  R E:
 
            vs.                           :
 
                                          :   D E A T H  B E N E F I T
 
            VAN WYK, INC.,                :
 
                                          :       P A Y M E N T
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
              AMERICA,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding brought by defendants, Van Wyk, 
 
            Inc., and its insurance company, the Insurance Company of 
 
            North America, regarding Melvina Turner, surviving spouse of 
 
            Willie E. Turner, deceased, and dependent children of Willie 
 
            E. Turner regarding who is entitled to benefits on account 
 
            of the death of Willie E. Turner, which death defendants 
 
            concede arose out of and in the course of decedent's 
 
            employment.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner at Des Moines, 
 
            Iowa on November 30, 1992.  A first report of injury has 
 
            been filed.  Defendants appeared through their attorney, 
 
            John D. Ackerman.  Named claimants, that is, Melvina Turner 
 
            and dependent children of Willie E. Turner, deceased, did 
 
            not appear either personally or through an attorney or 
 
            attorneys.  The record reflects that service was made upon 
 
            Melvina Turner and Stephanie Turner.  Other stated natural 
 
            children of Willie E. Turner would all have been under age 
 
            18 at the time of the filing of the original notice and 
 
            petition on August 28, 1991.  The record consists of 
 
            defendant's exhibits 1 through 12.
 
            
 
                                      ISSUES
 
            
 
                 Defendants concede that claimant did receive an injury 
 
            which arose out of and in the course of his employment and 
 
            which resulted in his death on May 31, 1990.  Defendants 
 
            further concede that that injury results in entitlement to 
 
            death benefits for any dependents who survive decedent.  
 
            Defendants state the issues for resolution as:
 
            
 
                 1) Who are the dependents of Willie E. Turner who are 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            entitled to benefits;
 
            
 
                 2) Should the workers' compensation benefits be held in 
 
            escrow until such time as the dependents of Willie E. Turner 
 
            who are entitled to benefits are identified; and
 
            
 
                 3) Should the workers' compensation benefits be held in 
 
            escrow until such time as there is an apportionment of 
 
            benefits between the surviving spouse of Willie E. Turner 
 
            and his dependent children.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy having considered the evidence finds:
 
            
 
                 Decedent, Willie E. Turner, married Melvina Davis on 
 
            January 30, 1972.  The couple remained married as of 
 
            decedent's date of death, May 31, 1990.  Melvina Davis 
 
            Turner is the surviving spouse of decedent.  Decedent and 
 
            Melvina Davis Turner had six natural born children, namely:  
 
            Stephanie Michelle, born August 5, 1972; Willie Ann, born 
 
            September 11, 1973; Willie Earl, Jr. born March 6, 1977; 
 
            Reginald R., born September 27, 1989; Roderick M., born 
 
            September 13, 1984; and James Earl Gray, born December 31, 
 
            1986.  Stephanie is now 20 years old.  Willie Ann is now 19 
 
            years old.  Willie Earl, Reginald, Roderick and James are 
 
            15, 12, 8 and 6 years old respectively.  Stephanie was 
 
            registered as a 12th grader during the 1991-1992 school 
 
            year.  The record does not demonstrate that Stephanie is now 
 
            in school.  Whether Stephanie is now actually dependent 
 
            cannot be determined.  Willie Ann was registered as a 
 
            student at Grambling State University as of August 19, 1991.  
 
            The record does not contain any evidence of Willie Ann's 
 
            student status at this time.  Whether Willie Ann is now an 
 
            actual dependent cannot be determined.  Willie Earl, 
 
            Reginald, Roderick, and James are all under the age of 18.  
 
            Willie Earl, Reginald, Roderick, James, and their mother, 
 
            Melvina, are all conclusively presumed dependents of 
 
            decedent.  See section 85.42.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Section 85.31(1) provides in relevant part:  
 
            
 
                 When death results from the injury, the employer 
 
                 shall pay the dependents who were wholly dependent 
 
                 on the earnings of the employee for support at the 
 
                 time of the injury, during their lifetime, 
 
                 compensation upon the basis of eighty percent per 
 
                 week of the employee's average weekly spendable 
 
                 earnings, commencing from the date of death as 
 
                 follows:
 
            
 
                 a.  To the surviving spouse for life or until 
 
                 remarriage, provided that upon remarriage two 
 
                 years' benefits shall be paid to the surviving 
 
                 spouse in a lump sum, if there are no children 
 
                 entitled to benefits.
 
            
 
                 b.  To any child of the deceased until the child 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 shall reach the age of eighteen, provided that a 
 
                 child beyond eighteen years of age shall receive 
 
                 benefits to the age of twenty-five years of age 
 
                 and is enrolled as a full-time student in any 
 
                 accredited educational institution shall be a 
 
                 prima facie showing of actual dependency.
 
            
 
                 Section 85.42 provides in relevant part:  
 
            
 
                 The following shall be conclusively presumed to be 
 
                 wholly dependent upon the deceased employee:
 
            
 
                 1.  The surviving spouse, ...:
 
            
 
                 2.  A child or children under eighteen years of 
 
                 age, and over said age if physically or mentally 
 
                 incapacitated from earning, whether actually 
 
                 dependent for support or not upon the parent at 
 
                 the time of the parent's death.  ... 
 
            
 
                 Section 85.43 provides in relevant part:  
 
            
 
                 If the deceased employee leaves a surviving spouse 
 
                 qualified under the provisions of section 85.42, 
 
                 the full compensation shall be paid to the 
 
                 surviving spouse, as provided in section 85.31; 
 
                 provided that where a deceased employee leave a 
 
                 surviving spouse and a dependent child or children 
 
                 the industrial commissioner may make an order of 
 
                 record for an equitable apportionment of the 
 
                 compensation payments.
 
            
 
                 If the deceased leaves dependent child or children 
 
                 who was or were such at the time of the injury, 
 
                 and the surviving spouse remarries, then and in 
 
                 such case, the payments shall be paid to the 
 
                 proper compensation trustee for the use and 
 
                 benefit of such dependent child or children for 
 
                 the period provided in section 85.31.
 
            
 
                 Section 85.26(4) provides:  
 
            
 
                 No claim or proceedings for benefits shall be 
 
                 maintained by any person other than the injured 
 
                 employee, or the employee's dependent or legal 
 
                 representative if entitled to benefits.
 
            
 
                 Defendants first seek to know who are the dependents of 
 
            Willie E. Turner who are entitled to benefits.  The record 
 
            made establishes only that Melvina Turner as surviving 
 
            spouse and her children under the age of 18, that is Willie 
 
            Earl, Reginald, Roderick and James are entitled to benefits 
 
            as conclusively presumed dependents of decedent.  Stephanie 
 
            and Willie Ann are both over the age of 18.  Any entitlement 
 
            to benefits on their part requires a showing of actual 
 
            dependency.  The record does not disclose that either 
 
            Stephanie or Willie Ann are actual dependents of decedent at 
 
            this time either by way of being full-time students at an 
 
            educational institution or otherwise.  Neither Stephanie nor 
 
            Willie Ann has appeared to assert rights in this matter; 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            neither Stephanie nor Willie Ann has filed a claim for 
 
            benefits.  Given that neither has filed any claim for 
 
            benefits or otherwise established actual dependency, a 
 
            finding of actual dependency is not warranted.  
 
            
 
                 Defendants seek to be permitted to hold in escrow 
 
            workers' compensation benefits payable on account of Willie 
 
            E. Turner's demise until such time as dependents of decedent 
 
            entitled to benefits are identified or until such time as 
 
            benefits are apportioned between the surviving spouse and 
 
            decedent's dependent children.  The record does not 
 
            establish a valid interest of defendants that would be 
 
            served by holding benefits in escrow which interest is not 
 
            overridden by the interest of the surviving spouse and the 
 
            conclusively presumed dependent children in receiving timely 
 
            payment of benefits.  As noted, neither Stephanie nor Willie 
 
            Ann are making any claim for benefits.  Given that, 
 
            defendants can in good faith continue to make payments to 
 
            the conclusively presumed dependents and surviving spouse 
 
            until such time as decedent's nonminor children actually 
 
            file a claim.
 
            
 
                 Additionally, escrowing until an apportionment of 
 
            benefits  occurs is also inappropriate.  The undersigned has 
 
            found no case on point in which benefits were apportioned 
 
            between the surviving spouse, nonremarried, and the natural 
 
            children of the surviving spouse and decedent.  An order of 
 
            equitable apportionment is a discretionary act of the 
 
            commissioner.  It generally requires that some compelling 
 
            interest of dependents be served.  "The most common 
 
            situation requiring equitable apportionment is where the 
 
            decedent leaves a surviving spouse and also children from a 
 
            previous marriage or marriages."  Lawyer & Higgs, Iowa 
 
            Workers' Compensation-Law and Practice (2nd) (Ed.), section 
 
            14-9 (footnote omitted).  That is not the case here.  
 
            Melvina Davis Turner is the natural mother of the natural 
 
            children of decedent, Willie E. Turner.  It is presumed that 
 
            natural parents behave naturally.  Natural parents are 
 
            considered the natural protectors of their minor issue.  
 
            Nothing in this record establishes that Melvina Turner is 
 
            not both willing and able to act in the best interest of her 
 
            natural minor children.  Benefits should continue to be paid 
 
            to Melvina as surviving spouse.  
 
            
 
                 This directive is consistent with the workers' 
 
            compensation law.  Section 85.43, unnumbered paragraph three 
 
            states that upon remarriage of a surviving spouse where a 
 
            dependent child or dependent children also survive that 
 
            payments shall be paid to the proper compensation trustee 
 
            for the use and benefit of such child of children.  No like 
 
            provision governs payment where the surviving spouse remains 
 
            unmarried.  The absence of a similar provision in that 
 
            instance suggests a legislative intent that benefits, 
 
            nonapportioned, be paid to the surviving spouse with the 
 
            presumption that the spouse would in the normal course use 
 
            such benefits in a manner that meets the interest of her and 
 
            decedent's dependent natural born child or children.  
 
            Escrowing of the workers' compensation benefits to be paid 
 
            on account of the death of Willie E. Turner is inappropriate 
 
            at this time.  Workers' compensation benefits payable on 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            account of the death of Willie E. Turner should continue to 
 
            be paid to the surviving spouse, Melvina Davis Turner.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants continue to pay any workers' compensation 
 
            benefits due on account of the death arising out of and in 
 
            the course of his employment of Willie E. Turner to his 
 
            unremarried surviving spouse, Melvina Turner.
 
            
 
                 Defendants pay costs of this action.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street, Suite 200
 
            P.O. Box 3086
 
            Sioux City, IA  51102
 
            
 
            CC to:
 
            
 
            Melvina Turner
 
            703 Fourth St.
 
            Lake Providence, LA  71254
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1203; 1901; 1902
 
                                           Filed December 7, 1992
 
                                           Helenjean M. Walleser
 
            Before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MELVINA TURNER, Surviving,    :
 
            Spouse of Willie E. Turner,   :
 
            and Dependant Children of     :
 
            Willie E. Turner,             :
 
                                          :      File No.  951058
 
                 Claimant,                :
 
                                          :  D E C I S I O N  R E:
 
            vs.                           :
 
                                          :   D E A T H  B E N E F I T
 
            VAN WYK, INC.,                :
 
                                          :      P A Y M E N T
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
              AMERICA,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1203; 1901; 1902
 
            Held that it was inappropriate for defendants to escrow 
 
            workers' compensation benefits payable on account of 
 
            decedent's death until a determination of actual dependents 
 
            of decedent was made or until an order of equitable 
 
            apportionment of benefits was made.  The surviving spouse 
 
            was the natural mother of all known issue of decedent.  Six 
 
            children survived.  Two children are over age 18 and have 
 
            made no claim for benefits or otherwise demonstrated a 
 
            current actual dependency.  The four minor children are 
 
            natural children of the surviving spouse.  The natural 
 
            parent is presumed to be the natural protector of the 
 
            parent's natural children.  No evidence presented 
 
            demonstrated any compelling reason for not presuming that 
 
            the surviving spouse as natural parent of the minor 
 
            dependent children would not use the workers' compensation 
 
            benefits in a manner consistent with the minor dependent 
 
            children's interest.  
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            
 
                                          
 
            GEORGE ANDERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 951145
 
            GRACE CRYOVAC DIVISION,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceedings in arbitration brought by 
 
            claimant, George Anderson, against Grace Cryovac Division 
 
            and CNA Insurance Companies. 
 
            
 
                 A hearing was held before the undersigned deputy 
 
            industrial commissioner on March 21, 1994, at Cedar Rapids, 
 
            Iowa.  The evidence consists of testimony from the claimant, 
 
            Jeanne Juehring and John Elliott; joint exhibits 1-7; and, 
 
            defendants' exhibits A-D.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained a permanent disability; 
 
            and,
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            disability benefits. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 At the time of the hearing, claimant was 45 years old.  
 
            He is married and has two children, one of whom is a 
 
            dependent. 
 
            
 
                 Claimant graduated from Cedar Rapids Jefferson high 
 
            school in 1967.  He has not pursued any further education. 
 
            
 
                 Claimant's work history can be found at joint exhibit 
 
            1, pages 2-4.  During the past 25 years, he has worked in 
 
            retail sales for several furniture stores and shoe stores.  
 
            His job duties included waiting on customers, stocking 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shelves, setting up displays, moving, loading and unloading 
 
            merchandise.  Claimant also worked as an encyclopedia 
 
            salesman, and for several years worked as an assistant 
 
            manager and manager of a Pizza Hut.  Additionally, claimant 
 
            has worked as a general material handler for the Sheller 
 
            Globe company, and on an assembly line for National Oats 
 
            company.  His various jobs have required claimant to lift up 
 
            to 75 pounds, push up to 300 pounds, and perform work at or 
 
            above shoulder level.  
 
            
 
                 In June of 1981, claimant began working for the 
 
            defendant employer, Grace Cryovac Division.   His initial 
 
            job, which he held for three months, was as a general 
 
            materials handler.  He was required to supply materials to 
 
            the various machines, fold and fill cartons, and move 
 
            finished products to various areas in the plant.  He was 
 
            required to lift from two pounds to 65 pounds.  (It should 
 
            be noted that the employer has restricted its workers to no 
 
            lifting of greater than 65 pounds without assistance.)   
 
            Claimant was also required to use a vacuum with a long hose 
 
            to clean the machines.  This involved performing a great 
 
            deal of overhead work, as well as stooping, bending and 
 
            lifting. 
 
            
 
                 Next, claimant worked in the air mold department as a 
 
            machine operator.  He was required to pull out hot materials 
 
            from a machine on a constant basis.  He worked at this job 
 
            for only two weeks, and was then laid off from the company 
 
            for one and one-half years. 
 
            
 
                 When claimant returned to work in August of 1983, he 
 
            worked as a 6 color press operator for four to six weeks.  
 
            He was required to load the machine with rolls of film 
 
            (plastic) weighing 65 to 200 pounds.  Claimant was provided 
 
            with a hydraulic hoist to help load the film.  He also 
 
            climbed the machine to load it with ink, or to make general 
 
            adjustments. 
 
            
 
                 During the next several months, claimant worked as an 
 
            end seal operator, press helper and return good reinspector.  
 
            The jobs required essentially the same physical requirements 
 
            as set out above. 
 
            
 
                 After another layoff, which lasted approximately one 
 
            year, claimant returned to the company in August of 1984 as 
 
            an end seal bag machine operator, the same job he held at 
 
            the time of the injury, and the same job he holds presently.  
 
            This machine processes film into bags to be sold to various 
 
            customers.  (It was explained that the company makes plastic 
 
            bags for all types of food products, such as turkeys.)  
 
            
 
                 Physically, claimant was required to maneuver, with the 
 
            aid of a hoist, two rolls of film to be loaded onto the 
 
            machine.  He controlled the speed of the machine, and made 
 
            the necessary adjustments to run the specifications of the 
 
            bags the machine produced.  Once the bags were produced, 
 
            claimant placed the bags into the cartons, folded the top 
 
            and bottom of the carton, filled out a "tray ticket," placed 
 
            a label on the carton, taped the carton and put the box on a 
 
            pallet.  He described his duties as requiring work at and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            above shoulder level and at knee level.  He had to change 
 
            the rolls of film every 30 to 45 minutes.  The finished 
 
            goods weighed anywhere from 5 to 65 pounds.  Joint exhibit 
 
            2, pages 19-23 provides a job description. 
 
            
 
                 In 1984, claimant earned $8.31 per hour for his work on 
 
            the end seal bag machine; in 1990, he earned $11.77 per hour 
 
            plus incentive pay (based on efficiency and production), 
 
            totalling $65 to $100 per week.  Currently, he earns $16.06 
 
            per hour.  As of 1994, the company no longer rewards its 
 
            employees through incentive pay.
 
            
 
                 Claimant sustained a work-related injury on May 30, 
 
            1990.  During his shift, he was using a crank to correct the 
 
            profile of the rollers, and he felt his neck, upper back and 
 
            right shoulder tighten.  He reported the injury to the front 
 
            line supervisor, and was sent by taxi cab to the emergency 
 
            room at St. Lukes Hospital.  He also reported to John L. 
 
            Banks, the company doctor. 
 
            
 
                 Dr. Banks recommended physical therapy directed at the 
 
            neck and upper back.  Eventually, claimant was referred to 
 
            Hugh MacMenamim, M.D., who diagnosed an impingement syndrome 
 
            of the right shoulder.  He recommended surgery, which was 
 
            performed in November of 1990.  Due to continued numbness 
 
            and pain radiating down claimant's right arm and hand, he 
 
            was referred to Dr. Risk, M.D., a neurosurgeon.  
 
            
 
                 In November of 1991, because of continued pain, 
 
            claimant was referred to the University of Iowa Spine 
 
            Rehabilitation Clinic for a two week program to help him 
 
            address and cope with his chronic pain.  He stated that he 
 
            extracted a "great deal of benefit" from the program, and 
 
            credited it with "turning [his] life around."  
 
            
 
                 During his recovery, claimant was returned to work in a 
 
            light duty capacity.  Since February of 1991, claimant 
 
            worked periodically on the end seal machine, but returned to 
 
            this job once he completed the program at the University of 
 
            Iowa. 
 
            
 
                 Initially, he was released to work only eight hours per 
 
            day on the machine, but after one month, returned to work 
 
            with unrestricted capacities.  
 
            
 
                 Claimant stated that although at times 12 hour work 
 
            days are available, he wishes only to work 8 hours in any 
 
            given day.  Claimant is not adverse to working overtime on 
 
            the weekends, but has thus far declined any 12 hour days.  
 
            Claimant's seniority status on his shift is such that he is 
 
            one of the first workers asked if voluntary overtime is 
 
            offered, and one of the last workers asked if mandatory 
 
            overtime arises.   
 
            
 
                 Claimant's efficiency standards are found at 
 
            defendants' exhibit B.  While he is in the top third when 
 
            his departments' efficiency standards are compared, his 
 
            latest job evaluation, performed two weeks prior to the 
 
            hearing, was described as "good" by his direct supervisor, 
 
            John Elliott.  Mr. Elliott also explained that the machine 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            on which claimant is working demands the highest hourly wage 
 
            in the plant.  Cessation of incentive pay was not based on 
 
            claimant's injury. 
 
            
 
                 Claimant complained that his current job duties 
 
            aggravate pain and other symptoms in his neck, right 
 
            shoulder and upper back.  Yet, much to claimant's credit, he 
 
            has not missed any time from work due to his physical 
 
            condition associated with the job injury.  This was 
 
            confirmed by Jeanne Juehring, human resources representative 
 
            for the defendant employer. 
 
            
 
                 In July of 1991, Dr. MacMenamim rated claimant's 
 
            impairment as "14% of the upper extremity due to the right 
 
            shoulder."  (Joint exhibit 3)
 
            
 
                 In January of 1992, Dr. Found and Mr. Wernimont at the 
 
            University of Iowa stated that claimant had sustained a 3 
 
            percent impairment to the body as a whole.  (Jt. Ex. 5)
 
            
 
                 In April of 1992, claimant visited Richard Neiman, 
 
            M.D., for an independent medical evaluation.  Based on what 
 
            appears to be a fairly thorough review of claimant's past 
 
            medical records and an examination, he believed that due to 
 
            residual impaired range of motion of the neck, claimant had 
 
            sustained a 9 percent impairment to the body as a whole.  
 
            (Jt. Ex. 4)
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained a permanent disability. 
 
            
 
                 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).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's treating physician is Dr. MacMenamin.  He 
 
            oversaw and administered most of the medical treatment 
 
            received by claimant.  Dr. MacMenamin is thoroughly familiar 
 
            with claimant's condition, and he is under the impression 
 
            that, due to the injury and subsequent treatment,  claimant 
 
            sustained a 14 permanent impairment to the upper extremity.  
 
            This would equate to a an 8 percent impairment to the body 
 
            as a whole. 
 
            
 
                 The physicians at the University of Iowa estimated that 
 
            claimant had sustained a 3 percent impairment to the body as 
 
            a whole due to the worked related injury on May 30, 1990.  
 
            
 
                 THere can be no doubt that claimant has sustained a 
 
            permanent disability.  Nothing in the record indicates that 
 
            claimant has not suffered a permanent disability due to the 
 
            work-related injury.  Every physician involved in the case 
 
            has determined that an impairment exists.  As a result, it 
 
            is concluded that claimant has sustained a permanent 
 
            disability. 
 
            
 
                 As claimant's impairments are to the body as a whole, 
 
            an evaluation of his industrial disability is mandated. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Claimant's current age is 45.  He is at the peak of his 
 
            earning years.  
 
            
 
                 Given claimant's background and formal education, he 
 
            has a very well-paying job which he is successfully 
 
            performing on a consistent basis.  Again, much to claimant's 
 
            credit, he has been able to maintain a steady level of 
 
            performance at his job.  While his efficiency level is not 
 
            the best in his department, neither is it the worse.  As 
 
            equally as important is the employer's attitude about 
 
            returning claimant to work.  While the evidence suggested 
 
            some animosity between claimant and management, as well as 
 
            some juvenile antics within the plant (such as a caricature 
 
            of claimant complaining about neck and back pain), the 
 
            employer has allowed claimant to return to a well-paying 
 
            job.  
 
            
 
                 Claimant's recovery was enhanced by a program at the 
 
            University of Iowa. 
 
            
 
                 All of the impairment ratings were considered in the 
 
            evaluation of claimant's physical condition, and its impact 
 
            on his earning capacity.
 
            
 
                  After considering all of the factors enumerated above 
 
            that comprise an industrial disability, including claimant's 
 
            age; his motivation to successfully return to work; 
 
            claimant's surgery; the magnitude of the injury; the lack of 
 
            work restrictions placed on claimant; claimant's actual loss 
 
            of earnings; and, the employer's continued employment of 
 
            claimant, it is determined that he has sustained a 10 
 
            percent industrial disability. 
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of three 
 
            hundred fifty-one and 95/100 dollars ($351.95) per week 
 
            commencing July 3, 1991.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That accrued benefits shall be paid in a lump sum, and 
 
            defendants shall receive credit against the award for 
 
            benefits previously paid.
 
            
 
                 That defendants shall pay interest on the award as 
 
            governed by Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action.
 
            
 
                 That defendants shall file a claim activity report, as 
 
            required by the agency. 
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            P O Box 998
 
            Cedar Rapids IA 524065-0998
 
            
 
            Mr James M Peters
 
            Attorney at Law
 
            115 3rd St SE  Ste 1200
 
            Cedar Rapids IA 52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed March 30, 1994
 
                                                 Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            GEORGE ANDERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 951145
 
            GRACE CRYOVAC DIVISION,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
            5-1803
 
            Claimant awarded 10% industrial disability.