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group health plan benefits paid to claimant prior to hearing as shown on the hearing assignment order was withdrawn by defendant at the time of the hearing.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.