Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD TARR,                  :
 
                                          :
 
                 Claimant,                :      File No. 951330
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            JOHN DEERE WATERLOO WORKS,    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Ronald 
 
            Tarr against John Deere Waterloo Works, self-insured 
 
            employer, defendant, for benefits as the result of an 
 
            alleged injury which occurred on March 15, 1989.  A hearing 
 
            was held in Waterloo, Iowa, on January 27, 1992, and the 
 
            case was fully submitted at the close of the hearing.  
 
            Claimant was represented by Robert D. Fulton.  Defendant was 
 
            represented by John W. Rathert.  The record consists of the 
 
            testimony of Ronald Tarr, claimant; Steve Lee, claimant's 
 
            friend; Richard Smith, former coemployee; Charles Buck, 
 
            M.D., defendant's medical director; and joint exhibits 1 
 
            through 13 (transcript page 27).  The deputy ordered a 
 
            transcript of the hearing.  Both parties submitted excellent 
 
            posthearing briefs.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on March 15, 1989, 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability;
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits, and if so, the nature and 
 
            extent of benefits to which he is entitled, to include 
 
            whether claimant sustained a scheduled member injury or an 
 
            injury to the body as a whole; and
 
            
 
                 Whether defendant is entitled to an apportionment of 
 
            disability.
 
            
 
                                        
 
            
 
                               preliminary matters
 
            
 
                 Claimant presented a medical bill for payment at the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            beginning of the hearing, from Orthopaedic Specialists 
 
            (exhibit 5, tr. pp. 6-13).  Medical benefits were not 
 
            designated as a hearing issue on the hearing assignment 
 
            order nor do the notes of the prehearing deputy indicate 
 
            that this issue was raised at the prehearing conference and, 
 
            therefore, this decision will not address this issue.  
 
            Presswood v. Iowa Beef Processors, file number 735442 
 
            (Appeal Decision 1986).  Moreover, the prehearing report 
 
            signed by both attorneys indicates that claimant's enti
 
            tlement to medical benefits was no longer in dispute.
 
            
 
                 The parties agreed that they did not need a 
 
            determination of the issue of whether defendant is entitled 
 
            to a credit pursuant to Iowa Code section 85.38(2) as shown 
 
            on the hearing assignment order because in the event of an 
 
            award of benefits they would be able to work this out 
 
            between themselves (tr. p. 13).
 
            
 
                 Defendant withdrew the issues of notice under Iowa Code 
 
            section 85.23 and timely commencement of action under Iowa 
 
            Code section 85.26 which were shown as hearing issues on the 
 
            hearing assignment order (tr. p. 14).
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            his right shoulder on or about March 15, 1989, which arose 
 
            out of and in the course of employment with employer.
 
            
 
                 Claimant testified that he braced himself with his foot 
 
            and pulled with both hands and all of his body weight of 250 
 
            pounds on a large wrench to tighten an overhead nut on a 
 
            machine when he felt a crunch in the front of his right 
 
            shoulder.  He further testified that he mentioned the 
 
            incident to his coworker, Richard Smith, at the time of the 
 
            injury (tr. pp. 53-70).  Smith, a 27-year employee of 
 
            employer, testified that claimant did, in fact, report the 
 
            injury to him at the time that it occurred.  He said that 
 
            claimant told him that he pulled something or something 
 
            snapped in his shoulder when he was pulling on the large 
 
            heavy wrench.  Smith instructed claimant to report the 
 
            injury to the medical department (tr. pp. 156-171).  Smith 
 
            verified that he and claimant, as machinists, performed 
 
            heavy work (tr. pp. 159-161).
 
            
 
                 Claimant testified that he reported the injury to the 
 
            medical department (tr. p. 70).  The medical department 
 
            notes for March 16, 1989, show that claimant was to be 
 
            restricted from firm gripping or twisting of the right hand 
 
            through March 17, 1989 (ex. 6, p. 32).
 
            
 
                 March 15, 1989, was a Wednesday; March 16, 1989, was a 
 
            Thursday and March 17, 1989, was a Friday.
 
            
 
                 The medical notes of C. D. Bendixen, M.D., the company 
 
            physician, for March 16, 1989, verify that claimant did 
 
            receive a right shoulder injury as described by claimant on 
 
            Wednesday, March 15, 1989.  Dr. Bendixen's note reads as 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            follows:  
 
            
 
                 Complains of discomfort in his right shoulder.   
 
                 Apparently yesterday he was pulling on a wrench 
 
                 and pulled hard on his shoulder and then today was 
 
                 reaching up to operate some type of button on a 
 
                 machine, and noted discomfort and a popping 
 
                 sensation in the shoulder.
 
            
 
                 On examination, I see no evidence of dislocation 
 
                 of teh [sic] shoulder and see no swelling or 
 
                 marked tenderness of the muscle over the shoulder.  
 
                 He is able to run the arm thruogh [sic] full ROM 
 
                 but notes a slight popping sensation.  I do not 
 
                 feel he has had an appreciable injury, but simply 
 
                 may have slightly stretched the shoulder muscles.  
 
                 I restricted him for today to no firm gripping and 
 
                 twisting and limited use of the right arm.  If he 
 
                 has problems by Monday, he should let me know.
 
            
 
            (exhibit 6, page 42)
 
            
 
                 Claimant testified that he continued to have difficulty 
 
            over the weekend on Saturday, March 18, 1989, and Sunday, 
 
            March 19, 1989, which continued into Monday, March 20, 1989.  
 
            Claimant testified that the right shoulder pain became worse 
 
            because of an increased workload that occurred at that time 
 
            and that he went to the emergency room and Covenant Medical 
 
            Center on Tuesday, March 21, 1989 (tr. p. 72).  
 
            
 
                 The emergency trauma record for Covenant Medical Center 
 
            on Tuesday, March 21, 1989, verifies that on March 15 
 
            claimant thought his right shoulder was dislocated, saw John 
 
            Deere medical who decreased his workload.  Claimant reported 
 
            to the trauma center that he was pulling on a wrench and 
 
            heard a crunching sound in his shoulder (ex. 3, p. 84).  The 
 
            emergency room physician, John Littler, M.D, verified that 
 
            claimant had a sensation of "crunching" and right shoulder 
 
            pain since last Thursday.  The onset was when he was working 
 
            overhead at John Deere.  Dr. Littler assessed, "Right 
 
            shoulder pain, capsulitis versus acromion bursitis."  (ex. 
 
            3, p. 86).
 
            
 
                 Claimant's long-time friend, Steve Lee, testified that 
 
            claimant reported the shoulder injury to him at the time it 
 
            occurred and that it imposed several limitations on the use 
 
            of his right arm (tr. pp. 147-156).  Claimant testified that 
 
            he saw James E. Crouse, M.D., an orthopedic surgeon, for 
 
            this injury (tr. p. 73).  The office notes of Dr. Crouse for 
 
            Thursday, March 23, 1989, show that he saw claimant for 
 
            discomfort in his neck, shoulder and upper back.  Dr. Crouse 
 
            found that he had a full range of motion of the shoulder, 
 
            but tenderness in the subacromial area down into the 
 
            shoulder into the axillary area.  X-rays of the cervical 
 
            spine, thoracic spine and shoulder were normal.  His 
 
            impression was overuse syndrome with strain of the shoulder.  
 
            Bursitis, tendenitis.  Cervical strain.  He took claimant 
 
            off work and prescribed physical therapy for his neck and 
 
            shoulder (ex. 2, p. 15).  Dr. Crouse treated claimant until 
 
            September of 1989. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that he next saw Arnold E. 
 
            Delbridge, M.D., an orthopedic surgeon, for a second opinion 
 
            about whether he should have surgery on his right shoulder 
 
            (tr. p. 77).  The notes of Dr. Delbridge for September 13, 
 
            1989, record, "He was working as a mill operator until March 
 
            of this year when he jerked his shoulder and since then he 
 
            has been unable to work because he can't lift his shoulder 
 
            up past about 90 degrees....He probably has a rotator cuff 
 
            injury with perhaps even a tear on the right side."  (ex. 1, 
 
            p. 7).  Dr. Delbridge recommended against surgery because 
 
            claimant had previously received an amputation of the left 
 
            arm just distal to the elbow and that a rotator cuff repair 
 
            may very well cause real problems for claimant in taking 
 
            care of himself.  Dr. Delbridge prescribed physical therapy 
 
            (ex. 1, p. 7).  
 
            
 
                 This evidence of right shoulder injury from pulling on 
 
            the wrench at work on or about March 15, 1989, is not 
 
            rebutted, controverted, contradicted, or refuted by any 
 
            other evidence in the record.  
 
            
 
                 Robert Buck, M.D., the medical director, acknowledged 
 
            that the company made the decision that claimant had not 
 
            sustained a work-related injury and refused to handle it as 
 
            a workers' compensation claim (tr. p. 208).  Employer's 
 
            records show that they thought his back problems were a 
 
            continuation of past back problems, but neither the records 
 
            nor Dr. Buck gave any explanation or basis for their denial 
 
            of the shoulder injury (ex. 6-12).
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury to his right shoulder on or about March 15, 1989, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 It is determined that the injury was the cause of 
 
            temporary disability and that claimant is entitled to 
 
            temporary disability benefits from March 21, 1989, to 
 
            October 11, 1989, a period of 29.143 weeks.
 
            
 
                 Dr. Littler took claimant off work when he saw him at 
 
            the emergency room on March 21, 1989.  He recommended that 
 
            he rest as much as possible until claimant could see Dr. 
 
            Crouse in two days (exs. 3-85 & 3-86).  Claimant also 
 
            testified to this (tr. p. 73).
 
            
 
                 In a letter dated May 22, 1989, Dr. Crouse wrote that 
 
            by March 23, 1989, claimant had developed discomfort so that 
 
            any light activities with reaching at shoulder level and 
 
            above were giving him severe pain.  An x-ray of the shoulder 
 
            was normal, an EMG of the right upper extremity was normal 
 
            as to the shoulder, but showed an ulnar nerve decompression 
 
            of the right forearm for which Dr. Crouse eventually 
 
            performed surgery.  Dr. Crouse concluded this letter by 
 
            stating, "[I]t would certainly appear to me that the neck, 
 
            back and shoulder symptoms are related to the work." (ex. 2, 
 
            p. 8).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Delbridge proceeded on the history given to him by 
 
            claimant for the right shoulder history as if it were, in 
 
            fact, the cause of the right shoulder injury.  He described 
 
            the injury that occurred at work and stated that he has been 
 
            unable to work since then (ex. 1, p. 1).  
 
            
 
                 Wherefore, it is determined that the injury to the 
 
            right shoulder on or about March 15, 1989, was the cause of 
 
            temporary disability.  
 
            
 
                 As previously stated, Dr. Crouse continued claimant off 
 
            work on March 23, 1989 (ex. 2, p. 15).  Claimant continued 
 
            to have neck, upper back and right shoulder complaints, and 
 
            on April 13, 1989, Dr. Crouse said that claimant should 
 
            continue on restricted activities (ex. 2, p. 10).  On May 8, 
 
            1989, Dr. Crouse said claimant is going to continue with 
 
            restricted activities, progressing activities as tolerated 
 
            (ex. 2, p. 10).  On May 22, 1989, Dr. Crouse proceeded with 
 
            the ulnar nerve decompression of the right arm (ex. 2, p. 
 
            10).  Along with his right shoulder problems, claimant was 
 
            encountering back problems which also prompted Dr. Crouse to 
 
            keep claimant off work on May 30, 1989 (ex. 2, p. 6).  On 
 
            June 29, 1989, Dr. Crouse stated that with any reaching 
 
            claimant's shoulder hurts him as well as his neck and back 
 
            and Dr. Crouse continued claimant on restricted activities 
 
            until August (ex. 2, p. 6).
 
            
 
                 Dr. Crouse stated that on July 28, 1989, that claimant 
 
            was restricted from all but light labor and sedentary type 
 
            of activities (ex. 2, p. 4).  On August 29, 1989, Dr. Crouse 
 
            said, with respect to sorting microfilm, that claimant 
 
            shouldn't lift more than five pounds occasionally and should 
 
            do no heavy pushing, pulling, twisting, or gripping (ex. 2, 
 
            p. 3).  These restrictions show that claimant was not able 
 
            to return to work nor was he able to return to substantially 
 
            similar employment.  Iowa Code section 85.34(1).  Even 
 
            though Dr. Crouse said that claimant's condition was 
 
            unchanged on August 14, 1989, he apparently did anticipate 
 
            some possible improvement because on August 29, 1989, he 
 
            approved a return to work sorting microfilm (ex. 2, pp. 3 & 
 
            4).  Dr. Bendixen's note for August 17, 1989, says that 
 
            claimant is off for shoulder and vascular problems (ex. 
 
            6-30).
 
            
 
                 Claimant then changed physicians to Dr. Delbridge who 
 
            apparently had some hope of future improvement.  On 
 
            September 13, 1989, Dr. Delbridge stated, "I think I will 
 
            put him on some therapy for his shoulder and see how that 
 
            works out and see if he can regain some motion here."  (ex. 
 
            1, p. 7).  On September 27, 1989, Dr. Delbridge ordered an 
 
            MRI of the shoulder (ex. 1, p. 7).  On October 11, 1989, Dr. 
 
            Delbridge said the MRI of the shoulder was negative.  He did 
 
            not recommend surgery for the right shoulder.  He said that 
 
            at this point claimant is not able to lift a wrench up on 
 
            top of a mill which is what he has to do at work.  Dr. 
 
            Delbridge stated, "...I don't think he can do that kind of 
 
            work." (ex. 1, p. 7).  
 
            
 
                 Thus, Dr. Delbridge had not completed his diagnostic 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            studies, ruled out surgery, and determined that claimant 
 
            could not return to his old job until October 11, 1989.  
 
            Therefore, the medical notes of Dr. Delbridge on October 11, 
 
            1989, contain the first evidence that significant medical 
 
            improvement was no longer anticipated (Iowa Code section 
 
            85.34(1).  This is further confirmed by his note of November 
 
            8, 1989, where he stated that claimant's shoulder is about 
 
            the same (ex. 1, p. 6).  None of the remaining notes by Dr. 
 
            Delbridge on December 4, 1989; December 12, 1989; January 
 
            17, 1990; February 28, 1990; April 25, 1990; or June 20, 
 
            1990; show any signs of improvement after October 11, 1989.
 
            
 
                 Dr. Buck testified that claimant told him that his 
 
            condition stabilized in about December of 1989 (tr. p. 180).
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to 29.143 weeks of healing period benefits for the period 
 
            from March 21, 1989, when Dr. Littler took claimant off work 
 
            until October 11, 1989, the point at which Dr. Delbridge 
 
            failed to see any further improvement in claimant's 
 
            condition as demonstrated by his office notes and prescribed 
 
            no new diagnostic tests or therapies.  
 
            
 
                 The fact that claimant filed for and received weekly 
 
            indemnity benefits for treatment for narcolepsy, vascular 
 
            by-pass surgery and ulnar nerve surgery (ex. 12, pp. 2-4), 
 
            during a period of proven temporary disability for this 
 
            injury, is immaterial for the reason that claimant 
 
            established that he is entitled to temporary disability 
 
            benefits for this injury from March 21, 1989 to October 11, 
 
            1989.  Dr. Littler took claimant off work for his shoulder.  
 
            Dr. Crouse and Dr. Delbridge continued to keep claimant off 
 
            work for his shoulder.  Claimant is entitled to healing 
 
            period benefits until one of the events in Iowa Code section 
 
            85.34(1) occurs to terminate it.  Claimant is entitled in 
 
            this case to healing period benefits until he reached 
 
            maximum medical improvement.  This deputy knows of nothing 
 
            in the workers' compensation statute or cases that requires 
 
            a reduction or apportionment of healing period benefits (nor 
 
            has defendant cited any such authority) because claimant 
 
            also is suffering some other concurrent disability.
 
            
 
                casual connection-entitlement-permanent disability
 
            
 
                 It is determined that the right shoulder injury of 
 
            March 15, 1989, was the cause of permanent disability, that 
 
            claimant has sustained an industrial disability of 35 
 
            percent to the body as a whole and that claimant is entitled 
 
            to 175 weeks of permanent partial disability benefits.
 
            
 
                 As shown above, Dr. Crouse specifically stated that 
 
            claimant's right shoulder complaints were caused by his work 
 
            and Dr. Delbridge proceeded to treat claimant on the basis 
 
            of the right shoulder injury which occurred on or about 
 
            March 15, 1989, when he injured his shoulder tightening a 
 
            nut with a large wrench.  Dr. Delbridge persisted in his 
 
            diagnosis of rotator cuff injury on June 20, 1990, at which 
 
            time he stated, "He still has rotator cuff problems of his 
 
            right shoulder."  (ex. 1, p. 4).  
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 In his final letter, dated January 28, 1991, Dr. 
 
            Delbridge stated, "Mr. Tarr indicated that he had been 
 
            working as a mill operator at Deere & Company until March of 
 
            1989 when he jerked his shoulder and since then has been 
 
            unable to work because he can't lift his shoulder past about 
 
            90 degrees."  (ex. 1, p. 1).  Dr. Delbridge added, "When he 
 
            was seen on 9-13-89, I made note that he had only one upper 
 
            extremity and was doubtful that he would return to work." 
 
            (ex. 1, p. 2).  Dr. Delbridge further stated on January 28, 
 
            1981:
 
            
 
                    On 1-17-90, I note that Mr. Tarr has a job as a 
 
                 machinist which requires a great deal of use of 
 
                 his right upper extremity.  He was noted on 
 
                 1-17-90 to have a loss of abduction of about 30 
 
                 degrees of his arm and weakness in abduction as 
 
                 well.
 
            
 
                    By 2-28-90, I was convinced that he was not 
 
                 going to return to work.  I was also very hesitant 
 
                 recommending operative intervention for his right 
 
                 upper extremity since he would have to have 
 
                 virtually total care if this were done.
 
            
 
                 ...
 
            
 
                    Mr. Tarr continued to have considerable 
 
                 weakness in his right shoulder.  On 9-25-90 he 
 
                 could, as a result of rehabilitation and therapy, 
 
                 go through almost a virtual entire range of motion 
 
                 of his shoulder but he was very weak against any 
 
                 resistance whatsoever.  Ronald Tarr's diagnosis as 
 
                 of 9-25-90 was impingement syndrome, right 
 
                 shoulder, and rotator cuff injury, right shoulder 
 
                 with possible partial thickness or small rotator 
 
                 cuff tear.
 
            
 
                    As a result of his injury to his right shoulder 
 
                 which incurred while at Deere & Company in March 
 
                 of 1989.  He has an impairment of 8% of the right 
 
                 upper extremity.  Since this involves a rotator 
 
                 cuff, an 8% impairment of the right upper 
 
                 extremity converts to a 5% whole man impairment.
 
            
 
                    It is unlikely that Mr. Tarr will recover 
 
                 enough to return to his job.  Because of his 
 
                 opposite arm being amputated, impairment of his 
 
                 right upper extremity virtually disqualifies him 
 
                 from any job that requires more than minimal 
 
                 abduction and flexion strength of his right upper 
 
                 extremity.
 
            
 
            (exhibit 1, pages 2 & 3)
 
            
 
                 Wherefore, it is determined that the injury of on or 
 
            about March 15, 1989, was the cause of permanent disability 
 
            and claimant has sustained a 5 percent physical impairment 
 
            to the body as a whole.
 
            
 
                 Charles Buck, M.D., the medical director for defendant, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            who is also board certified in occupational medicine, a 
 
            subspeciality of preventative medicine (tr. pp. 173-174), 
 
            originally testified that he did not believe that claimant 
 
            had a serious or permanent injury (tr. pp. 202, 203 & 206), 
 
            but later acknowledged that he did believe claimant 
 
            sustained a significant problem (tr. p. 203) and permanent 
 
            impairment (tr. p. 220).  However, it was his opinion that 
 
            claimant had sustained bicipital tendenitis and that 
 
            claimant's injury was confined to the humerus (tr. pp. 
 
            183-189; ex. 11).  Dr. Buck also did not think that the 
 
            records of Dr. Bendixen, Dr. Crouse or Dr. Delbridge 
 
            indicated a rotator cuff tear (tr. p. 201).  Dr. Buck did 
 
            not believe that claimant had sustained a rotator cuff 
 
            injury because x-rays of the shoulder on September 13, 1989, 
 
            basically showed no bony abnormalities (ex. 1, p. 9).  An 
 
            arthrogram on the right shoulder on September 19, 1989, was 
 
            negative and showed no evidence of a tear (ex. 2, p. 2).  An 
 
            MRI of the right shoulder, requested by Dr. Delbridge and 
 
            performed on September 28, 1989, reported that the rotator 
 
            cuff appeared to be in tact and the joint otherwise appeared 
 
            to be normal (ex. 1, p. 8; tr. pp. 187, 189-194 & 224).  Dr. 
 
            Buck said that claimant's complaints were consistent with a 
 
            rotator cuff injury (tr. p. 182) and compatible with it (tr. 
 
            p. 187), but there was no evidence to support a rotator cuff 
 
            tear (tr. p. 194).  Moreover, he said if claimant had a 
 
            rotator cuff tear it was located in the humerus or arm bone 
 
            (tr. pp. 195 & 221).
 
            
 
                 Dr. Delbridge only testified to rotator cuff injury and 
 
            possible rotator cuff tear.
 
            
 
                 Dr. Buck granted that he examined claimant on January 
 
            2, 1992, just a few days prior to hearing (tr. p. 176) at 
 
            the request of employer's attorney (tr. pp. 214-215).  
 
            Claimant's attorney contended in his brief and at hearing 
 
            that it is difficult to determine whether Dr. Buck conducted 
 
            a medical examination or a legal examination (tr. pp. 
 
            214-215; claimant's brief p. 13).  Dr. Buck admitted that 
 
            bicipital tendonitis was within the rotator cuff (tr. p. 
 
            235).  Dr. Buck admitted claimant had crepitation in his 
 
            shoulder and did not have normal fluid motion with the right 
 
            shoulder.
 
            
 
                 This conflict of testimony between these two medical 
 
            experts, Dr. Buck and Dr. Delbridge, is resolved in favor of 
 
            Dr. Delbridge who was the treating orthopedic surgeon for 
 
            over one year because he had the best opportunity to observe 
 
            claimant and had the ultimate responsibility for the success 
 
            or failure of his treatment.  Dr. Delbridge saw claimant on 
 
            several occasions whereas Dr. Buck only saw claimant for a 
 
            few minutes on one occasion just a few days prior to hearing 
 
            for litigation purposes.  Rockwell Graphics Systems, Inc. v. 
 
            Prince, 366 N.W.2d 187, 192 (Iowa 1985).  Also an experts 
 
            qualifications must be taken into consideration and the 
 
            opinion of a practicing orthopedic surgeon is preferred over 
 
            the medical director of the defendant who had no experience 
 
            in the field of orthopedic medicine.  Reiland v. Palco, 
 
            Inc., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 56 (1975); Dickey v. ITT Continental Baking 
 
            Co., Thirty-fourth Biennial Report of the Industrial 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Commissioner 89 (1979); Lemon v. Georgia Pacific Corp., I 
 
            Iowa Industrial Commissioner Report 204, 205 (App. Dec. 
 
            1981); Clement v. Southland Corp, I Iowa Industrial 
 
            Commissioner Report 56, 58 (1981).
 
            
 
                 Claimant demonstrated several times at hearing and to 
 
            various doctors that the pain was in the front of his right 
 
            shoulder and he did not point to his arm.  Claimant always 
 
            complained to the doctors about his shoulder; he never 
 
            complained about his arm or the bicipital tendon.
 
            
 
                 A rotator cuff injury is considered to be an injury to 
 
            the body as a whole.  Payton v. Sheller Globe Corp., file 
 
            895808 (filed December 10, 1991) (on appeal); Tompkins v. 
 
            John Morrell, file 946532 (filed December 23, 1991) (on 
 
            appeal); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial 
 
            Commissioner Report 281 (1982); Godwin v. Hicklin GM Power, 
 
            II Iowa Industrial Commissioner Report 170 (1981); Alm v. 
 
            Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949).
 
            
 
                 All of the doctors, even Dr. Buck, referred to the 
 
            injury as a shoulder injury.  None of them, including Dr. 
 
            Buck, called it an arm injury when talking about it.  On 
 
            January 7, 1990, Dr. Delbridge noted a loss of abduction of 
 
            about 30 degrees and weakness in abduction as well (ex. 1, 
 
            pp. 2 & 6).  Former Industrial Commissioner Robert C. 
 
            Landess determined that a loss of range of motion was 
 
            sufficient to cause an injury to the shoulder to be an 
 
            injury to the body as a whole.  Fullerton v. Caterpiller 
 
            Tractor Co., IV Iowa Industrial Commissioner Report 135 
 
            (App. Dec. 1984).
 
            
 
                 Claimant's greatest impairment and disability is his 
 
            limited ability to reach out with his arm or to elevate his 
 
            arm.  These are functions of the entire shoulder, both sides 
 
            of the glenohumeral joint, and not just the arm alone.  
 
            Therefore, it is determined that the injury to claimant's 
 
            shoulder is an injury to the body as a whole.  Merritt v. 
 
            Quaker Oats, file 705825 (filed March 7, 1988) (aff'd 
 
            November 9, 1989); Brant v. Iowa Power and Light Company, 
 
            file 492024 (filed April 9, 1987).
 
            
 
                 Wherefore, it is determined that the injury to the 
 
            right shoulder which claimant sustained on or about March 
 
            15, 1989, is an injury to the body as a whole and claimant 
 
            is entitled to industrial disability benefits.
 
            
 
                 Claimant, born July 15, 1946, was 42 years old at the 
 
            time of the injury and 44 years old at the time of the 
 
            hearing.  Claimant's industrial disability is increased 
 
            because it occurred during the peak years in his earnings 
 
            career.  McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (App. Dec. 1989); Walton v. B & H Tank 
 
            Corp., II Iowa Industrial Commissioner Report 426 (1981); 
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 34 (Appeal Decision  1979).
 
            
 
                 Claimant has the advantage of a high school education 
 
            and a neuropsychological consultant, Richard J. Robert, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Ph.D., determined on August 6, 1989, that claimant has above 
 
            average intelligence (ex. 3, p. 62).  In addition, claimant 
 
            has received general machinist training, some welding 
 
            training and some marketing training (tr. pp. 41-42).  
 
            Therefore, claimant's education and general intelligence 
 
            level should not be an impairment to finding new employment 
 
            (tr. p. 40).
 
            
 
                 The evidence shows that claimant has a enormous number 
 
            of health problems and prior injuries (ex. 10, pp. 21-22; 
 
            ex. 3, pp. 62-65).  As a result of an automobile accident in 
 
            1979, claimant's left arm was amputated distal to the left 
 
            elbow.  Claimant also suffers from a vascular problem in the 
 
            extremities and had one operation prior to this injury and 
 
            has had 11 vascular surgeries since this injury.  Dr. Crouse 
 
            also performed ulnar nerve surgery on the right arm after 
 
            this injury.  Claimant has been treated for narcolepsy, 
 
            elbow problems, neck problems and back problems (tr. pp. 87, 
 
            90, 95 & 113).  
 
            
 
                 Claimant's counsel pointed out in his opening remarks 
 
            that claimant continued to work following all of his 
 
            injuries and accidents (tr. p. 29).  Claimant testified that 
 
            in spite of all of his health problems, he always returned 
 
            to work prior to this injury (tr. pp. 89 & 95).  After this 
 
            injury, Dr. Crouse restricted claimant's activities 
 
            specifically due to this injury to his shoulder, even though 
 
            claimant had cervical and thoracic and lumbar complaints at 
 
            the same time and even though he had the ulnar decompression 
 
            subsequent to this injury.
 
            
 
                 All of claimant's prior ailments and injuries are taken 
 
            into consideration in the determination of industrial 
 
            disability in this case.  However, as defendant's counsel 
 
            pointed out, the amputation of the left arm should not 
 
            properly increase industrial disability owed by employer 
 
            because claimant's proper remedy for that injury now is the 
 
            Second Injury Fund of Iowa (tr. p. 36).  Iowa Code section 
 
            85.64 provides as follows:
 
            
 
                    If an employee who has previously lost, or lost 
 
                 the use of, one hand, one arm, one foot, one leg, 
 
                 or one eye, becomes permanently disabled by a 
 
                 compensable injury which has resulted in the loss 
 
                 of or loss of use of another such member or organ, 
 
                 the employer shall be liable only for the degree 
 
                 of disability which would have resulted from the 
 
                 latter injury if there had been no pre-existing 
 
                 disability.
 
            
 
                 The Second Injury Fund of Iowa is not a defendant in 
 
            this case.
 
            
 
                 All of the other ailments and injuries are taken into 
 
            consideration and it is determined that they do not increase 
 
            claimant's industrial disability for the reason that he 
 
            always returned to work until this injury.
 
            
 
                 This injury does prevent claimant from returning to his 
 
            work as a machinist for employer.  Claimant is a career 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            employee of employer starting to work for employer when he 
 
            was age 18 right after graduation from high school (tr. p. 
 
            43).
 
            
 
                 One of the major items of industrial disability is the 
 
            fact that claimant is foreclosed from performing his former 
 
            employment with employer.  Rohrberg v. Griffin Pipe Products 
 
            Co., I Iowa Industrial Commissioner Report 282 (1984); 
 
            Michael v. Harrison County, Thirty-fourth Biennial Report of 
 
            the Industrial Commissioner 218, 220 (Appeal Decision 
 
            January 30, 1979).
 
            
 
                 Dr. Delbridge was aware of claimant's health history 
 
            and specifically tailored his permanent impairment to the 
 
            injury to his right shoulder (ex. 1, p. 2).
 
            
 
                 Claimant's plans for retirement are taken into 
 
            consideration in the determination of industrial disability 
 
            (tr. p. 40).  There is no evidence that claimant made any 
 
            attempt to find work within his remaining capabilities.  He 
 
            did not seek employment with employer, nor did employer 
 
            attempt to accommodate claimant with work which he could do.  
 
            
 
                 On October 7, 1989, claimant was awarded social 
 
            security disability benefits beginning in September 1989, 
 
            based upon a determination that claimant had become disabled 
 
            on March 21, 1989 (ex. 8, p. 1).  It should be noted that 
 
            the determination of permanent disability by the social 
 
            security administration was based on claimant's entire 
 
            health condition and not simply the right shoulder injury.  
 
            Also, the Social Security Administration follows different 
 
            standards.  Thus, it clearly appears that claimant has 
 
            retired due to his overall health condition and receives 
 
            $936 a month from the Social Security Administration and 
 
            $757.90 from employer's disability pension plan (tr. p. 40).  
 
            The social security amount of $936 has probably been 
 
            increased for cost of living a number of times since October 
 
            7, 1989.  Thus, claimant is probably receiving in excess of 
 
            $1700 per month in disability retirement benefits.
 
            
 
                 Claimant testified that his primary disability is that 
 
            he cannot elevate his right arm and he cannot reach forward 
 
            with it (tr. pp. 79, 85, 86 & 135).
 
            
 
                 Wherefore, based upon () an impingement syndrome, right 
 
            shoulder; and rotator cuff injury, right shoulder with 
 
            possible partial thickness or small rotator cuff tear; () 
 
            that caused claimant to be off work from March 21, 1989, 
 
            until October 11, 1989; () which caused claimant to sustain 
 
            an 8 percent permanent impairment to the right upper 
 
            extremity which Dr. Delbridge stated was a 5 percent 
 
            permanent impairment to the body as a whole; () which 
 
            foreclosed claimant from returning to his 34-year career 
 
            employment with employer since 1965; () when claimant was in 
 
            his early 40's and near the peak years of his earnings 
 
            career; () and limiting this award to the amount of 
 
            impairment to the shoulder alone, independent of claimant's 
 
            other health problems; () considering claimant's retirement 
 
            on disability due to his health; () and based upon all of 
 
            the other factors used to determine industrial disability, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (Appeal Decision March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 
 
            State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985); () based upon all of 
 
            the evidence in this case; and () based upon agency 
 
            expertise, [Iowa Administrative Procedure Act 17A.14(5)], it 
 
            is determined that claimant has sustained a 35 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 175 weeks of permanent partial disability benefits.
 
            
 
                                  apportionment
 
            
 
                 No apportionment is required for the reason that the 
 
            allowance in this case is based entirely upon the right 
 
            shoulder injury which occurred on or about March 15, 1989.  
 
            It is not based on claimant's numerous other injuries and 
 
            health complaints.  With respect to the amputated left arm, 
 
            the proper resource is the Second Injury Fund.  With respect 
 
            to all other illnesses and injuries, claimant did not 
 
            demonstrate that they increased his industrial disability 
 
            because he always returned to work and was able to perform 
 
            his job.  He has the same ability now, except he is 
 
            foreclosed from this job due to this injury.  Moreover, 
 
            defendant did not demonstrate what portion, if any, of 
 
            claimant's disability is identifiable and independently 
 
            attributable to his condition prior to the instant injury.    
 
            Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Voshell v. 
 
            William Roy's Remodeling, file 805464 (App. Dec. February 
 
            27, 1991); Tussing v. George A. Hormel & Co., 417 N.W.2d 457 
 
            (Iowa 1990); Varied Industries v. Sumner, 353 N.W.2d 407 
 
            (Iowa 1984).
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained an injury to his right shoulder 
 
            on or about March 15, 1989, which arose out of and in the 
 
            course of employment with employer.  Iowa Code section 
 
            85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 That the injury was the cause of temporary disability.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 
 
            607 (1945).
 
            
 
                 That claimant is entitled to 29.143 weeks of healing 
 
            period benefits for the period from March 21, 1989 to 
 
            October 11, 1989.  
 
            
 
                 That the injury was the cause of permanent disability.  
 
            Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 
 
            18 N.W.2d 607.
 
            
 
                 That the injury is an injury to the body as a whole and 
 
            is not a loss to a scheduled member.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 That claimant has sustained a 35 percent industrial 
 
            disability to the body as a whole.  Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 
 
            899 (1935).
 
            
 
                 That claimant is entitled to 175 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That no apportionment is required to be made in this 
 
            case.  
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant twenty-nine point one 
 
            four three (29.143) weeks of healing period benefits for the 
 
            period from March 21, 1989 to October 11, 1989, at the 
 
            stipulated rate of four hundred forty-three and 78/100 
 
            dollars ($443.78) per week in the total amount of twelve 
 
            thousand nine hundred thirty-three and 08/100 dollars 
 
            ($12,933.08) commencing on March 21, 1989.
 
            
 
                 That defendant pay to claimant one hundred seventy-five 
 
            (175) weeks of permanent partial disability benefits at the 
 
            stipulated rate of four hundred forty-three and 78/100 
 
            dollars ($443.78) per week in the total amount of 
 
            seventy-seven thousand six hundred sixty-one and 50/100 
 
            dollars ($77,661.50) commencing on October 11, 1989.
 
            
 
                 That defendant is entitled to a credit for any pay that 
 
            claimant received when he attempted to return to work for a 
 
            few days in May and September of 1989.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendant pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.  
 
            In addition, claimant is allowed two thousand four hundred 
 
            eight dollars ($248) in costs attached to the prehearing 
 
            report for the following items:  Medical report of 
 
            Orthopaedic Specialists - $18; industrial commissioner 
 
            filing fee - $65 and the medical evaluation and report of 
 
            Dr. Delbridge - $165.  The charges for medical records and a 
 
            conference with a doctor are trial preparation expenses for 
 
            which claimant should bear the burden and are not considered 
 
            to be allowable costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            600 First National Bldg
 
            PO Box 2634
 
            Waterloo, IA  50704-2634
 
            
 
            Mr. John W. Rathert
 
            Attorney at Law
 
            PO Box 178
 
            Waterloo, Iowa  50704-0178
 
            
 
                 
 
            
 
 
         
 
         Page   1
 
         
 
                                       51107 51108.50 51401 51402.20 
 
                                       51402.30 51801 1402.40 1402.40 
 
                                       1803.1 1803 51806
 
                                       Filed March 5, 1992
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         RONALD TARR,                  :
 
                                       :
 
              Claimant,                :      File No. 951330
 
                                       :
 
         vs.                           :
 
                                       :  A R B I T R A T I O N
 
         JOHN DEERE WATERLOO WORKS,    :
 
                                       :      D E C I S I O N
 
              Employer,                :    
 
              Self-Insured,            :      
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         51107 51108.50 51401 51402.20 51402.30
 
         It was determined that claimant sustained an injury arising out 
 
         of and in the course of employment with employer when his right 
 
         shoulder went crunch while tightening a large bolt on his machine 
 
         with a very large wrench.
 
         
 
         51801
 
         Claimant awarded healing period benefits from the date he was 
 
         taken off work until it was determined by a detailed look at the 
 
         medical records and doctor's notes that he attained maximum 
 
         medical improvement.  He was unable to return to work or 
 
         substantially similar work.
 
         
 
         1402.40
 
         It was determined that claimant was entitled to healing period 
 
         benefits for the period he proved he was entitled to.  The fact 
 
         that he suffered other health problems and disabilities during 
 
         this period is immaterial.  The workers' compensation statute and 
 
         case law contains no reduction or apportionment of healing period 
 
         benefits simply because claimant is concurrently disabled for 
 
         other reasons or is entitled to other disability benefits for 
 
         some other reason.
 
         
 
         1402.40 1803.10
 
         A shoulder injury was determined to be an injury to the body as a 
 
         whole.  A loss of range of motion of the shoulder qualifies a 
 
         shoulder injury as an injury to the body as a whole.  The fact 
 
         that claimant could not reach out with his arm or elevate his arm 
 
         are indications that the shoulder injury is an injury to the body 
 
         as a whole because these are functions of the entire shoulder, 
 
         both sides of the glenohumeral joint, and not just the arm alone.  
 
         Further, a rotator cuff injury is generally considered to be an 
 
         injury to the body as a whole.  Several cites.  
 
         
 
         
 
         
 

 
         
 
         Page   2
 
         
 
         1803
 
         The fact that claimant had sustained an amputated left arm prior 
 
         to this injury to his right shoulder could not be used to 
 
         increase his industrial disability because the resource for that 
 
         recovery would be the Second Injury Fund of Iowa.  
 
         Claimant had an enormous amount of other accidents, injuries, and 
 
         health impairments to his neck, back, elbow, narcolepsy and a 
 
         vascular disease that caused 12 surgeries.  These were taken into 
 
         consideration but did not increase the industrial disability 
 
         because claimant had always been able to work and to return to 
 
         work after each of these specific problems.  He was awarded 
 
         substantial industrial disability because this injury to the 
 
         right shoulder foreclosed claimant from returning to his old 
 
         employment as a machinist because of this injury alone and not 
 
         coupled with any other factors.  Claimant was age 40, had a high 
 
         school education with some additional training, he was a career 
 
         employee of this employer since age 18, who had sustained an 
 
         impingement syndrome, right shoulder, rotator cuff injury, with a 
 
         possible partial thickness tear, rated at 8 percent of the right 
 
         upper extremity and 5 percent of the body as a whole.
 
         Claimant had applied for and was receiving social security 
 
         disability benefits and employer disability retirement benefits 
 
         in the amount of approximately $1,700 per month and thus, he was  
 
         considered to be retired.  He made no search for new employment.
 
         It was determined that claimant sustained a 35 percent industrial 
 
         disability to the body as a whole.
 
         
 
         51806
 
         Defendant is not entitled to an apportionment because the award 
 
         was based entirely on this injury and because defendant did not 
 
         show any independent identifiable portion of preexisting 
 
         disability.
 
         
 
         52907
 
         Some costs allowed.  Some costs disallowed.
 
         
 
         52906
 
         A medical bill raised for the first time at hearing was not 
 
         addressed because (1) it was not raised at the prehearing 
 
         conference, (2) medical benefits were not designated as hearing 
 
         issues on the hearing assignment order, and (3) the prehearing 
 
         report showed that medical benefits were no longer in dispute.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            THOMAS F HART,                :
 
                                          :
 
                 Claimant,                :       File No. 951370
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            ARCHER DANIELS MIDLAND,       :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding brought by Thomas F. Hart against 
 
            his employer Archer Daniels Midland Company seeking 
 
            determination of the extent of permanent partial disability 
 
            caused by the injury of June 17, 1990.  It was stipulated 
 
            that claimant has a 5 percent disability of his left leg and 
 
            the award is to be made under section 85.34(2)(s).
 
            
 
                 Claimant's petition for a commutation which was 
 
            originally filed in this proceeding is dismissed without 
 
            prejudice.
 
            
 
                 The case was heard at Davenport, Iowa, on March 31, 
 
            1994.  The record consists of testimony from Thomas F. Hart, 
 
            claimant's exhibits 1 through 10 and defendant's exhibits 1 
 
            through 5.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Thomas F. Hart fell from a ladder and sustained a 
 
            compound fracture of his right lower leg on June 17, 1990.  
 
            He underwent surgical fixation of the fracture.  He was 
 
            hospitalized until August 8, 1990.  (claimant's exhibit 6, 
 
            page 9).  After an extended period of recuperation he 
 
            resumed work on January 25, 1991.  Xerxes R. Colah was the 
 
            primary treating physician and surgeon.  The fractures 
 
            healed.  Claimant has developed arthritis and the tibia and 
 
            fibula have grown together.  He has residual problems with 
 
            swelling and restricted motion at his ankle joint.  (cl. ex. 
 
            7, p. 20; cl. ex. 10, pp. 12, 15 and 27; defendant's exs. 1, 
 
            2).
 
            
 
                 Claimant is able to stand and walk but he has problems 
 
            with pain and swelling in his lower leg.  He is unable to 
 
            run, turn sharply or climb ladders.  He has difficulty on 
 
            stairs and uneven ground.
 
            
 
                 Claimant has been evaluated by Dr. Colah as having a 70 
 
            percent impairment of his right lower extremity.  (cl. ex. 
 
            10, pp. 24-26).  Claimant has also been evaluated by Camilla 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            J. Frederick, M.D., and by John S. Kock, M.D., who have both 
 
            determined that claimant has a 35 percent impairment of his 
 
            right lower extremity.
 
            
 
                 It appears that Drs. Frederick and Kock performed their 
 
            evaluations solely upon range of motion.  It does not appear 
 
            that they assigned any impairment for the arthritis which is 
 
            developing and the swelling problem which affects claimant's 
 
            use of his leg.  On the other hand, Dr. Colah indicated that 
 
            he gave claimant the same rating as though an amputation had 
 
            occurred.  
 
            
 
                 It is found that the principle uses of a foot and leg 
 
            are standing and ambulation.  The claimant is clearly 
 
            impaired in this regard.  It is only the extent of 
 
            impairment that is disputed.  As indicated by Dr. Colah, the 
 
            AMA Guides are an arbitrary means of determining a rating of 
 
            impairment.  Impairment is not the same as disability.  It 
 
            is found that Thomas Hart has a 45 percent disability of his 
 
            right leg as a result of the injury he sustained on June 17, 
 
            1990.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  Compensation for scheduled 
 
            permanent partial disability is determined under Iowa Code 
 
            section  85.34(2)(a) - (t) according to the functional loss 
 
            of use of the member without considering the impact of the 
 
            injury upon the individual's earnings or earning capacity.  
 
            Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 
 
            (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 
 
            184 N.W. 746 (1921).
 
            
 
                 It is well recognized that in section 85.34(2)(o) and 
 
            (s) of the Code the words which appear are "loss of."  The 
 
            words "impairment" or "disability" do not appear.  The term 
 
            "loss of" has been construed by the Iowa Supreme Court to 
 
            mean "loss of use."  The statute is not designed to be 
 
            limited to ratings provided by any standardized table or 
 
            guide.  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).  Agency 
 
            rule 343 IAC 2.4 is not mandatory or exclusive.  It is 
 
            merely a permissive guide which may be used.  In this case 
 
            it is noted that Thomas Hart has retained the ability to use 
 
            his right leg for walking and standing, the things for which 
 
            legs are commonly used.  He has lost the ability to run, 
 
            jog, climb ladders, and perform similar functions.  He is 
 
            afflicted with swelling if he sits for extended periods.  It 
 
            is determined that Thomas Hart has experienced a 45 percent 
 
            loss of use of his right leg under the provisions of Iowa 
 
            Code section 85.34(2)(o).  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 Benefits for permanent partial disability of two 
 
            members caused by a single accident is a scheduled benefit 
 
            under section 85.34(2)(s); the degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro, 332 N.W.2d 886.
 
            
 
                 The 5 percent disability of the left leg is equivalent 
 
            to 2 percent of the whole person.  The 45 percent disability 
 
            of the right leg is equivalent to 18 percent of the whole 
 
            person.  These combine to a 20 percent disability which, 
 
            under section 85.34(2)(s), entitles claimant to 100 weeks of 
 
            compensation for permanent partial disability.
 
            
 
                 Claimant is entitled to recover the costs set forth on 
 
            his affidavit of costs except that the fee for Dr. Colah 
 
            should be limited to $150 pursuant to Code section 622.72.  
 
            The net result is therefore $343.26.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendant pay Thomas Hart 
 
            one hundred (100) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of three hundred 
 
            seventy-three and 36/100 dollars ($373.36) per week.  
 
            Defendant is entitled to credit for the eighty (80) weeks of 
 
            permanent partial disability compensation previously paid.  
 
            The balance of twenty (20) weeks shall be paid in a lump sum 
 
            together with interest pursuant to section 85.30.
 
            
 
                 It is further ordered that defendant pay the costs of 
 
            this action in the amount of three hundred forty-three and 
 
            26/100 dollars ($343.26).
 
            
 
                 It is further ordered that defendant pay the filing fee 
 
            of sixty-five dollars ($65) to this agency within twenty 
 
            (20) days of the filing of this decision.
 
            
 
                 It is further ordered that defendant file claim 
 
            activity reports as requested by this agency.
 
            
 
                 Signed and filed this __________ day of April, 1994.
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. John J. Wolfe, Jr
 
            Attorney at Law
 
            402 6th Ave S
 
            Clinton, Iowa  52732
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            115 3rd St SE STE 1200
 
            Cedar Rapids, Iowa  52401
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                                1402.40 1808 52907
 
                                                Filed April 15, 1994
 
                                                Micheal G. Trier
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            THOMAS F HART, 
 
                      
 
                 Claimant,                  File No. 951370
 
                      
 
            vs.                          A R B I T R A T I O N
 
                            
 
            ARCHER DANIELS MIDLAND,         D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ------------------------------------------------------------
 
            
 
            1402.40 1808
 
            Where opinions of physicians differed, claimant was found to 
 
            have a 45 percent loss of use of his right leg and a 45 
 
            percent disability under section 85.34(2)(s).
 
            
 
            52907
 
            Expert witness fee limited to $150 pursuant to section 
 
            622.72.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT GLENN NEWELL,          :
 
                                          :
 
                 Claimant,                :      File No. 951662
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            ARATEX SERVICES, INC.,        :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            Glenn Newell, claimant, against Aratex Services, Inc., 
 
            self-insured employer, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an alleged injury 
 
            sustained on March 19, 1990.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on August 13, 1992, in Sioux City, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The record in this case consists of claimant's 
 
            exhibits 1 through 44 and defendant's exhibits 45 through 
 
            60.  The claimant was present and testified.  Also present 
 
            and testifying were Patricia Newell, Rodney Floyd Sitzmann, 
 
            Kenny Hartkopp, and Rick Bryce.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            August 13, 1992, and statements made by the parties at the 
 
            hearing, the following issues have been presented for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on March 19, 
 
            1990, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is the cause of 
 
            temporary and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits, 
 
            if defendants is found liable for the injury;
 
            
 
                 4.  The times off work for which claimant seeks either 
 
            temporary total disability or healing period benefits; 
 
            
 
                 5.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendant is liable for the 
 
            injury; 
 
            
 
                 6.  Whether defendant is liable for Dr. Blume's medical 
 
            bill which was in excess of $500; 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 7.  Whether claimant's medical expenses are causally 
 
            connected to his work injury;
 
            
 
                 8.  Whether claimant is entitled to recover penalty 
 
            benefits under Iowa Code section 86.13; and
 
            
 
                 9.  Whether claimant is entitled to vocational 
 
            rehabilitation benefits under Iowa Code section 85.70.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on March 21, 1951, and completed the 
 
            twelfth grade of school.  Upon graduation from high school 
 
            in 1969, claimant served one year in the United States 
 
            Marines.  He was discharged after it was discovered he had 
 
            diabetes mellitus.  Claimant attended Morningside College in 
 
            Sioux City, Iowa, and in 1974 received a bachelor's degree 
 
            in business administration.  After graduating from college, 
 
            claimant worked as an accounting supervisor at a rural 
 
            electric cooperative in Estherville, Iowa.  He worked there 
 
            from 1974 to 1975 and then moved to Sac County Rural 
 
            Electric Cooperative for better pay.  He worked in Sac 
 
            County for approximately one year and returned to Sioux City 
 
            in November 1976.  In Sioux City he worked seven years as a 
 
            general manager for Midtown Music and Amusement Company.  
 
            The business was sold in 1983 and he then took a job with 
 
            Iowa Beef Processors in Dakota City, Nebraska.  He was hired 
 
            as a supply supervisor.  He worked there about one year.  On 
 
            July 23, 1984, he commenced working for Aratex.  Claimant 
 
            was hired as a branch manager and worked in this capacity 
 
            for two and a half years.  He was then made a special 
 
            projects coordinator and put in charge of Iowa Beef accounts 
 
            receivable.  Generally, claimant's duties with employer 
 
            during his five years of service included personnel 
 
            training, direct sales and route running.  
 
            
 
                 Claimant's deposition was taken on March 5, 1992, and 
 
            admitted into evidence in lieu of extensive testimony at 
 
            hearing.  In his deposition testimony, claimant thoroughly 
 
            described the duties of a route driver.  He stated that even 
 
            though he was a special projects coordinator, he was 
 
            required to run a weekly route in the summertime and less 
 
            frequently during the wintertime.  Claimant admitted that he 
 
            wasn't very fond of route work.  The job consisted of being 
 
            on the road an entire day, picking up and delivering 
 
            clothes, towels and rugs.  This involved heavy lifting and 
 
            carrying of items over the shoulder.  
 
            
 
                 Claimant testified that on March 19, 1990, he was 
 
            unloading a truck, throwing bags, mats and mops, and other 
 
            items off the truck when he felt pain in his hips, back and 
 
            neck.  In his deposition he stated that while he didn't have 
 
            any pain in his arm, he felt pain every time he raised his 
 
            left shoulder.  Claimant testified that he sought medical 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            treatment from his family physician, J.S. Burgfechtel, M.D., 
 
            and Mark S. Taylor, D.O., one of his partners.  Despite his 
 
            symptoms, claimant missed no time from work.  On May 24, 
 
            1990, claimant was asked to do a route by himself and he 
 
            refused because of his medical problems.  He was immediately 
 
            suspended by Kenneth Hartkopp, general manager.  On June 8, 
 
            1990, the suspension was lifted and claimant was placed on 
 
            six months medical leave.  Because claimant was not able to 
 
            return to work after six months, he was terminated on 
 
            November 19, 1990.  Claimant has not worked since May 24, 
 
            1990.  He received workers' compensation benefits from May 
 
            24, 1990 through March 6, 1991.  
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was diagnosed with diabetes mellitus in 1974.  The 
 
            medical records indicate that claimant has been treated by 
 
            J.S. Burgfechtel, M.D., at Midtown Medical Clinic since 
 
            February 10, 1983, for various medical problems.  He was 
 
            hospitalized on June 12, 1984, with complaints of back and 
 
            neck pain after falling down three steps.  Lumbosacral spine 
 
            x-rays revealed spina bifida.  In January 1987, he hurt his 
 
            back while unloading laundry.  X-rays of the dorsal and 
 
            cervical spine taken February 17, 1987, were normal.  In 
 
            August 1987 claimant was hospitalized due to complications 
 
            from diabetes.  On April 27, 1989, claimant was admitted to 
 
            St. Luke's Regional Medical Center for evaluation of chest 
 
            pain and shortness of breath.  A treadmill exercise test was 
 
            negative.  Pulmonary function studies were normal.  Coronary 
 
            artery disease was ruled out (exhibits 44-49).
 
            
 
                 The record contains a first report of injury indicating 
 
            that claimant reported to employer that he suffered lower 
 
            back strain on March 19, 1990, during the course of 
 
            employment with employer (ex. 3).  
 
            
 
                 Claimant presented to the emergency room at St. Luke's 
 
            Medical Center on March 19, 1990, with complaints of low 
 
            back discomfort.  Lumbosacral spine x-rays revealed minimal 
 
            spurring at L3, L4 and L5 with intact bones and disc spaces 
 
            and normal alignment.  A diagnosis of acute lumbosacral 
 
            sprain with spasm was made (ex. 4).  
 
            
 
                 Claimant testified that he took vacation from March 20 
 
            through April 1, 1990.  The medical records indicate that 
 
            Dr. Burgfechtel took claimant off work on March 23, 1990, 
 
            and released him to return to work on April 2, 1990, with a 
 
            30-pound lifting restriction for one week then, as 
 
            tolerated.  Follow-up evaluations were conducted on April 6 
 
            and April 20, 1990.  Claimant was given pain medication and 
 
            back care exercises (ex 5, pages 1-5).
 
            
 
                 Claimant testified that he last worked for employer on 
 
            May 23, 1990.  On May 24, 1990, claimant was asked by Kenny 
 
            Hartkopp, general manager at Aratex, to run a route by 
 
            himself.  Claimant refused unless someone was assigned to 
 
            help him because of his 30-pound lifting restriction.  He 
 
            was told by Mr. Hartkopp to make smaller bundles but 
 
            claimant refused.  Therefore, he was suspended indefinitely, 
 
            without pay, pending investigation.  A copy of the 
 
            suspension notice is contained at exhibit 30.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 On May 24, 1990, claimant saw Dr. Burgfechtel with 
 
            complaints of left neck and shoulder pain.  On examination, 
 
            his neck was stiff and tight.  He was very sensitive in the 
 
            left posterior lower paracervical muscles of the left 
 
            trapezius and left shoulder.  Abduction of the left shoulder 
 
            was accomplished to about 80 degrees.  Conservative therapy 
 
            and medication were prescribed (ex. 5, p. 5).  
 
            
 
                 Dr. Burgfechtel referred claimant to St. Luke's for 
 
            physical therapy on May 31, 1990.
 
            
 
                 On June 8, 1990, after investigation of claimant's 
 
            medical condition, Mr. Hartkopp lifted claimant's 
 
            suspension.  Claimant was then placed on medical leave of 
 
            absence effective May 25, 1990.  His note stated that 
 
            "Aratex Company Policy provides all employees with a medical 
 
            leave of absence up to 180 days in any one year period if 
 
            the leave is authorized by a competent physician."  He 
 
            informed claimant that his medical leave expired on November 
 
            20, 1990, and his employment would be terminated at that 
 
            time unless he was released by his physician to return to 
 
            full duty (ex. 31).  
 
            
 
                 Claimant continued to see Dr. Burgfechtel for 
 
            complaints of neck and left arm pain.  He also continued 
 
            with physical therapy at St. Luke's.  On June 21, 1990, 
 
            claimant underwent EMG studies which revealed no 
 
            electrodiagnostic evidence of left upper extremity 
 
            peripheral entrapment neuropathy plexopathy or cervical 
 
            radiculopathy (ex. 7).
 
            
 
                 On July 3, 1990, Henrietta Scholten, physical therapist 
 
            at St. Luke's, reported that claimant was seen for 11 
 
            physical therapy visits.  His pain now appeared to be 
 
            localized in the left shoulder along the supraspinatus with 
 
            the low back and neck pain improved (ex. 6).  
 
            
 
                 Because of claimant's persistent neck, left trapezius 
 
            and left shoulder complaints, Dr. Burgfechtel referred 
 
            claimant to W.O. Samuelson, M.D.  Dr. Samuelson saw claimant 
 
            on July 25, 1990.  On examination he had tenderness with 
 
            external rotation of the left shoulder and was limited in 
 
            the last 30 degrees of external rotation.  X-rays showed no 
 
            abnormality of the glenohumeral joint.  Dr. Samuelson 
 
            diagnosed rotator cuff strain and impingement syndrome.  
 
            Claimant was prescribed Motrin and offered steroid 
 
            injections (ex. 9).
 
            
 
                 On October 9, 1990, claimant underwent a vocational 
 
            rehabilitation physical examination and history with the 
 
            Iowa Division of Vocational Rehabilitation.  It was 
 
            recommended that he avoid employment requiring heavy arm 
 
            lifting or other activity which would produce neck or back 
 
            symptoms (ex. 10).  
 
            
 
                 On July 31, 1990, Janet Palmer, claims adjuster for 
 
            Alexsis, wrote to Dr. Burgfechtel requesting an assessment 
 
            of claimant's status.  Dr. Burgfechtel referred her to Dr. 
 
            Samuelson (ex. 10).  On November 26, 1990, Dr. Samuelson 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            wrote to Ms. Palmer:
 
            
 
                    Robert Newell has continued to have problems 
 
                 with recurrent pain and stiffness in the shoulder 
 
                 which limits him in overhead lifting and overhead 
 
                 type work as well as lifting.  At this point in 
 
                 time, he has not reached maximum medical 
 
                 improvement and he is not ready for any partial 
 
                 impairment rating.  Most people with a rotator 
 
                 cuff strain have the symptoms resolve over the 
 
                 course of a several months up to a year or two.
 
            
 
            (exhibit 9)
 
            
 
                 Claimant was referred by Alexsis to John J. Dougherty, 
 
            M.D., for evaluation on December 11, 1990, with reference to 
 
            his left shoulder complaints.  Dr. Dougherty was unclear as 
 
            to the cause of claimant's shoulder complaints, 
 
            nevertheless, he injected his shoulder and saw him again on 
 
            December 26, 1990.  At this time, he recommended an 
 
            arthrogram.  This was performed on December 28, 1990, at 
 
            Marian Health Center.  The radiologist's impression was 
 
            rotator cuff tear (ex. 12).  
 
            
 
                 Dr. Dougherty saw claimant on January 4, 1991, and at 
 
            this time recommended tomograms.  He speculated that 
 
            claimant probably had a torn rotator cuff.  Tomograms taken 
 
            at St. Luke's on January 7, 1991, were negative.  
 
            Nevertheless, Dr. Dougherty recommended repair of the 
 
            rotator cuff (ex. 11).
 
            
 
                 On January 9, 1991, Ms. Palmer wrote to Dr. Samuelson.  
 
            He responded on January 29, 1991.  Dr. Samuelson stated that 
 
            claimant had a rotator cuff syndrome but would not rate him 
 
            as having any permanent partial impairment at this time nor 
 
            plan any surgical procedures at this time (ex. 51, p. 2).
 
            
 
                 Apparently there was some communication between Dr. 
 
            Dougherty, Alexsis and claimant's attorney.  By way of 
 
            clarification on February 15, 1991, Dr. Dougherty wrote to 
 
            claimant's attorney that, "I did not disagree with Dr. 
 
            Samuelson's findings that his rotator cuff problems came 
 
            from his employment."  He also stated that in view of the 
 
            fact that claimant's problem has persisted for a long period 
 
            of time, surgery may be indicated if he desires to have it 
 
            done. 
 
            
 
                 During the course of the above events, Alexsis, the 
 
            workers' compensation administrator for Aratex Services, was 
 
            handling claimant's workers' compensation case.  Benefits 
 
            were instituted on May 24, 1990.  On February 4, 1991, Ms. 
 
            Palmer, claims adjuster, notified claimant that in view of 
 
            recently received medical information, claimant's benefits 
 
            will be terminated 30 days after receipt of her letter or 
 
            upon return to work.  The reason cited for termination is 
 
            that doctors indicate that his current condition is not work 
 
            related.  Claimant was advised that he could submit any 
 
            evidence or documents disputing or contradicting the reasons 
 
            given for termination (ex. 41). 
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 On February 16, 1991, claimant's attorney sent Ms. 
 
            Palmer a copy of Dr. Dougherty's letter of February 15, 1991 
 
            (SEE: ex. 14).  Mr. Mahr, claimant's attorney, stated, "We 
 
            believe that your Auxier notice is totally inappropriate and 
 
            that Mr. Newell should remain on temporary total disability 
 
            until such time as he recuperates from this surgery."  (ex. 
 
            42).  On April 16, 1991, Ms. Palmer responded to claimant's 
 
            attorney and stated that, "At this time, we have reviewed 
 
            the above-captioned claim and are standing by our denial of 
 
            benefits beyond March 6, 1991."  (ex. 43).  
 
            
 
                 Since claimant's workers' compensation benefits and 
 
            medicals were cut off by Alexsis, claimant had no 
 
            alternative but to seek treatment at the Veteran's 
 
            Administration Medical Center in Sioux Falls, South Dakota.  
 
            He presented there on August 26, 1991, October 7, 1991 and 
 
            January 7, 1992, for treatment of left shoulder problems and 
 
            diabetes mellitus (ex. 15, pp. 1-7).  
 
            
 
                 Claimant's attorney referred him to Pat Luce, D.C., for 
 
            evaluation on January 13, 1992.  Claimant presented with 
 
            left shoulder complaints and after examination, Dr. Luce 
 
            found that these complaints were consistent with the 
 
            objective findings.  He stated that claimant has reached 
 
            maximum medical improvement but qualified that with an 
 
            opinion that he may need surgical intervention.  He gave him 
 
            a 10 percent permanent impairment rating to the left upper 
 
            extremity 5 percent the body as a whole (ex. 18).
 
            
 
                 Subsequently, claimant developed depression and 
 
            presented to the VAMC on March 17, 1992, with psychological 
 
            symptoms.  Diagnosis of adjustment disorder with depression 
 
            and dysthymia was made (ex. 20).
 
            
 
                 On March 24, 1992, claimant had an MRI examination of 
 
            the left shoulder at Bishop Clarkson Memorial Hospital in 
 
            Omaha, Nebraska.  The results revealed supraspinatus 
 
            tendonitis with evidence of tendon degeneration and a 
 
            partial tearing of the articulating surface of the 
 
            supraspinatus and a possibility of a small perforation 
 
            within the supraspinatus tendon (ex. 21).
 
            
 
                 Claimant returned to Dr. Dougherty on April 7, 1992, 
 
            requesting surgery for treatment of his left shoulder 
 
            problems.  Dr. Dougherty noted that he offered claimant 
 
            surgery in January of 1991, but he did not want it at that 
 
            time.  Based on this examination, Dr. Dougherty conjectured 
 
            that claimant sustained about 7 percent permanent impairment 
 
            of his left upper extremity.  He suggested exploration of 
 
            the shoulder and repair of the rotator cuff.  He also 
 
            recommended arthroscopy to evaluate the size of the tear and 
 
            to determine whether anything could be done 
 
            arthroscopically.  He noted, "If he were to undergo one or 
 
            both of these the impairment rating may change soon.  Also, 
 
            he would have to be re-evaluated after he reached his 
 
            maximum medical improvement following the surgery."  (ex. 
 
            22).
 
            
 
                 Claimant's attorney referred him to Horst G. Blume, 
 
            M.D., for evaluation on March 16, 1992, Dr. Blume sent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant to Bishop Clarkson Hospital for the MRI scan 
 
            referred to above.  On May 29, 1992, Dr. Blume reported 
 
            that, in his opinion, claimant has a permanent partial 
 
            impairment to the left upper extremity of 12 percent which 
 
            would convert to 7 percent to the body as a whole.  His 
 
            restrictions included an inability to use his left hand for 
 
            simple grasping, crawling, climbing ladders, reaching 
 
            overhead, lifting more than 20 pounds and carrying or 
 
            frequently lifting more than 10 pounds.  (exs. 24, 54).
 
            
 
                 At the request of defendant's attorney, Paul From, 
 
            M.D., reviewed claimant's records and opined that claimant's 
 
            depression is not the result of his rotator cuff tear and 
 
            his physical problems are basically due to his diabetes (ex. 
 
            55).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained an injury on March 19, 1990, arising out of and in 
 
            the course of his employment with employer.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 19, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The supreme court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 The greater weight of the uncontroverted medical 
 
            evidence is that claimant was asymptomatic as to left 
 
            shoulder pain prior to March 19, 1990.  At that time, he 
 
            initially experienced back and neck pain which resolved with 
 
            treatment.  As early as May 24, 1990, he manifested left 
 
            shoulder symptomatology (ex. 5).  Three treating physicians, 
 
            Dr. Burgfechtel, Dr. Samuelson and Dr. Dougherty relate 
 
            claimant's symptoms to his work activity.  Defendant has 
 
            presented no evidence to the contrary.  
 
            
 
                 Accordingly, claimant has met his burden of proof in 
 
            this regard and has shown by a preponderance of the evidence 
 
            that he sustained a left shoulder injury arising out of and 
 
            in the course of employment with employer.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  Claimant has the burden of proving by 
 
            a preponderance of the evidence that the injury of March 19, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 
 
            868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607, 
 
            613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167, 171 (Iowa 1960).  Expert medical evidence must 
 
            be considered with all other evidence introduced bearing on 
 
            the causal connection.  Burt, 73 N.W.2d at 738.  The opinion 
 
            of the experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight to be 
 
            given to such an opinion is for the finder of fact, and that 
 
            may be affected by the completeness of the premise given the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The supreme court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The total evidence in this case supports the finding 
 
            that claimant suffered a back, neck and left shoulder injury 
 
            arising out of and in the course of employment with 
 
            employer.  Claimant's back and neck symptoms resolved, 
 
            however, his left shoulder symptomatology has persisted.  
 
            Physicians who have treated and/or examined claimant have 
 
            causally connected claimant's impairment to his work 
 
            activity.  There is evidence that claimant has sustained 
 
            some form of permanent disability.  However, at this time, a 
 
            determination of the extent of claimant's permanent 
 
            disability would be premature.  Claimant has not returned to 
 
            any form of gainful employment since May 24, 1990.  
 
            Claimant, at the present time is not medically capable of 
 
            returning to his prior work or substantially similar 
 
            employment and he has not achieved maximum medical recovery.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Defendant paid claimant healing period benefits from 
 
            May 24, 1990 through March 6, 1991.  Defendant shall pay 
 
            claimant a running healing period award at the rate of 
 
            $320.43 per week until the requirements of section 85.34(1) 
 
            are met.
 
            
 
                 Claimant shall promptly undergo appropriate surgical 
 
            treatment as outlined by Dr. John Dougherty in exhibit 22.  
 
            The cost of such treatment shall be borne by defendant under 
 
            the terms of Iowa Code section 85.27.  
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to penalty benefits under Iowa Code section 86.13 
 
            since employer terminated claimant's benefits on March 6, 
 
            1991.  
 
            
 
                 Iowa Code section 86.13 provides in pertinent part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 In Auxier v. Woodward State Hospital School, 266 N.W.2d 
 
            139 (Iowa 1978), the Iowa Supreme Court declared a 
 
            claimant's interest in workers' compensation a property 
 
            right which cannot be taken without due process of law.  
 
            Auxier also set out minimum requirements to achieve due 
 
            process for notice of termination in cases other than those 
 
            in which the employee has returned to work.  Lawyer and 
 
            Higgs, Iowa Workers' Compensation--Law and Practice, (2d 
 
            ed.) section, page 141.
 
            
 
                 On February 4, 1991, Alexsis, Aratex Services workers' 
 
            compensation administrator, sent claimant an Auxier notice 
 
            stating that his benefits would terminate in 30 days because 
 
            doctors indicate that his current condition was not work 
 
            related (ex. 41).  Claimant was given an opportunity to 
 
            submit evidence disputing Alexsis' contentions.  On February 
 
            16, 1991, claimant's attorney requested reconsideration 
 
            based on Dr. Dougherty's letter of February 15, 1991, which 
 
            stated that claimant's shoulder injuries are related to his 
 
            employment (ex. 42).  On April 16, 1991, Alexsis responded 
 
            to claimant's attorney stating that, "At this time, we have 
 
            reviewed the above-captioned claim and are standing by our 
 
            denial of benefits beyond March 6, 1991."  (ex. 43).
 
            
 
                 It appears from the record that Alexsis either 
 
            misconstrued or ignored Dr. Dougherty's February 15, 1991 
 
            letter in which he stated in part, "I did not disagree with 
 
            Dr. Samuelson's findings that his rotator cuff problems came 
 
            from his employment."  (ex. 14).  The only medical records 
 
            available to Alexsis at the time they sent the Auxier notice 
 
            were those of Dr. Burgfechtel, Dr. Samuelson and Dr. 
 
            Dougherty.  The undersigned can find no reference in the 
 
            medical evidence through February 4, 1991, which indicates 
 
            that claimant's left shoulder problems were not work 
 
            related.  Therefore, it is concluded that claimant's healing 
 
            period benefits were terminated without reasonable or 
 
            probable cause or excuse and a penalty in the amount of 50 
 
            percent of benefits unreasonably denied is hereby awarded to 
 
            claimant.  Thus, claimant is entitled to penalty benefits 
 
            for the period from May 24, 1990 until such benefits are 
 
            reinstituted.  
 
            
 
                 The next issue to be determined is whether the fees 
 
            charged for medical services or supplies by Dr. Blume are 
 
            fair and reasonable.  Defendant's agreed to pay Dr. Blume 
 
            $500 for his services.  In addition, defendant received a 
 
            bill for $200 for his report.  
 
            
 
                 Dr. Blume examined claimant on March 16, 1992, for 
 
            purposes of providing an independent medical examination 
 
            under Iowa Code section 85.39.  Pursuant to his examination, 
 
            Dr. Blume referred claimant to Bishop Clarkson Memorial 
 
            Hospital for an MRI evaluation.  The charges for the 
 
            hospital evaluation totaled $470.  In addition, Dr. Blume 
 
            submitted a bill for $200.  
 
            
 
                 Witnesses called to testify only to an expert opinion 
 
            shall receive compensation to be fixed by the deputy 
 
            commissioner not to exceed $150 per day while so employed.  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Iowa Code section 622.72 and Miller v. Lauridsen Foods, 
 
            Inc., file numbers 801804 & 837426 (App. Dec. 1992).  
 
            Accordingly, defendant shall pay to claimant $150 as costs 
 
            for Dr. Blume's report dated May 29, 1992, found at exhibit 
 
            24.  
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to vocational rehabilitation program benefits in 
 
            accordance with Iowa Code section 85.70.
 
            
 
                 In order to be eligible for 85.70 benefits, claimant 
 
            must demonstrate that his injury resulted in some degree of 
 
            permanent disability.  Since a determination regarding 
 
            permanent disability is premature at this time, awarding of 
 
            vocational rehabilitation benefits is also premature.  
 
            Therefore, such benefits are denied at this time.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay claimant a running healing period 
 
            award commencing March 6, 1991, and continuing until the 
 
            requirements of Iowa Code section 85.34(1) are met, at the 
 
            rate of three hundred twenty and 43/100 dollars ($320.43) 
 
            per week.
 
            
 
                 That claimant promptly commence surgical treatment as 
 
            proposed by Dr. John Dougherty in exhibit 22.
 
            
 
                 That defendant pay the costs of surgical exploration 
 
            and repair or arthroscopic evaluation.
 
            
 
                 That defendant pay a penalty in the amount of fifty 
 
            (50) percent of healing period benefits for wrongfully 
 
            suspending such benefits commencing March 6, 1991, and 
 
            continuing until such benefits are paid.  Iowa Code section 
 
            86.13.
 
            
 
                 That defendant pay accrued weekly benefits in a lump 
 
            sum.
 
            
 
                 That defendant pay interest on weekly benefits awarded 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 That defendant pay the costs of this action pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 That defendant pay to claimant one hundred fifty 
 
            dollars ($150) as costs for Dr. Blume's report dated March 
 
            16, 1992.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis J. Mahr
 
            Attorney at Law
 
            318 Insurance Centre
 
            507 7th St
 
            Sioux City, Ia  51101
 
            
 
            Mr. Fred L. Morris
 
            Mr. Stephen Spencer
 
            Attorneys at Law
 
            PO Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                             1802 4000 2907
 
                                             Filed September 10, 1992
 
                                             Jean M. Ingrassia
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT GLENN NEWELL,     
 
                      
 
                 Claimant,                      File No. 951662
 
                      
 
            vs.       
 
                                            A R B I T R A T I O N
 
            ARATEX SERVICES, INC.,   
 
                                               D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,        
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            1802
 
            Claimant awarded a running period of healing period benefits 
 
            from March 6, 1991 (the day he was terminated from benefits) 
 
            until the criteria for ending such benefits under Iowa Code 
 
            section 85.34(1) occurs.  
 
            Claimant's left shoulder problems found to arise out of and 
 
            in the course of employment with employer.  Employer refused 
 
            to pay for rotator cuff repair and terminated claimant's 
 
            healing period benefits despite overwhelming medical 
 
            evidence indicating that claimant needed surgery.
 
            
 
            4000
 
            Claimant awarded 50 percent penalty benefits commencing 
 
            March 6, 1991 and continuing until benefits are 
 
            reinstituted.  
 
            Defendant terminated claimant's healing period benefits 
 
            allegedly based on medical opinion that claimant's injury 
 
            was not work related.  Claimant submitted evidence to the 
 
            contrary but defendant refused to reinstitute benefits.  
 
            Termination of benefits was found to be unreasonable and 
 
            without probable cause.
 
            
 
            2907
 
            The cost of an IME report limited to $150 pursuant to Iowa 
 
            Code section 622.72.  Miller v. Lauridsen Foods, Inc., file 
 
            numbers 801804 & 837426 (App. Dec. 1992).  
 
            
 
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                         :
 
         JACKIE CARPENTER,               :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :         File Nos. 972644
 
         IMI CORNELIUS f/k/a SCHNEIDER   :                   951732
 
         METAL MFG. CO.,                 :
 
                                         :      A R B I T R A T I O N
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         SENTRY INSURANCE,               :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ______________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a consolidated proceeding in arbitration for 
 
         workers' compensation claims brought by Jackie Carpenter, 
 
         claimant, against IMI Cornelius, employer, hereinafter referred 
 
         to as IMI, as insured by Sentry Insurance Company for an alleged 
 
         injury on August 3, 1988 and as self-insured for an alleged 
 
         injury on October 9, 1990.  On March 10, 1994, a hearing was held 
 
         on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.  Apparently, there is no 
 
         dispute as to IMI's insurance status at the time of these 
 
         injuries.
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.
 
         
 
              According to the hearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1.  IMI as insured by Sentry admitted that on August 3, 1988 
 
         claimant received an injury arising out of and in the course of 
 
         employment with IMI.
 
         
 
              2.  Additional temporary total or healing period benefits 
 
         beyond what has already been paid are not being sought in this 
 
         proceeding.
 
         
 
              3.  If permanent partial disability benefits are awarded as 
 
         a result of the August 3, 1988 injury, they shall begin as of 
 
         January 29, 1990.  If permanent partial disability benefits are 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         awarded as a result of the October 9, 1990 injury, they shall 
 
         begin as of September 23, 1991.
 
         
 
              4.  At the time of the injury on August 3, 1988 claimant's 
 
         gross rate of weekly compensation was $334.00; she was married; 
 
         and she was entitled to four exemptions.  Therefore, claimant's 
 
         weekly rate of compensation is $222.61 according to the 
 
         Industrial Commissioner's published rate booklet for this injury.
 
         
 
              5.  At the time of the injury on October 9, 1990, claimant's 
 
         gross rate of weekly compensation was $350.00; she was married; 
 
         and she was entitled to four exemptions.  Therefore, claimant's 
 
         weekly rate of compensation is $233.42 according to the 
 
         Industrial Commissioner's published rate booklet for this injury.
 
         
 
              6.  Entitlement to medical benefits is not in dispute.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding was the extent of claimant's entitlement to 
 
         permanent disability benefits and penalty benefits, if any. 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants placed claimant's credibility at issue during cross- 
 
         examination as to the nature and extent of the injury and 
 
         disability.  From her demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              Claimant has worked for IMI, a manufacturer of ice machines, 
 
         since 1980 and continues to do so at the present time.  Prior to 
 
         the second alleged injury, claimant was assigned to assembly and 
 
         warehouse work.  This work routinely required heavy lifting, 
 
         pushing and pulling.  After the second alleged injury, she was 
 
         assigned to retrofit in which already assembled machines are 
 
         modified to fit specific customer orders.
 
         
 
              On or about August 3, 1988, claimant injured her left 
 
         shoulder while lifting a heavy compressor.  Claimant at the time 
 
         experienced a sudden sharp pain.  Chronic shoulder pain and 
 
         numbness continued thereafter.  Claimant was primarily treated by 
 
         physicians at the Park Clinic--K. B. Washburn, M.D., an 
 
         occupational medicine specialist; M. W. Crane, M.D., an 
 
         orthopedic surgeon; and, A. J. Wolbrink, M.D., an orthopedic 
 
         surgeon.  Claimant's condition was eventually diagnosed as 
 
         tendonitis and impingement syndrome.  After unsuccessful 
 
         conservative therapy, on May 3, 1989 claimant underwent 
 
         arthroscopic surgery in which there was excision of the superior 
 
         labrum and the bursa in the left shoulder.  Claimant then 
 
         returned to her assembly work at IMI but continued to experience 
 
         shoulder problems.  No permanent work restrictions were imposed 
 
         upon claimant's return to work but Dr. Wolbrink, her treating 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         physician at the time, stated that she would continue to 
 
         experience symptoms with certain heavy activity.
 
         
 
              On or about October 9, 1990, claimant suffered another 
 
         injury to her left shoulder which arose out of and in the course 
 
         of her employment at IMI.  She again experienced sudden pain 
 
         while dragging a heavy metal plate.  She explained that this was 
 
         more than her usual pain from her prior injury.  Claimant 
 
         returned to Dr. Wolbrink for treatment and then was referred to 
 
         Rodney Johnson, M.D., another orthopedic surgeon.  As before, 
 
         conservative therapy failed to improve her symptoms and claimant 
 
         underwent a second surgery by Dr. Johnson to further decompress 
 
         the shoulder impingement.  In this surgery, components in the 
 
         shoulder were further rearranged to allow for greater movement of 
 
         the shoulder tendons.
 
         
 
              Based upon the views of Dr. Johnson, the treating physician, 
 
         the injury of October 9, 1990 was an aggravation of the prior 
 
         injury but this aggravation significantly worsened the condition.  
 
         Claimant then returned to work but this time on a permanent 
 
         restriction to light duty upon the recommendation of physicians 
 
         at the Mayo Clinic.  Claimant is now permanently restricted from 
 
         lifting over 20 pounds; pushing or pulling over 30 pounds; 
 
         anything more than occasional kneeling, squatting, crawling or 
 
         bending; and, any twisting with extended arms or working 
 
         overhead.  Claimant was then assigned to the retrofit department 
 
         where she now primarily trains fellow employees.  Dr. Wolbrink 
 
         has opined that the worsening of claimant's condition after his 
 
         surgery may be the result of cumulative trauma from her work 
 
         activity rather than any one specific event.  Given claimant's 
 
         account of a sudden increase in pain level after a single 
 
         incident, such a theory is rejected. 
 
         
 
              Both the injury of August 3, 1988 and October 9, 1990 are 
 
         found to be a significant, permanent injuries causing impairment 
 
         to the body as a whole, and not an injury or impairment to the 
 
         arm.  Both Dr. Wolbrink and Dr. Johnson have rated the impairment 
 
         from each injury to both the upper extremity and to the body as a 
 
         whole.  However, a close review of their records indicate that 
 
         the only mention of a loss of use was to the operation of the 
 
         shoulder subsequent to the injury and surgery, not to the 
 
         function or use of the arm structure itself.  With reference to 
 
         the extent of impairment, an exact percentage is unnecessary in 
 
         an industrial disability case.  More significant is the work 
 
         restrictions following each injury and their effect upon her 
 
         ability to work.
 
         
 
              Claimant's medical condition before the work injury of 
 
         August 3, 1988 was excellent and she had no functional 
 
         impairments or ascertainable disabilities.  Claimant was able to 
 
         fully perform physical tasks involving heavy lifting and 
 
         repetitive lifting, bending, twisting or stooping.  Claimant was 
 
         34 years of age at the time of this injury.  Claimant has a high 
 
         school education.  Claimant's past employment consists of 
 
         waitress work, cashier in a department store, packer/shipper and 
 
         managing a gas station.  Claimant has some potential for 
 
         vocational rehabilitation given her age and experience but such 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         was unnecessary as she returned to the same job at IMI because no 
 
         permanent restrictions against heavy work were imposed.  However, 
 
         she did continued to experience chronic pain and swelling with 
 
         activity following her return to work which lasted up to the 
 
         second injury herein.
 
         
 
              From examination of all of the factors of industrial 
 
         disability, it is found that the work injury of August 3, 1988 
 
         was a cause of only a very mild five percent loss of earning 
 
         capacity.
 
         
 
              Claimant's medical condition before the work injury of 
 
         October 9, 1990 was certainly not excellent given her chronic 
 
         pain but she had no formal work restrictions and she was able to 
 
         continue in assembly work at IMI even though at times such work 
 
         was heavy.  Following the injury of October 9, 1990, claimant's 
 
         condition dramatically worsened.  Claimant is no longer able to 
 
         return to her assembly job or any other position which requires 
 
         heavy work, bending, twisting or stooping.  Claimant's past 
 
         employment consisted of waitress work, cashier in a department 
 
         store, packer/shipper and managing a gas station. Claimant can 
 
         still return to some of these positions but they would be low 
 
         paid service jobs.  Although she is a high school graduate, she 
 
         is now 40 and has only limited potential for vocational 
 
         rehabilitation especially now with her permanent restrictions 
 
         against heavy work.  IMI has accommodated for her disability and 
 
         she has not suffered a loss of earnings.  However, she is no 
 
         longer able to be promoted to many higher paid jobs at IMI due to 
 
         her restrictions.  On the other hand, claimant is relatively 
 
         secure in her union job with high seniority.
 
         
 
              From examination of all of the factors of industrial 
 
         disability, it is found that the second work injury of October 9, 
 
         1990 was a cause of only an additional 15 percent loss of earning 
 
         capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
                I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury arising out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury. See 
 
         generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 
 
         (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments. A work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
         620, 106 N.W.2d 591 (1961) and cases cited therein.
 
         
 
              It is not necessary that claimant prove her disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in gradual 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincided with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then used by the Court to determine rate and the 
 
         timeliness of claimant's claim under Iowa Code section 85.26 and 
 
         notice under Iowa Code section 85.23.
 
         
 
              In the case sub judice, claimant demonstrated two traumatic 
 
         events constituting compensable work injuries.  Evidence suggests 
 
         possible application of the cumulative trauma rule for the second 
 
         injury.  However, even if true, such a work injury pathology 
 
         would not change the injury date and consequently IMI as self- 
 
         insured would remain liable for such an injury.
 
         
 
              II. The evidence presented herein demonstrated that the 
 
         injury was not confined to the leg.  This work injury was found 
 
         to be an injury and permanent impairment to the body as a whole 
 
         because it involves a loss or loss of use of more portions of the 
 
         human body than those specifically scheduled in Iowa Code 
 
         sections 85.34(2)(a-t).  See Lauhoff Grain v. McIntosh, 395 
 
         N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348 (1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 
 
         N.W.2d 569 (1943); Nazarenus v. Oscar Mayer & Co., II Iowa Indus. 
 
         Comm'r Rep. 281 (Appeal December 1982); Godwin v. Hicklin, II 
 
         Iowa Indus. Comm'r Rep. 170 (Appeal Decision 1981). 
 
         
 
              As the claimant has shown that the work injury was a cause a 
 
         permanent physical impairment or limitation upon activity 
 
         involving the body as a whole, the degree of permanent disability 
 
         must be measured pursuant to Iowa Code section 85.34(2)(u).  
 
         However, unlike scheduled member disabilities, the degree of 
 
         disability under this provision is not measured solely by the 
 
         extent of a functional impairment or loss of use of a body 
 
         member.  A disability to the body as a whole or an "industrial 
 
         disability" is a loss of earning capacity resulting from the work 
 
         injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 
 
         N.W. 899 (1935).  A physical impairment or restriction on work 
 
         activity may or may not result in such a loss of earning 
 
         capacity.  Examination of several factors determines the extent 
 
         to which a work injury and a resulting medical condition caused 
 
         an industrial disability.  These factors include the employee's 
 
         medical condition prior to the injury, immediately after the 
 
         injury and presently; the situs of the injury, its severity and 
 
         the length of healing period; the work experience of the employee 
 
         prior to the injury, after the injury and potential for 
 
         rehabilitation; the employee's qualifications intellectually, 
 
         emotionally and physically; earnings prior and subsequent to the 
 
         injury; age; education; motivation; functional impairment as a 
 
         result of the injury; and inability because of the injury to 
 
         engage in employment for which the employee is fitted.  Loss of 
 
         earnings caused by a job transfer for reasons related to the 
 
         injury is also relevant.  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              A showing that claimant had no loss of actual earnings does 
 
         not preclude a finding of industrial disability.  See Michael v. 
 
         Harrison County, 34 Bien Rep., Ia Ind. Comm'r 218, 220 (Appeal 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         Decision 1979); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) 
 
         only held that continued employment with no loss of earnings is 
 
         significant evidence that should not be overlooked in measuring 
 
         loss of earning capacity.
 
         
 
              In the case sub judice, it was found that claimant suffered 
 
         a five percent loss of her earning capacity as a result of the 
 
         August 3, 1988 work injury.  Such a finding entitles claimant to 
 
         25 weeks of permanent partial disability benefits as a matter of 
 
         law under Iowa Code section 85.34(2)(u) which is five percent of 
 
         500 weeks, the maximum allowable number of weeks for an injury to 
 
         the body as a whole in that subsection.  Claimant has already 
 
         been paid 12.5 weeks toward this award.  IMI, as insured by 
 
         Sentry, will be ordered to pay the balance.
 
         
 
              It was also found that claimant suffered an additional 15 
 
         percent loss of her earning capacity as a result of the October 
 
         9, 1990 work injury.  Such a finding entitles claimant to an 
 
         additional 75 weeks of permanent partial disability benefits as a 
 
         matter of law under Iowa Code section 85.34(2)(u) which is 15 
 
         percent of 500 weeks, the maximum allowable number of weeks for 
 
         an injury to the body as a whole in that subsection.  Claimant 
 
         has been paid 17.5 weeks toward this award.  IMI, as 
 
         self-insured, will be ordered to pay the balance due.
 
         
 
              II.  Claimant seeks additional weekly benefits under Iowa 
 
         Code section 86.13, unnumbered last paragraph.  That provision 
 
         states that if a delay in commencement or termination of benefits 
 
         occurs without reasonable or probable cause or excuse, the 
 
         industrial commissioner shall award extra weekly benefits in an 
 
         amount not to exceed 50 percent of the amount of benefits that 
 
         were unreasonably delayed or denied.  Defendants may deny or 
 
         delay the payment of benefits only when the claim is fairly 
 
         debatable.  Seydel v. U of I Physical Plant, Appeal Decision, 
 
         November 1, 1989.  However, not only bad faith but also negligent 
 
         conduct can invoke the penalty provisions of section 86.13.  
 
         Boylan v. American Motorists Ins. Co., 489 N.W.2d 742, 744 (Iowa 
 
         1992).
 
         
 
              In the case before us, claimant has neither shown bad faith 
 
         or negligent conduct.  It is not unreasonable to pay just the 
 
         impairment rating to the arm in this case given the status of the 
 
         agency precedents and claimant's return to work without loss of 
 
         earnings.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant IMI as insured by Sentry shall pay to claimant 
 
         twenty-five (25) weeks of permanent partial disability benefits 
 
         at a rate of two hundred twenty-two and 61/l00 dollars ($222.61) 
 
         per week from January 29, 1990.  Credit shall be given for the 
 
         prior payment of twelve point five (12.5) weeks.
 
         
 
              2.  Defendant IMI as self-insured shall pay to claimant 
 
         seventy-five (75) weeks of permanent partial disability benefits 
 
         at a rate of two hundred thirty-three and 42/l00 dollars 
 
         ($233.42) per week from September 23, 1991.  Credit shall be 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         given for the prior payment of seventeen (17) weeks.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              5.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              6.  Defendant as insured by Sentry and as self-insured each 
 
         shall pay 50 percent of the costs of this action pursuant to rule 
 
         343 IAC 4.33, including reimbursement to claimant for any filing 
 
         fee paid in this matter.
 
         
 
              7.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of April, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey, III
 
         Attorney at Law
 
         P O Box 679
 
         214 North Adams
 
         Mason City, Iowa  50401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street  Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         P O Box 9130
 
         405 6th Ave  STE 700
 
         Des Moines  IA  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed April 14, 1994
 
                                             LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            JACKIE CARPENTER,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File Nos. 972644
 
            IMI CORNELIUS f/k/a SCHNEIDER                     951732
 
            METAL MFG. CO.,       
 
                                               A R B I T R A T I O N
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            SENTRY INSURANCE,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.