before the iowa industrial commissioner
 
         _________________________________________________________________
 
                     :
 
         ERNEST E. WISSLER,    :
 
                     :
 
              Claimant,   :        File No. 955181
 
                     :
 
         vs.         :          A P P E A L
 
                     :
 
         CITY OF FREMONT, IOWA,     :        D E C I S I O N
 
                     :
 
              Employer,   :
 
              Self-Insured,    :
 
              Defendant.       :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 9, 1992 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         On appeal, defendant urges as an issue whether claimant's prior 
 
         disability should be apportioned from his award.  When an award 
 
         of permanent total disability is made, apportionment for a prior 
 
         disability is not appropriate.  Tesch v. Sieh Farm Drainage Co., 
 
         Appeal Decision, March 1992.
 
         Defendant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of February, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa 52577
 
         
 
         Mr. John E. Swanson
 
         Attorney at Law
 
         8th Floor, Fleming Bldg.
 
         218 Sixth Avenue
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1806
 
            Filed February 22, 1993
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            ERNEST E. WISSLER,    :
 
                        :
 
                 Claimant,   :        File No. 955181
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            CITY OF FREMONT, IOWA,     :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            
 
            1806
 
            Held on appeal that apportionment for prior disability is 
 
            not appropriate when an award of permanent total disability 
 
            is made.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ERNEST E. WISSLER,            :
 
                                          :        File No. 955181
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            CITY OF FREMONT, IOWA,        :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ernest 
 
            E. Wissler, claimant, against City of Fremont, Iowa, 
 
            employer, a self-insured defendant, for workers' compensa
 
            tion benefits as a result of an alleged injury on July 13, 
 
            1990.  On May 5, 1992, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On July 13, 1990, claimant received an injury aris
 
            ing out of and in the course of employment with City of 
 
            Fremont, Iowa.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits from July 13, 1990 and defendant agrees that 
 
            he has not worked in any capacity since that time.
 
            
 
                 3.  The injury is a cause of a permanent industrial 
 
            disability to the body as a whole, the extent of which is in 
 
            dispute.
 
            
 
                 4.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $330.46.  She was married and enti
 
            tled to 2 exemptions.  Therefore, claimant's weekly rate of 
 
            compensation is $212.80 according to the Industrial 
 
            Commissioner's published rate booklet for FY 91 (the stipu
 
            lated rate in the prehearing report was incorrect).
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendant. 
 
            
 
                                      ISSUE
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent industrial disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant worked for Fremont from November 1989 until 
 
            the work injury herein.  Claimant was the town superinten
 
            dent.  His duties consisted of maintenance and care of the 
 
            city water, sewer and lagoon systems, reading meters, dog 
 
            control and general handyman work.  At times the job 
 
            required heavy shoveling and lifting.
 
            
 
                 Claimant injured his low back on July 13, 1990 when he 
 
            slipped on a wet concrete floor in the city water plant and 
 
            twisted his back.  He did not fall.  However, after twist
 
            ing, he felt the immediate onset of low back pain.  Claimant 
 
            initially received treatment from a chiropractor for a few 
 
            weeks and then he was referred to Tobin Jacks, M.D.  Dr. 
 
            Jacks felt that claimant only suffered a ligament strain and 
 
            that he would soon return to normal.  However, when the pain 
 
            continued through November, he referred claimant to an 
 
            orthopedic surgeon, Donald Berg, M.D.  Dr. Berg treated 
 
            claimant with physical therapy and medication over the next 
 
            few weeks.  He stated that claimant had aggravated a 
 
            pre-existing degenerative condition of the lower spine.  He 
 
            stated that claimant would require six months of healing and 
 
            then, if symptoms persisted, he would suffer a 2 percent 
 
            permanent partial impairment to the body as a whole.  He 
 
            stated that claimant will never be able to return to heavy 
 
            physical labor and that he should not lift over 20 pounds or 
 
            frequently bend or twist.  Dr. Berg referred claimant for a 
 
            second evaluation to William Boulden, M.D., another 
 
            orthoepic surgeon.  Dr. Boulden again treated claimant with 
 
            physical therapy and work hardening and also arrived at the 
 
            conclusion that claimant should not return to heavy work and 
 
            must be restricted in lifting and repetitive activity.  Dr. 
 
            Boulden rated claimant's impairment at 7 percent and stated 
 
            that this was all due to the work injury as claimant 
 
            reported no back problems before July 13, 1990.
 
            
 
                 As recognized by all physicians in this case, 
 
            claimant's low back condition is complicated by old injuries 
 
            to his left hip and head.  These old injuries were the 
 
            result of a serious motorcycle accident in 1969 in which 
 
            claimant suffered multiple fractures to his arm, leg, hip 
 
            and head.  He suffered what was estimated then to be a 60 
 
            percent disability and inability to return to heavy work.  
 
            He was unconscious for six weeks after the accident.  As 
 
            first noticed by the chiropractor after the injury and later 
 
            verified by the orthopedic surgeons, the old frozen hip from 
 
            the 1969 injury works in combination with the work injury in 
 
            July 1990 causing excessive strain to the back after any
 
            thing but very light duty.  Dr. Boulden was the only physi
 
            cian to attempt to separate the effects of the two injuries 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and it was clear that most of claimant's current restric
 
            tions were due to the new back injury rather than the old 
 
            hip injury.  
 
            
 
                 Claimant had little or no industrial disability prior 
 
            to July 1990.  He returned to work successfully for over 20 
 
            years after the 1969 accident without physician imposed 
 
            restrictions.  Many of these jobs required occasional heavy 
 
            labor and prolonged sitting as a truck driver.
 
            
 
                 The work injury of July 13, 1990 was a cause of a sig
 
            nificant permanent partial physical impairment to the body 
 
            as a whole.  More importantly from an industrial disability 
 
            standpoint, as a result of the injury herein, claimant is 
 
            physically unable to perform work activities consisting of 
 
            lifting or carrying over 30 pounds and no prolonged sitting 
 
            or standing for more than 45 minutes without being able to 
 
            change positions.  These are the most recent restrictions 
 
            imposed by Dr. Boulden.
 
            
 
                 Claimant has an extensive and multifaceted employment 
 
            history.  He has been a farmhand; gas station mechanic; body 
 
            ship worker; route delivery of bread; beer warehouseman; 
 
            warehouse foreman; advertising; sales promotion for a 
 
            tobacco company; motorcycle mechanic; manager of the motor
 
            cycle department of a car dealership; gas station operator; 
 
            service manager and ship foreman at a car dealership; pro
 
            duction worker; and over-the-road trucker hauling cars from 
 
            Florida.  His transferable skills are extensive.  Many of 
 
            the more mentally demanding jobs occurred after the 1969 
 
            accident.  Claimant was able to perform these jobs with only 
 
            a tenth grade education.  Almost all of the jobs claimant 
 
            had held in the past required heavy physical labor, the type 
 
            of work claimant can no longer perform.
 
            
 
                 Claimant is 55 years of age and the evidence did not 
 
            reveal any retirement plans at the time of injury herein.  A 
 
            vocational counselor was retained by defendant to attempt to 
 
            locate suitable work for him.  After six months the coun
 
            selor was only able to locate a possible part-time job as an 
 
            assistant activity director for a nursing home. The salary 
 
            of this job was not stated.  The counselor complained that 
 
            claimant and his wife were not motivated to return to work 
 
            and did poorly in the interview for the activity director 
 
            job due to lack of aggressiveness.
 
            
 
                 However, the most recent evaluation of claimant's men
 
            tal and physical condition clearly demonstrates that 
 
            claimant is incapable of any return to the work force.  Marc 
 
            Hines, M.D., reports on March 25, 1992 that claimant's past 
 
            head injuries are now resulting in psychosensory symptoms 
 
            from illusions, episodic macropsia, speech and word finding 
 
            difficulties, speech confusion and memory gaps.  Claimant 
 
            has staring spells on a daily basis.  He has chronic anxiety 
 
            and perplexity.  Dr. Hines states that these neurological 
 
            symptoms, combined with the physical disability from the 
 
            July 13, 1990 work injury, prevents him from being able to 
 
            work.  This opinion as to the combined mental problem and 
 
            physical effects from the work injury is uncontroverted and 
 
            found to be correct.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Consequently, the work injury of July 13, 1990 is a 
 
            cause of a total or 100 percent loss of earning capacity.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence the extent of weekly benefits for permanent disability 
 
            to which claimant is entitled.  As the claimant has shown 
 
            that the work injury was a cause of 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 disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  Examination of several factors deter
 
            mines the extent to which a work injury and a resulting med
 
            ical condition caused an industrial disability.  These fac
 
            tors 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).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a total or 100 percent loss of his earning capacity as 
 
            a result of the work injury.  Such a finding entitles 
 
            claimant to permanent total disability benefits as a matter 
 
            of law under Iowa Code section 85.34(3).  These weekly bene
 
            fits shall begin with the date of the work injury and shall 
 
            extend for an indefinite period into the future and may last 
 
            for life absent a change in condition.  
 
            
 
                 Although a considerable portion of this disability is 
 
            due to the combined effect of the work injury and non-work 
 
            related 1969 accident, apportionment of disability as envi
 
            sioned in Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
            (Iowa 1984) is not appropriate or possible in a permanent 
 
            total disability case because the benefits are not payable 
 
            for a definite time period under Iowa Code section 85.34(2) 
 
            but are paid to claimant indefinitely during the period of 
 
            his disability under Iowa Code section 85.34(3).  The July 
 
            1990 injury was the proverbial "straw that broke the camel's 
 
            back" and permanent total disability benefits was awarded 
 
            accordingly.  Loftus v. Waterloo Comm. School Dist., Case 
 
            No. 777678, Arbitration Decision Filed March 30, 1989; Brown 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            v. Nissen Corp., Arbitration Decision Filed June 29, 1988.
 
            
 
                 Additionally, prior existing impairment, if it were 
 
            shown, does not mandate a finding of loss of earning capac
 
            ity when there has been no lost earnings or employment for 
 
            almost 20 years prior to the injury.  See Bearce v. FMC 
 
            Corp, 465 N.W.2d 531 (Iowa 1991)
 
            
 
                 Finally, when claimant establishes a causal connection 
 
            between the claimed disability and the work injury, the 
 
            claimant does not have the additional burden to establish 
 
            the lack of a preexisting disability.  After establishing a 
 
            prima facia case for permanent disability, the undersigned 
 
            believes that the burden of persuasion shifts to defendant 
 
            to establish such a preexisting disability for purposes of 
 
            apportionment.  The plaintiff in a personal injury case is 
 
            not normally charged with a burden of proof as to the actual 
 
            apportionment of damages.  Any burden of that nature should 
 
            be assumed by the defendant, since the defendant is the 
 
            party standing to gain by litigating the apportionment 
 
            issue.  2 Damages in Tort Actions, 15.34(1)(a); Wonder Life 
 
            Company v. Liddy, 207 N.W.2d 27 (Iowa 1973).  If no appor
 
            tionment can be made, the defendant is responsible for the 
 
            entire damage.  Becker v. D & E Distributing Co. 247 N.W.2d 
 
            727, 731 (Iowa 1976).
 
            
 
                                          ORDER
 
            
 
                 1.  Defendant shall pay to claimant permanent total 
 
            disability benefits at a rate of two hundred twelve and 
 
            80/l00 dollars ($212.80) per week from July 13, 1990, for an 
 
            indefinite period of time during the period of his 
 
            disability.
 
            
 
                 2.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 3.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
                                    
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                          
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. John E. Swanson
 
            Attorney at Law
 
            8th Floor Felming Building
 
            218 6th Avenue
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  Filed June 9, 1992
 
                                                  LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ERNEST E. WISSLER,            :
 
                                          :        File No. 955181
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            CITY OF FREMONT, IOWA,        :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
 
 
             Non-precedential, extent of disability case.
 
                      
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAELYN J. WOMACK,             :
 
                                          :         File No. 955356
 
                 Claimant,                :
 
                                          :         D E C I S I O N
 
            vs.                           :
 
                                          :        A N D   O R D E R
 
            LAMONT LIMITED,               :
 
                                          :        A P P R O V I N G
 
                 Employer,                :
 
                                          :       S E T T L E M E N T
 
            and                           :
 
                                          :               B Y
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY,                     :     A C Q U I E S C E N C E
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Raelyn J. Womack filed a petition in arbitration 
 
            against Lamont Limited and United States Fidelity and 
 
            Guaranty on April 19, 1991.  She claims to have sustained a 
 
            back injury in a work-related fall on July 5, 1990, and 
 
            asserts entitlement to workers' compensation benefits.  
 
            Defendants duly filed answer denying that claimant sustained 
 
            an injury arising out of and in the course of employment.
 
            
 
                 On May 8, 1991, claimant filed an Application for 
 
            Alternate Medical Care.  Defendants deny that relief is 
 
            appropriate.
 
            
 
                 Following prehearing conference, the parties agreed on 
 
            January 8, 1992, to submit that dispute (but no other) 
 
            specifically to the undersigned deputy industrial 
 
            commissioner for binding arbitration pursuant to rule 343 
 
            IAC 4.42.
 
            
 
                 In a telephone conference hearing held on February 3, 
 
            1992, the undersigned advised counsel that he believed no 
 
            justiciable issue had been presented, since defendants could 
 
            not be ordered to pay or provide any benefits absent 
 
            adjudication or agreement that claimant had sustained a 
 
            compensable injury.  On February 6, 1992, defendants 
 
            accordingly amended their answer to admit an injury arising 
 
            out of and in the course of employment.
 
            
 
                 The undersigned conducted an informal prehearing 
 
            conference with respective counsel on March 26, 1992.  
 
            Because the rule governing binding arbitration is silent as 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            to the manner in which hearing is to be conducted, the 
 
            parties were given three options:  (1) conduct the hearing 
 
            by telephone conference; (2) conduct an in-person hearing in 
 
            Des Moines; or, (3) conduct an in-person hearing in the 
 
            appropriate venue (here, Burlington) on the next occasion 
 
            this deputy happened to be scheduled for that venue.  The 
 
            parties agreed to conduct the hearing by telephone 
 
            conference.
 
            
 
                 That hearing was held on April 20, 1992.  Claimant was 
 
            represented by Susan Diehl, defendants by Mark Woollums.  
 
            Claimant's exhibits 1 through 3 and defendants' exhibits 1 
 
            through 8, each inclusive, were received.  Claimant 
 
            testified personally.  Official notice was taken of the 
 
            distance between Burlington and Davenport as shown by the 
 
            official Iowa Department of Transportation road map:  77 
 
            miles.  The distance between Burlington and Rock Island, 
 
            Illinois, would be roughly equivalent.
 
            
 
                                      issue
 
            
 
                 The sole issue presented for resolution is:
 
            
 
                 1.  Whether defendants should be ordered to provide 
 
            alternate medical care under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 Raelyn J. Womack suffered a work injury on July 5, 
 
            1990.  She described the onset of pain in her right knee, 
 
            shooting up into the hips.  She now asserts a back injury.  
 
            While defendants admit that Ms. Womack sustained an injury 
 
            arising out of and in the course of employment, they dispute 
 
            whether she sustained permanent industrial disability 
 
            causally related to this injury.  In particular, they point 
 
            to the existence of a prior injury and alleged 
 
            noncooperation with treatment modalities.
 
            
 
                 After the injury, claimant first sought medical 
 
            treatment from a practitioner of chiropractic, Raymond 
 
            Hanks, Jr., D.C., who testified by deposition on April 9, 
 
            1992 (claimant's exhibit 1).  Dr. Hanks had treated claimant 
 
            extensively following a 1987 automobile injury.
 
            
 
                 Dr. Hanks advised claimant to seek authorization for 
 
            medical treatment from defendants.  She did so and was 
 
            referred to the company doctor, P. H. Breckner, M.D.  
 
            Defendants next referred claimant to Mitchell H. Paul, D.O., 
 
            an orthopaedic specialist.  At his advice, a return to work 
 
            was attempted in September 1990, but for whatever reason 
 
            proved unsuccessful.  In October, claimant requested 
 
            authorization to treat with another chiropractor and 
 
            defendants referred her to Thomas A. Rexroth, D.C.  Claimant 
 
            felt that Dr. Rexroth's treatment was unhelpful or even 
 
            aggravated her condition.  At his advice, she unsuccessfully 
 
            attempted another return to work in December.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant subsequently returned to Dr. Paul, who 
 
            suggested evaluation at the University of Iowa Spine Clinic.  
 
            Defendants refused to authorize this evaluation and referred 
 
            her instead to Robert O. Crous, III, M.D., an orthopaedic 
 
            surgeon located in Rock Island, Illinois.  Dr. Crous 
 
            released claimant to return to her regular duties effective 
 
            January 31, 1991, as per a videotape purportedly depicting 
 
            those duties.  This litigation ensued.
 
            
 
                 Claimant saw Dr. Crous again on April 3, 1992, and was 
 
            on this occasion favorably impressed.  Nonetheless, she 
 
            complains that the distance between her residence and Dr. 
 
            Crous's office renders his care unduly inconvenient within 
 
            the meaning of section 85.27.
 
            
 
                 Claimant is currently a full-time student, having begun 
 
            her course of study by way of vocational rehabilitation in 
 
            fall, 1990.  She is taking instruction in design 
 
            engineering, requiring some "hands on" laboratory courses, 
 
            not amenable to tape recording in the same manner as lecture 
 
            courses.  She goes to school from 1-4 hours per day, but 
 
            classes are scattered rather than in a block of time.
 
            
 
                 Ms. Womack complaints that, in order to see Dr. Crous, 
 
            she must in advance:  advise teachers of her impending 
 
            absence, purchase blank audio tapes, arrange for the taping 
 
            of lectures, arrange child care for her 12- and 15-year-old 
 
            children, arrange transportation with defendants (she must 
 
            rent a car, since her own vehicle is not trustworthy over 
 
            such distances) and arrange for a friend to go with her, 
 
            since she complains she is unable to drive the entire round 
 
            trip due to low back pain aggravated by distance driving.  
 
            Dr. Hanks suggests in his deposition that driving a car 
 
            might cause her a problem, or at least more of a problem 
 
            than riding a motorcycle.  Medical opinion on the 
 
            advisability of distance driving is scant in this record.
 
            
 
                                conclusions of law
 
            
 
                 In pertinent part, Iowa Code section 85.27 provides:
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 While defendants have offered prompt treatment, they 
 
            are not currently doing so "without undue inconvenience to 
 
            the employee."  Without in any way belittling Dr. Crous's 
 
            speciality, it cannot be said that it is so esoteric that 
 
            competent practitioners cannot be found within a more 
 
            realistic geographic distance.  A city the size of 
 
            Burlington must surely boast qualified practitioners of that 
 
            speciality, and claimant testified that others are to be 
 
            found in Fort Madison.  Even Keokuk, Mount Pleasant and 
 
            Muscatine are much closer than Rock Island.  On April 3, 
 
            claimant asserts that she took nearly three hours to drive 
 
            the distance one way (indicative of a much less leaden foot 
 
            than her testimony implied).  Still, a round trip on the 
 
            order of 150 miles is no small undertaking for most people, 
 
            much less a back patient without a reliable vehicle.  The 
 
            time investment alone has a serious potential for 
 
            detrimental conflict with classroom attendance.
 
            
 
                 Defendants have made clear that they intend to strictly 
 
            hold claimant to the requirements of section 85.27 with 
 
            respect to emergency care (claimant's exhibit 2).  Claimant 
 
            has run up a substantial bill with Dr. Hanks continuing to 
 
            treat with him even though he has not been authorized, thus 
 
            indicating a continuing need for treatment, at least in her 
 
            mind.  This decision does not address the issue of whether 
 
            those expenses are compensable, although a reasonable 
 
            argument can certainly be made that defendants cannot assert 
 
            an authorization defense at least prior to their amended 
 
            answer of February 6, 1992.  See Barnhart v. MAQ, Inc., I 
 
            Iowa Industrial Commissioner Report 16 (1981); Mason v. 
 
            Thermo-Gas, File No. 819978 (App. Decn., July 28, 1989).
 
            
 
                 Claimant has not requested the right to choose her own 
 
            physician, even though defendants are very late to an 
 
            admission of compensability in this case.  Rather, she 
 
            requests only that defendants authorize a physician of their 
 
            choice more conveniently located.  This request is 
 
            reasonable.  The medical care now offered her is not, since 
 
            it entails undue inconvenience to the employee.  Note, as 
 
            persuasive authority, Commercial Carrier Corp. v. Fox, 400 
 
            So. 2d 154 (Fla. App. 1981), where the only physicians 
 
            authorized were located 50 miles from claimant, who 
 
            complained (successfully) that this travel aggravated his 
 
            pain.  See also Bogguss v. Sheller-Globe Corp., File No. 
 
            927477 (Arb. Decn., July 26, 1991).  The equities are with 
 
            claimant on this issue.
 
            
 
                 Rule 343 IAC 4.42(5) requires that an Order Approving 
 
            Settlement by Acquiescence be entered by the industrial 
 
            commissioner simultaneously with the entry of this decision.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            The undersigned treats himself as the industrial 
 
            commissioner's designee under 343 IAC 4.40, and thereby 
 
            collectively referred to as the industrial commissioner.  
 
            The Order Approving Settlement by Acquiescence shall be 
 
            contained with this decision.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall provide reasonable and necessary 
 
            medical treatment under Iowa Code section 85.27 by a 
 
            physician of their choice located at a reasonable distance 
 
            from claimant's place of residence.  Authorization of Dr. 
 
            Crous as the sole treating physician entails undue 
 
            inconvenience to claimant.  This order does not address the 
 
            issue of whether any particular medical treatment is or has 
 
            been reasonable and necessary or causally related to the 
 
            work injury of July 5, 1990.
 
            
 
                 IT IS FURTHER ORDERED that no assessment of costs shall 
 
            be made at this time.
 
            
 
                 IT IS FURTHER ORDERED that, because this binding 
 
            arbitration does not resolve all outstanding issues, the 
 
            cause shall be returned to the prehearing docket.
 
            
 
                 AND:
 
            
 
                 IT IS ALSO ORDERED that the foregoing is approved as a 
 
            settlement by acquiescence within the meaning of rule 343 
 
            IAC 4.42(5).
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Susan A. Diehl
 
            Mr. Charles C. Brown, Jr.
 
            Attorneys at Law
 
            3401 Williams Blvd. SW
 
            P.O. Box 998
 
            Cedar Rapids, Iowa  52406-0998
 
            
 
            Mr. Mark A. Woollums
 
            Mr. Craig A. Levien
 
            Attorneys at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Davenport, Iowa  52801
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           2501; 2900
 
                           Filed April 21, 1992
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAELYN J. WOMACK,             :
 
                                          :         File No. 955356
 
                 Claimant,                :
 
                                          :         D E C I S I O N
 
            vs.                           :
 
                                          :        A N D   O R D E R
 
            LAMONT LIMITED,               :
 
                                          :        A P P R O V I N G
 
                 Employer,                :
 
                                          :       S E T T L E M E N T
 
            and                           :
 
                                          :               B Y
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY,                     :     A C Q U I E S C E N C E
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2900
 
            
 
                 Parties submitted alternate medical care issue to 
 
            binding arbitration under rule 343 IAC 4.42.  As the rule is 
 
            silent as to the manner in which a hearing is to be 
 
            conducted, the deputy selected by the parties gave the 
 
            following options:  (1)  telephone conference hearing; (2) 
 
            hearing in Des Moines; or, (3) hearing in the appropriate 
 
            venue when the deputy was next assigned to service that 
 
            venue.  The parties agreed to a telephone conference 
 
            hearing.
 
            
 
                 Simultaneously with and as a part of the decision, the 
 
            deputy entered an "Order Approving a Settlement by 
 
            Acquiescence" as a designee of the industrial commissioner, 
 
            and thereby collectively referred to as the commissioner 
 
            under rule 343 IAC 4.40.
 
            
 
            2501
 
            
 
                 Defendants withdrew authorization of all physicians 
 
            except an orthopaedic surgeon located some 75-80 miles from 
 
            claimant's residence.  Claimant, a back patient, asserted 
 
            that she could not drive this far due to pain, thus 
 
            requiring an assistant driver.  She also needed to rent a 
 
            car by prior arrangement with defendants because her own was 
 
            not road worthy at such distances.  The time necessary for 
 
            round trips had the potential to unduly interfere with 
 
            college courses claimant is taking by way of vocational 
 
            rehabilitation.  Because the treatment offered by defendants 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was not "without undue inconvenience to the employee," 
 
            within the meaning of section 85.27, defendants were ordered 
 
            to authorize another physician of their choice at a more 
 
            reasonable distance.  Claimant did not seek the right to 
 
            choose her own care.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       ____________________________________________________________
 
       TIMOTHY SHINN,   
 
               
 
          Claimant, 
 
               
 
       vs.          
 
                                            File No. 955539
 
       COLONIAL BAKING COMPANY,   
 
                                        A R B I T R A T I O N
 
          Employer, 
 
                                            D E C I S I O N
 
       and         
 
               
 
       PACIFIC EMPLOYERS 
 
       INSURANCE CO.,    
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ___________________________________________________________
 
                           STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration upon the petition of 
 
       claimant, Tim Shinn, against his employer, Colonial Baking Co., 
 
       and its insurance carrier, Pacific Employers' Insurance Co., 
 
       defendants.  The administrative file reflects a filing of the 
 
       first report of injury on July 23, 1990.  Claimant filed his 
 
       petition with the Iowa Division of Industrial Services on July 
 
       14, 1993.  The parties, in their prehearing conference report, 
 
       indicated they would be ready for a hearing on the matter on or 
 
       after September 1, 1994.  The case was heard on December 14, 
 
       1994, in Des Moines, Iowa at the office of the Division of 
 
       Industrial Services.
 
            
 
            The record consists of the testimony of claimant.  The 
 
       record also consists of joint exhibits 1-16 and claimant's 
 
       exhibits 1-3.
 
       
 
                                 ISSUES
 
            
 
            The issues to be determined are:  1) whether there is a 
 
       causal relationship between the work injury and any permanent 
 
       disability; and, 2) whether claimant is entitled to any permanent 
 
       partial disability benefits.
 
       
 
                 FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
            
 
            The deputy, having heard the testimony and considered all of 
 
       the evidence, makes the following findings of fact and 
 
       conclusions of law:
 
            
 
            Claimant is 36-years-old.  He is the married father of five 
 
       children.  Claimant did not graduate from high school.  He 
 
       completed the tenth grade but he left school prior to his 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       graduation.  After he left school, claimant assisted his father 
 
       in the family business.  His father owned and operated an 
 
       automobile garage.
 
            
 
            Claimant completed truck driving school.  He earned a 
 
       certificate of course completion.  For a period of time he was 
 
       licensed to operate commercial vehicles.  Claimant drove semi-
 
       trucks for several different periods of time.  However, as of the 
 
       date of the hearing, claimant did not hold a valid license for 
 
       driving trucks.
 
            
 
            Claimant entered the military for a short period of time.  
 
       He encountered several difficulties and he left after two months.
 
            
 
            Claimant's previous work experience centered around the 
 
       automobile area.  Claimant performed various mechanical duties 
 
       when he worked in his father's garage.  He installed exhaust 
 
       systems, he worked on brakes, and he installed transmissions.  
 
       Claimant drove tow trucks.  He also worked as a heavy equipment 
 
       mechanic and he repaired heavy truck tires.  Additionally, 
 
       claimant fabricated flatbed utility trailers.
 
            
 
            Claimant commenced his employment with the present employer 
 
       in April of 1988.  He was hired as a transport truck driver.  His 
 
       duties required claimant to load and unload products and to 
 
       transport the products from Des Moines, Iowa to Lincoln, Nebraska 
 
       and then return to Des Moines.  He testified he worked seven to 
 
       eight hours per day and his shift was from 7 p.m. to 3 a.m.  
 
       Claimant earned $494.00 per week.
 
            
 
            The parties stipulated claimant's work injury occurred on 
 
       July 4, 1990.  At the time, a wire cart loaded with products 
 
       toppled and landed on claimant.  He was struck on the right 
 
       shoulder, the back of his head, and on his back.  A co-employee 
 
       removed the rack from claimant.  However, claimant did complete 
 
       his shift on the night of the work injury.
 
            
 
            Subsequent to the work injury, x-rays were taken of 
 
       claimant's right shoulder and cervical spine (Exhibit 4-28).  The 
 
       x-rays showed no abnormality (Ex. 4-28).
 
            
 
            Michael J. Makowsky, M.D., was designated as the authorized 
 
       treating physician.  He ordered a MRI.  The MRI indicated there 
 
       was no tear or impingement detected (Ex. 1-4).  Several steroid 
 
       injections were attempted.
 
            
 
            Dr. Joshua Kimmelman, D.O., an orthopedic surgeon, was 
 
       designated as a treating surgeon.  On January 14, 1991, Dr. 
 
       Kimmelman performed a right impingement release with resection 
 
       coracoacromial ligament and anterior acromioplasty (Ex. 2-9).  
 
       Following surgery, claimant engaged in physical therapy and work 
 
       hardening.  Because claimant did not progress as quickly as his 
 
       physicians had hoped, additional physical therapy including water 
 
       exercises and whirlpool baths were prescribed.  Claimant 
 
       cooperated with the medical care providers.
 
            
 
            Dr. Makowsky released claimant to return to work in a light 
 
       duty capacity at the bakery.  The physician authorized claimant 
 
       to return to truck driving but on a limited route and for 
 
       approximately six hours per shift.  Claimant participated in the 
 
       light duty program; however, he voiced complaints relative to 
 
       right shoulder pain.  Claimant was released to return to full 
 
       duty effective September 19, 1991 (Ex. 1-10).  He did not believe 
 
       he was capable of handling his regular shift.  Consequently, he 
 
       resigned from his employment with defendant.
 
            
 

 
 
 
 
 
 
 
 
 
            In October of 1991, Dr. Makowsky examined claimant.  The 
 
       physician opined the following in his clinical notes for October 
 
       21, 1991:
 
            
 
            O: NO OBJECTIVE FINDINGS.  HE IS DIFFUSELY TENDER UP 
 
            AND DOWN HIS RIB CAGE ALONG THE AXILLARY LINE.  HIS 
 
            ROM IN ABDUCTION WAS 0-95 DEGREES.  FORWARD FLEXION 
 
            WAS 0-170 DEGREES.  THERE IS STILL TENDERNESS ON 
 
            PALPATION OVER THE RIGHT ANTERIOR SHOULDER.
 
            
 
            P: I HAVE NOTHING ELSE TO OFFER HIM.  I FILLED OUT A 
 
            FORM FOR THE VOCATIONAL REHABILITATION SERVICES.  I 
 
            RECOMMENDED THE FOLLOWING FUNCTIONAL LIMITATIONS:  
 
            AVOID ABOVE RIGHT SHOULDER LEVEL WORK, NO REPETITIVE 
 
            PUSHING AND PULLING WITH THE RIGHT ARM, AND MAXIMUM 
 
            LIFTING WITH THE RIGHT ARM OF 25 LBS.  I TOLD HIM 
 
            THAT WE WOULD SPEAK TO RENEE KING TO SEE WHAT ELSE 
 
            CAN BE DONE.  I SUGGESTED THAT HE DISCONTINUE THE 
 
            EXERCISES FOR ONE WEEK TO RE-EVALUATE HIS PAIN OVER 
 
            THE ANTERIOR CHEST.  HE IS TAKING DARVOCET AND 
 
            IBUPROFEN.  FOR NOW, I WILL NOT PLAN TO SEE HIM BACK 
 
            AGAIN EXCEPT PRN.
 
       
 
       (Claimant Ex. 1-2)
 
            
 
            Dr. Makowsky authored a report concerning claimant's 
 
       permanent impairment.  In the report, the occupational medicine 
 
       practitioner opined:
 
            
 
               I have calculated that according to the American 
 
            Medical Association's "Guide's to the Evaluation of 
 
            Permanent Impairment", 3rd edition, revised, Mr. Shinn 
 
            has sustained an eight percent impairment of the right 
 
            upper extremity secondary to his right shoulder 
 
            impingement and being status post right shoulder 
 
            acromioplasty.  I also recommend the following 
 
            permanent restrictions:  he should avoid above right 
 
            shoulder level work, he should avoid repetitive pushing 
 
            and pulling with his right arm and he should avoid a 
 
            maximum lifting above the right arm of 25 pounds.
 
       
 
       (Cl. Ex. 1-1)
 
            
 
            Claimant was also evaluated by Dr. Kimmelman.  In his 
 
       clinical note for September 19, 1991, Dr. Kimmelman opined:
 
            
 
               Follow-up of right shoulder impingement release.  
 
            Tim has restriction of internal rotation, slight 
 
            forward flexion.  Positive impingement test and pain in 
 
            the shoulder.
 
            
 
               I believe this represents 5% permanent impairment of 
 
            his right shoulder.
 
       
 
       (Cl. Ex. 1-21)
 
            
 
            Since claimant did not return to his full duty shift, and 
 
       other suitable work was not available within the bakery, claimant 
 
       filed for unemployment benefits.  An administrative law judge 
 
       awarded claimant unemployment insurance benefits (Ex. 2-37).  In 
 
       rendering her decision, the judge determined that:
 
            
 
               An individual who leaves employment because of 
 
            disability is disqualified from receiving benefits 
 
            unless he establishes that his disability was either 
 
            caused or aggravated by the employment.  Hedges v. Iowa 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            Department of Job Service, 368 N.W.2d 862 (Iowa App. 
 
            1985).  It is undisputed that Mr. Shinn's disability 
 
            was caused by a work-related injury.  He is unemployed 
 
            because Colonial Baking Company could no longer provide 
 
            him with employment that would accommodate his doctor-
 
            imposed limitations.  Therefore, Mr. Shinn was 
 
            separated for no disqualifiable reason, and benefits 
 
            are allowed.
 
       
 
       (Cl. Ex. 3-38)
 
            
 
            Since his termination from the bakery, claimant has engaged 
 
       in construction, including roofing.  Defendants directed a 
 
       private investigator to conduct surveillance on claimant during 
 
       September of 1993.  Exhibit 11 is comprised of three videotapes 
 
       of claimant.  Claimant is depicted carrying bundles of shingles 
 
       over his head.  He is able to carry, without any apparent 
 
       difficulty, aluminum ladders.  Claimant bends and reaches with 
 
       his arms.  He engages in numerous physical activities which are 
 
       required in the roofing business.  He works from ladders and he 
 
       is able to balance himself while he is working on a roof.  This 
 
       observer noted no visible signs of any pain manifestations.
 
            
 
            Portions of the videotape were shown to Dr. Makowsky.  After 
 
       he reviewed the relevant portions, Dr. Makowsky amended his 
 
       opinions relative to claimant's condition and his work 
 
       restrictions.  Dr. Makowsky opined:
 
            
 
               I reviewed a video tape that you provided.  The date 
 
            of the video tape was September 7, 1993 and September 
 
            10, 1993.  In the video tape, Tim Shinn was seen 
 
            carrying building and roofing material at waist level 
 
            and above his shoulder and repetitively using his right 
 
            arm to hold an air gun.  Also, in the video tape Tim 
 
            Shinn reached above shoulder level and apparently did 
 
            not have any difficulty.  I did not notice any favoring 
 
            of his right arm.  Mr. Shinn did not appear to have any 
 
            functional limitations as it relates to his right 
 
            shoulder.
 
            
 
               In a March 13, 1992 letter to David D. Drake, I 
 
            indicated Mr. Shinn had sustained an 8% impairment of 
 
            his right upper extremity, secondary to right shoulder 
 
            acromioplasty.  I also recommended he be assigned the 
 
            following permanent restrictions:  he should avoid 
 
            above right shoulder level work, avoid repetitive 
 
            pushing and pulling with his right arm, and avoid a 
 
            maximum lifting above the right arm of twenty-five 
 
            pounds.
 
            
 
               Based upon my review of the video tape, Mr. Shinn 
 
            does not have a permanent impairment of his right 
 
            shoulder as it relates to his previous injury.  The 
 
            video tape did not show him to have any functional 
 
            limitations.  Therefore, I think the previous 
 
            restrictions I assigned to Mr. Shinn are obsolete.
 
       
 
       (Jt. Ex. 1-1)
 
            
 
            Dr. Kimmelman also reviewed the same videotape.  He opined 
 
       the following in his report of June 28, 1994:
 
            
 
            HISTORY:
 
            
 
               Tim comes in for reevaluation.  He reports he is 
 
            unchanged since last being seen.  He continues to 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            complain of discomfort in the shoulder and pain in the 
 
            side of the chest wall.  He reports it is increased 
 
            with activity.
 
            
 
            PHYSICAL EXAMINATION:
 
            
 
               He lacks 35 degrees of full forward flexion.  He is 
 
            barely able to get his arm behind his back.  He has 
 
            full external rotation.  He has not atrophy or weakness 
 
            in the upper extremity compared to the opposite side.  
 
            He has full range of motion cervical spine.  He has 
 
            good sensation in the arm.  The right anterior shoulder 
 
            incision is well healed.
 
            
 
            RADIOGRAPHS:
 
            
 
               X-ray shows well preserved joint space with no 
 
            evidence of osseous abnormality in the shoulder; fairly 
 
            flat acromial undersurface.
 
            
 
            IMPRESSION:
 
            
 
               Status post right impingement syndrome with 
 
            continued subjective complaints.
 
            
 
            PLAN:
 
            
 
               Currently not taking any medication or under any 
 
            treatment.  We'll see him PRN.
 
            
 
            ADDENDUM:
 
            
 
               I additionally reviewed a video tape of Mr. Shinn 
 
            roofing a house.  During the course of the video tape, 
 
            it was noted that he was lifting bundles of shingles 
 
            and other building material over his head, throwing 
 
            them up on the top of a rack on a pick-up truck and 
 
            demonstrating excellent ability to use his right arm 
 
            and shoulder without any apparent compensation for his 
 
            previous shoulder injury.
 
       
 
       (Jt. Ex. 2-6,7)
 
            
 
            Claimant testified that as of the time of the hearing, he 
 
       experienced pain in his right shoulder which radiated down to his 
 
       right ribs.  He added that he did not have the full range of 
 
       motion of his right shoulder.
 
            
 
            During cross-examination, claimant testified he is able to 
 
       perform mechanical repairs on vehicles.  He can get underneath 
 
       them with the aid of a "creeper" and then complete the requisite 
 
       repairs.
 
            
 
            He also admitted he is capable of performing residential and 
 
       some commercial remodeling work.  He can operate hand tools and 
 
       air guns.  He has laid carpeting.  He has secured several 
 
       construction projects on his own.  He has performed some concrete 
 
       work as an independent contractor.  Claimant admitted he was not 
 
       registered as a contractor with the Iowa Division of Labor 
 
       Services.
 
            
 
            Additionally, claimant assists with the family business.  He 
 
       can perform basic bookkeeping skills and inventory control.  He 
 
       engages in some mechanical repairs.
 
            
 
            The burden of proof is on the party asserting the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       affirmative of an issue in an administrative proceeding; "on the 
 
       party who would suffer loss if the issue were not established."  
 
       Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. 
 
       Ides, 412 N.W.2d 904 (Iowa 1987).
 
            
 
            The claimant has the burden of proving by a preponderance of 
 
       the evidence that the injury is a proximate cause of the 
 
       disability on which the claim is based.  A cause is proximate if 
 
       it is a substantial factor in bringing about the result; it need 
 
       not be the only cause.  A preponderance of the evidence exists 
 
       when the causal connection is probable rather than merely 
 
       possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
       1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
       1974).
 
            
 
            The question of causal connection is essentially within the 
 
       domain of expert testimony.  The expert medical evidence must be 
 
       considered with all other evidence introduced bearing on the 
 
       causal connection between the injury and the disability.  The 
 
       weight to be given to any expert opinion is determined by the 
 
       finder of fact and may be affected by the accuracy of the facts 
 
       relied upon by the expert as well as other surrounding 
 
       circumstances.  The expert opinion may be accepted or rejected, 
 
       in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
       (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
       1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
       (1965).
 
            
 
            Claimant has proven that he has sustained a permanent injury 
 
       to his right shoulder.  He underwent a right impingement release 
 
       with resection of the coracoacromial ligament and anterior 
 
       acromioplasty.  Dr. Kimmelman, the treating orthopedic surgeon, 
 
       determined claimant had a permanent impairment in the amount of 
 
       five percent.  Dr. Kimmelman is a well respected orthopedic 
 
       surgeon.  He also noted some reduced range of motion in 
 
       claimant's full flexion.  Claimant's testimony also supports a 
 
       conclusion of permanent disability.  He testified extensively 
 
       about his right shoulder pain and the limitations he has 
 
       encountered since the work injury.
 
            
 
            It is acknowledged that Dr. Makowsky revised his opinion 
 
       after he reviewed the videotape which is exhibit 11.  Originally, 
 
       he had imposed permanent restrictions.  He removed those 
 
       restrictions after two years, and after claimant had endured a 
 
       rigorous home exercise program.
 
            
 
            Therefore, it is the determination of the undersigned that 
 
       claimant has sustained a permanent partial disability as a result 
 
       of his work injury on July 4, 1990.  Claimant's injury is a body 
 
       as a whole injury.  His disability, if any, is calculated by the 
 
       industrial method.
 
            
 
            Functional impairment is an element to be considered in 
 
       determining industrial disability which is the reduction of 
 
       earning capacity, but consideration must also be given to the 
 
       injured employee's age, education, qualifications, experience 
 
       and 
 
       inability to engage in employment for which the employee is 
 
       fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
       N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
       N.W.2d 660 (1961).
 
            
 
            A finding of impairment to the body as a whole found by a 
 
       medical evaluator does not equate to industrial disability.  
 
       Impairment and disability are not synonymous.  The degree of 
 
       industrial disability can be much different than the degree of 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       impairment because industrial disability references to loss of 
 
       earning capacity and impairment references to anatomical or 
 
       functional abnormality or loss.  Although loss of function is to 
 
       be considered and disability can rarely be found without it, it 
 
       is not so that a degree of industrial disability is 
 
       proportionally related to a degree of impairment of bodily 
 
       function.
 
            
 
            Factors to be considered in determining industrial dis
 
       ability include the employee's medical condition prior to the 
 
       injury, immediately after the injury, and presently; the situs of 
 
       the injury, its severity and the length of the healing period; 
 
       the work experience of the employee prior to the injury and after 
 
       the injury and the potential for rehabilitation; the employee's 
 
       qualifications intellectually, emotionally and physically; 
 
       earnings prior and subsequent to the injury; age; education; 
 
       motivation; functional impairment as a result of the injury; and 
 
       inability because of the injury to engage in employment for which 
 
       the employee is fitted.  Loss of earnings caused by a job 
 
       transfer for reasons related to the injury is also relevant.  
 
       Likewise, an employer's refusal to give any sort of work to an 
 
       impaired employee may justify an award of disability.  McSpadden 
 
       v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
       matters which the finder of fact considers collectively in 
 
       arriving at the determination of the degree of industrial 
 
       disability.
 
            
 
            There are no weighting guidelines that indicate how each of 
 
       the factors are to be considered.  Neither does a rating of 
 
       functional impairment directly correlate to a degree of 
 
       industrial disability to the body as a whole.  In other words, 
 
       there are no formulae which can be applied and then added up to 
 
       determine the degree of industrial disability.  It therefore 
 
       becomes necessary for the deputy or commissioner to draw upon 
 
       prior experience as well as general and specialized knowledge to 
 
       make the finding with regard to degree of industrial disability.  
 
       See Christensen v. Hagen, Inc., Vol. 1, No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
       Peterson v. Truck Haven Cafe, Inc., Vol. 1, No. 3 State of Iowa 
 
       Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
            
 
            Compensation for permanent partial disability shall begin at 
 
       the termination of the healing period.  Compensation shall be 
 
       paid in relation to 500 weeks as the disability bears to the body 
 
       as a whole.  Section 85.34.
 
            
 
            Claimant left his employment with this defendant because he 
 
       believed full duty was too strenuous for him.  At the time, Dr. 
 
       Makowsky also believed claimant needed to find another line of 
 
       work.  Defendant-employer did not have light duty available to 
 
       claimant for an extended time period.  Consequently, claimant 
 
       felt he was unable to continue his employment at the bakery.  He 
 
       terminated the employment relationship.
 
            
 
            Claimant exaggerated the severity of his right shoulder 
 
       condition.  It is apparent to the undersigned that two years 
 
       after the work injury, claimant was physically capable of 
 
       handling construction work.  He was even able to sustain 
 
       employment which involved working above shoulder level and 
 
       lifting more than 25 pounds.  As of 1993, permanent restrictions 
 
       were lifted from claimant's work activity.  He was not precluded 
 
       from pursuing all types of manual labor.
 
            
 
            Since permanent restrictions were lifted, claimant was able 
 
       to return to any of his former occupations.  He has many 
 
       transferable skills from previous jobs in the building trades or 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       from his experiences in auto mechanics.  He is a "hands on" 
 
       person.  There are many job opportunities in the labor market 
 
       which pay at nearly the same rate of pay as his job at the 
 
       bakery.  Claimant has had an actual loss of earnings for the 
 
       period before he returned to construction work.  However, once 
 
       the restrictions were lifted, he had the potential for achieving 
 
       nearly the same earning capacity.
 
            
 
            Therefore, in light of the foregoing, it is the 
 
       determination of the undersigned that claimant is entitled to a 
 
       fifteen percent permanent partial disability.  He is entitled to 
 
       75 weeks of permanent partial disability benefits at the 
 
       stipulated rate of $320.12 per week and commencing from September 
 
       25, 1991.
 
       
 
                                  ORDER
 
            
 
            THEREFORE, IT IS ORDERED:
 
            
 
            Defendants shall pay unto claimant seventy-five (75) weeks 
 
       of permanent partial disability benefits at the stipulated rate 
 
       of three hundred twenty and 12/l00 dollars ($320.12) per week and 
 
       commencing from September 25, 1991.
 
            
 
            Accrued benefits are to be paid in a lump sum together with 
 
       statutory interest at the rate of ten percent (10%) per year 
 
       pursuant to section 85.30, Iowa Code, as amended.
 
            
 
            Defendants shall take credit for all benefits previously 
 
       paid claimant.
 
            
 
            Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
            
 
            Defendants shall file a claim activity report as requested 
 
       by this division pursuant to rule 343 IAC 3.1.
 
       
 
             Signed and filed this ____ day of May, 1995.
 
       
 
       
 
       
 
                                     ______________________________          
 
                                      MICHELLE A. McGOVERN
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. David D. Drake
 
       Attorney at Law
 
       West Towers Office Complex
 
       1200 35th St  STE 500
 
       West Des Moines  IA  50266
 
       
 
       Mr. Michael R. Hoffmann
 
       Attorney at Law
 
       Breakwater Bldg
 
       3708 75th St
 
       Des Moines  IA  50322
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            1800
 
                                            Filed May 24, 1995
 
                                            MICHELLE A. McGOVERN
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
               
 
         TIMOTHY SHINN, 
 
               
 
          Claimant, 
 
               
 
         vs.        
 
                                                File No. 955539
 
         COLONIAL BAKING COMPANY, 
 
                                             A R B I T R A T I O N
 
          Employer, 
 
                                                D E C I S I O N
 
         and        
 
               
 
         PACIFIC EMPLOYERS    
 
         INSURANCE CO.,  
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
         ___________________________________________________________
 
         1800
 
         Claimant was awarded a 15 percent permanent partial 
 
         disability as a result of a work injury to his right 
 
         shoulder.  Lengthy videotapes convinced the deputy 
 
         industrial commissioner that claimant exaggerated the 
 
         severity of his symptoms.