BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SUSAN R. HAFFNER,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 955542
 
            ELECTRICAL SYSTEMS,   
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            WAUSAU INSURANCE COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        :
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                   ISSUES
 
            
 
            Defendants state the following issues on appeal:
 
            [W]hether the Deputy Commissioner erred in finding that the 
 
            claimant's injury of August 8, 1989, constitutes an injury 
 
            which is to the body as a whole. ...[W]hether the Deputy 
 
            Commissioner erred in finding that claimant sustained a 20 
 
            percent industrial disability to the body as a whole.
 
            
 
                             FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed August 16, 1993 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 It is determined that the injury of August 8, 1989 was 
 
            the cause of permanent disability.
 
            
 
                 It is determined that the injury of August 8, 1989 was 
 
            an injury to the body as a whole.
 
            
 
                 It is determined that claimant has sustained a 20 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 100 weeks of permanent partial 
 
            disability benefits.
 

 
            
 
            Page   2
 
            
 
            
 
                 *****
 
            
 
                 Claimant, born June 29, 1950, (Exhibit 15, page 31) was 
 
            39 years old at the time of the injury and 42 years old at 
 
            the time of the hearing.  Claimant started to work for 
 
            employer on March 20, 1986 and she continued to work for 
 
            employer at the time of the hearing which is a period of 
 
            seven years (Ex. 14, p. 1).  Personnel records show that she 
 
            has been employed as a laborer, inspector, and an assembly 
 
            person (Ex. 14, pp. 1-38).  When she applied for employment 
 
            with employer she indicated that she did not have any 
 
            physical condition which might limit her ability to perform 
 
            the particular job for which she was applying.  She 
 
            indicated she did not have any physical defects which 
 
            precluded her from performing any kind of work.  She agreed 
 
            to undergo a preemployment physical examination (Ex. 14, p. 
 
            35).  Subsequent to her employment with employer she did 
 
            sustain bilateral carpal tunnel syndrome and a bilateral 
 
            carpal tunnel release was performed on April 11, 1988 (Ex. 
 
            15, p. 1).
 
            
 
                 Claimant's prior employments were basically production 
 
            work which required extensive use of her hands, arms and 
 
            shoulders.  These employments included a sewing factory, 
 
            ball bearing plant, pork plant, beef plant, waitressing, 
 
            cooking, and extensive production work for employer (Ex. 14, 
 
            pp. 33-37; Tran. pp. 19-37; Ex. 9, p. 3).
 
            
 
                 Claimant had previously injured her right shoulder 
 
            working for another employer.
 
            
 
                 Claimant reported that this injury to her left shoulder 
 
            occurred as follows:  "I was inspector back in the cutting 
 
            area and the terminators at that time, and I went to reach 
 
            for a part, and my shoulder caught and sent a pain down 
 
            through my shoulder over into my chest (indicating) (Tran., 
 
            pp. 38 & 39).
 
            
 
                 Claimant testified that she had never experienced a 
 
            pain like this before.  She reported it to her supervisor.  
 
            Claimant was sent to see a local doctor, Stephen B. Gruba, 
 
            M.D., (Tran., p. 40).  Claimant averred that the pain which 
 
            she felt was in her
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            shoulder and not in her arm (Tran., p. 40).   Dr. Gruba's 
 
            records reflect that he first saw claimant for a shoulder 
 
            injury on September 19, 1988.  Dr. Gruba reported as 
 
            follows:  
 
            
 
                    "On 9-9-88, during her regular shift, she 
 
                 essentially tried to see how hard she could work 
 
                 and how many units she could do in an eight hour 
 
                 shift.  She is expected to do about 160 and ended 
 
                 about doing about 1200.  ... The day after this 
 
                 extra exertion, she had aching pain into the left 
 
                 shoulder, the left elbow and left wrist area." 
 
            
 
                 (Ex. 16, p. 2).  
 
            
 
                 Dr. Gruba diagnosed overuse syndrome with mild 
 
            tendonitis.  Claimant continued to have trouble with her 
 
            left arm and Dr. Gruba ordered an EMG (Ex. 16, p. 2) which 
 
            showed slight improvement from the EMG, which was taken at 
 
            the time of the carpal tunnel surgeries (Ex. 17, p. 6).
 
            
 
                 Claimant continued to see Dr. Gruba on February 9, 
 
            1990, March 2, 1990, May 29, 1990 and June 6, 1990 (Ex. 16, 
 
            p. 3).  On the latter date, Dr. Gruba recorded that claimant 
 
            had a catching type of pain in her left shoulder when she 
 
            moves her arm up and then back (Ex. 16, p. 3).  She was not 
 
            improved on June 13, 1990 (Ex. 16, p. 4).  Dr. Gruba then 
 
            referred claimant to Michael J. Morrison, M.D., an 
 
            orthopedic surgeon who was also a sports medicine specialist 
 
            (Tran., pp. 40 & 43).  
 
            
 
                 Dr. Morrison reported on June 20, 1990, "39 year old 
 
            white female who was stretching some wire harnesses at work 
 
            which required repetitive use of her shoulders, elbows and 
 
            hands and she developed left shoulder pain." (Ex. 4, p. 1).  
 
            Dr. Morrison diagnosed tendonitis left shoulder.  He 
 
            prescribed medications and physical therapy.  On July 10, 
 
            1990, Dr. Morrison gave a cortisone injection (Ex. 3, p. 4).  
 
            On August 14, 1990, Dr. Morrison reported:
 
            
 
                    Susan's work requires her to use her left arm 
 
                 overhead and constantly be reaching.  She has been 
 
                 treated for the impingement syndrome with a local 
 
                 cortisone injection which gave her only temporary 
 
                 relief.  She is wishing to consider further 
 
                 surgical intervention that consists of an 
 
                 acromioplasty of her left shoulder to try to 
 
                 eliminate the impingement and she will call for 
 
                 possible surgical scheduling.
 
            
 
                 (Ex. 4, p. 5)
 
            
 
                 On September 11, 1990, Dr. Morrison found some crepitus 
 
            and popping of the left shoulder with abduction and rotation 
 
            which was not present in the right shoulder (Ex. 4, p. 6).  
 
            
 
                 Claimant consented to surgery which was performed on 
 
            October 8, 1990.
 
            
 
                 At the time of claimant's admission to the hospital Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Morrison summarized the history and attributes it to 
 
            claimant's work.
 
            
 
                    This is a 40-year-old white female whose job 
 
                 requires excessive lifting, especially overhead.  
 
                 She has developed a rather chronic impingement 
 
                 syndrome with supraspinatous tendonitis, not 
 
                 responding to local cortisone injections, 
 
                 anti-inflammatory medications, restricted 
 
                 activities, and physical therapy.
 
            
 
                 (Ex. 5, p. 1)
 
            
 
                 The supaspinatous muscle extends from the upper part of 
 
            the scapula to the humerus and is primarily a part of the 
 
            body as a whole.
 
            
 
                 He said the x-ray showed mild changes involving the AC 
 
            joint.  His physical examination disclosed left shoulder 
 
            tenderness over the AC joint and the subacromial bursa.  He 
 
            diagnosed (1) impingement syndrome, left shoulder and (2) 
 
            chronic supraspinatous tendonitis, left shoulder (Ex. 5, p. 
 
            1).
 
            
 
                 The AC (acromioclavicular) joint and subacromial bursa 
 
            are parts of the body as a whole and not the arm.
 
            
 
                 At the time of the surgery the operative report shows 
 
            that Dr. Morrison diagnosed (1) impingement, left shoulder 
 
            with chronic tendonitis, (2) arthritis, acromioclavicular 
 
            joint, left shoulder.  The procedure that was carried out 
 
            was (1) resection of the distal end of the left clavicle and 
 
            (2) acromioplasty, left shoulder, with release of 
 
            coracoacromial ligament (Ex. 4, p. 2, &  Ex. 6, p. 1).  
 
            
 
                 The clavicle and coracoacromial ligament are parts of 
 
            the body as a whole.
 
            
 
                 The operative note further discloses that the distal 
 
            end of the clavicle was removed, the anterior and inferior 
 
            aspect of the acromion was removed, as well as the 
 
            coracoacromial ligament.  The rotator cuff was inspected but 
 
            there was no evidence of a tear.  There was slight 
 
            degeneration over the greater tuberosity.  
 
            
 
                 The surgery was confined to parts of the body which are 
 
            considered to be parts of the body as a whole.
 
            
 
                 The gleno-humeral joint is the dividing line between 
 
            the arm and the body at the shoulder joint.  Parts of the 
 
            body distal to that joint are the arm.  Parts of the body 
 
            proximal to that joint belong to the body as a whole.  The 
 
            gleno-humeral joint is where the head of the humerus forms a 
 
            socket (or joint) with the gleno-cavity of the scapula.  The 
 
            parts of the arm in that vicinity are the greater 
 
            tuberosity, lesser tuberosity and bicipital grove.  Parts of 
 
            the body as a whole in that vicinity are the acromiam 
 
            process the clavicle and the coracoid process.  The parts of 
 
            the body that were subject to the surgery were all parts of 
 
            the body as a whole.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Although it was speculated that claimant had bicipital 
 
            tendonitis and that she felt pain over the greater 
 
            tuberosity; nevertheless, the surgical diagnosis by the 
 
            orthopedic surgeon was impingement of the left shoulder with 
 
            chronic tendonitis and arthritis of the acromioclavicular 
 
            joint of the left shoulder.  The acromioclavicular joint is 
 
            a part of the body as a whole and not part of the arm.  
 
            
 
                 The parts of the body excised or removed were members 
 
            of the body as a whole, more specifically, the distal end of 
 
            the clavicle, the anterior and inferior aspect of the 
 
            acromion and the coracoacromial ligament, which are parts of 
 
            the body as a whole.  None of these body parts are parts of 
 
            the arm.
 
            
 
                 Gray's Anatomy, page 134, defines the upper extremity 
 
            as follows:  "The bones of the upper extremity consist of 
 
            those of the shoulder girdle, of the arm, the forearm, and 
 
            the hand."  Thus, in medical terms the upper extremity 
 
            extends from the tips of the fingers through the shoulder 
 
            girdle.  This terminology of the upper extremity is further 
 
            verified by the Guides to the Evaluation of Permanent 
 
            Impairment, 3rd Edition (Revised) published by the American 
 
            Medical Association, on page 15, figure 2, where it shows 
 
            the upper extremity to be the entire arm and the shoulder 
 
            girdle.  This is why physicians rate arm injuries in terms 
 
            of the upper extremity.  Likewise, they also rate shoulder 
 
            injuries in terms of the upper extremity.  Therefore, an 
 
            upper extremity rating requires closer analysis.
 
            
 
                 At the same time the Iowa Workers' Compensation Law 
 
            does not have any benefit entitlement for a disability, loss 
 
            or loss of use to the upper extremity.  The words upper 
 
            extremity are not used anywhere in the workers' compensation 
 
            law or more particularly in Iowa Code section 85.34(2).  
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The workers' compensation law awards a benefit for 
 
            disability, loss or loss of use to the arm.  Iowa Code 
 
            section 85.34(2)(m).  Any other disability, loss or loss of 
 
            use other than one of the scheduled members shown in 
 
            subparagraphs a through t are awarded under Iowa Code 
 
            section 85.34(2)(u) "in relation to five hundred weeks as 
 
            the disability bears to the body of the injured employee as 
 
            a whole."  
 
            
 
                 Gray's Anatomy, page 144, further defines the arm as 
 
            follows:  "The arm is that portion of the upper extremity 
 
            which is situated between the shoulder and the elbow.  Its 
 
            skeleton consists of a single bone, the humerus.  
 
            
 
                 Gray's Anatomy, page 150, defines the forearm as 
 
            follows:  "The forearm is that portion of the upper 
 
            extremity which is situated between the elbow and the wrist.  
 
            Its skeleton is composed of two bones, the ulna and radius."
 
            
 
                 For workers' compensation purposes the arm is 
 
            constituted by the skeletal bones of the humerus, ulna and 
 
            radius.  
 
            
 
                 None of these bones or surrounding tissue was 
 
            determined to be injured by either Dr. Gruba or Dr. 
 
            Morrison.
 
            
 
                 In workers' compensation terms the hand is provided for 
 
            in Iowa Code section 85.34(2)(l).
 
            
 
                 The shoulder, and more particularly the acromion, 
 
            clavicle and coracoid process, are not a part of the arm, 
 
            because they are proximal to the gleno-humeral joint are 
 
            considered to be parts of the body as a whole for which 
 
            benefits are awarded under Iowa Code section 85.34(2)(u).  
 
            
 
                 In Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 
 
            N.W.2d 161, (1949) defendants contended that a shoulder 
 
            injury was an injury to the arm.  The supreme court 
 
            disagreed, citing Dailey v. Pooley Lumber Company, 233 Iowa 
 
            758, 763, 765, 10 N.W.2d 569, 573(1943) and stated that 
 
            defendants' assumption that an injury to a shoulder is a 
 
            scheduled member injury is unwarranted.  The court said that 
 
            the arm section of the Code does not apply to the shoulder, 
 
            nor is the shoulder designated as a scheduled member in any 
 
            other section of the Code.  Alm, at page 1177. 
 
            
 
                 Dailey v. Pooley held at page 765 that where the injury 
 
            is to a scheduled member, and also to parts of the body not 
 
            included in the schedule, then the resultant permanent 
 
            disability, if established, is compensable as an injury to 
 
            the body as a whole.
 
            
 
                 Thus, even though claimant may have expressed some arm 
 
            complaints, nevertheless, she was diagnosed as having a 
 
            shoulder injury.  The parts of the arm in the shoulder joint 
 
            (socket) were not determined to be injured or disabled.  The 
 
            major arm part is the head of the humerus which consists of 
 
            the greater tuberosity, lesser tuberosity and the bicipital 
 
            groove.  The injury, the impairment, the loss, the loss of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            use, the permanent disability all occurred to parts of the 
 
            body as a whole.  Thus, even if parts of the arm were 
 
            considered to be injured, which they were not, claimant 
 
            would still be determined to have sustained an injury to the 
 
            body as a whole because the injury and disability extended 
 
            beyond the scheduled member to the body as a whole under the 
 
            rule in the Dailey case.
 
            
 
                 Dr. Morrison assessed that claimant sustained a 5 
 
            percent permanent impairment to the upper extremity (Ex. 2, 
 
            p. 1 & Ex. 3, p. 2).  This converts to 3 percent of the body 
 
            as a whole.  Guides to the Evaluation of Permanent 
 
            Impairment, 3rd Edition (Revised) Table 3, page 16.  
 
            
 
                 He specifically states that this is "Status post op 
 
            acromioplasty left shoulder with resection distal end of the 
 
            left clavicle," (Ex. 3, p. 2).  
 
            
 
                 Therefore, the operating and treating orthopedic 
 
            surgeon specifically relates this permanent impairment to 
 
            the resection of the distal end of the clavicle which is 
 
            unquestionably a part of the body as a whole.  Furthermore, 
 
            so are the acromion and the coracoid process.  Therefore, 
 
            the permanent impairment in this case is to the parts of the 
 
            body as a whole.
 
            
 
                 The surgery did not touch any of the parts of the arm.  
 
            The arm parts were not injured and were not operated upon 
 
            and they are not mentioned in the determination of the 
 
            permanent impairment rating.
 
            
 
                 Although, Dr. Morrison has previously attributed the 
 
            causal connection to claimant's work, he also provides the 
 
            necessary causal connection again in his letter of April 12, 
 
            1991:  "In regards to causation, it would be my feeling that 
 
            if she used her arms excessively overhead, it would have 
 
            been a contributing factor to the development of her 
 
            problems." (Ex. 3, p. 2).  However, back on August 14, 1990, 
 
            Dr. Morrison stated that this was the fact of the matter in 
 
            this case.  He said, "Susan's work requires her to use her 
 
            left arm overhead and constantly be reaching." (Ex. 4, p. 
 
            5).  On the day of the surgery he further stated "This is a 
 
            40-year-old white female whose job requires excessive 
 
            lifting, especially overhead." (Ex. 5, p. 1).  Therefore, 
 
            Dr. Morrison attributes the impairment and disability to 
 
            claimant's employment.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Claimant testified that when she returned to work that she 
 
            was demoted.  Previously she had been earning $5.95 per hour 
 
            and she was transferred to a job which paid $5.80 per hour.  
 
            This is a difference of 15 cents per hour in actual 
 
            earnings.  *****
 
            
 
                 Claimant testified that the manager of the company told 
 
            her on one occasion that she was demoted because she had a 
 
            written warning of some kind.  Claimant told the manager 
 
            that she had not received a written warning.  The manager 
 
            checked into it and came back and told claimant that she was 
 
            demoted because when she asked for a promotion the company 
 
            considered that she did not like her job as an inspector and 
 
            therefore demoted her.  Claimant testified as follows: "... 
 
            --- the reason I asked to be on a cutter job is because it 
 
            paid more, and he said, 'well, we just figured you weren't 
 
            satisfied with your job as inspector, so we put you over 
 
            here on line inspector.'" (Tran., p. 49)
 
            
 
                 Claimant's testimony was not contradicted, 
 
            controverted, rebutted or refuted by employer, even though 
 
            claimant's supervisor, Shirley Boswell, was in the courtroom 
 
            and testified and Deb Andrews the personnel representative 
 
            was also in the courtroom but did not testify.
 
            
 
                 Shirley Boswell, an 11-year employee of employer, 
 
            testified that she is the assembly supervisor and also 
 
            claimant's supervisor, that she has known and observed 
 
            claimant for approximately seven years.  Boswell testified:  
 
            "I feel like Susie's an excellent employee.  She does her 
 
            job.  She does her job well.  She's dependable." (Tran., p. 
 
            76).  Boswell added that claimant works overtime when 
 
            requested to do so, that she is a senior person on her line 
 
            and that she takes responsibility for it and sees to it that 
 
            it runs smoothly.
 
            
 
                 Boswell further testified that claimant performed her 
 
            job without making any complaints of physical problems, 
 
            except occasionally (Tran., pp. 81 & 6).
 
            
 
                  Boswell agreed that claimant was demoted (Tran., p. 
 
            88) but she did not believe that claimant could do the 
 
            cutter job that she applied for because that would be heavy 
 
            lifting (Tran., p. 88).  Boswell did not think claimant 
 
            could perform the floor inspector job that she had done 
 
            previously because it too required some heavy lifting 
 
            (Tran., p. 89-92).  Thus, even though Dr. Morrison did not 
 
            impose any permanent restrictions on claimant, nevertheless, 
 
            her supervisor, Boswell, testified that she is not 
 
            physically able to perform the two jobs that she could 
 
            possibly be promoted to because of her physical limitations.  
 
            Thus, claimant's earnings capacity has been reduced two ways 
 
            (1) she has an actual earnings loss which is real and (2) 
 
            she has a future earnings loss because she is not 
 
            promotable.
 
            
 
                 It was Boswell's opinion that claimant was demoted from 
 
            floor inspector to line inspector because employer did not 
 
            feel she was able to perform the floor inspector job but 
 
            that she could perform the less active job of line 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            inspector.  This was not in claimant's personnel file but 
 
            this was Boswell's opinion on the matter by way of sworn 
 
            testimony (Tran., pp. 83 & 84).
 
            
 
                 Boswell, the only witness for employer, had no 
 
            explanation for the temporal relationship between claimant's 
 
            injury and surgery, and the demotion to a lesser paying job 
 
            (Tran., p. 85).  Deb Andrews, the personnel representative 
 
            did not testify (Tran., p. 87).
 
            
 
                 One of the exhibits is a letter from the division 
 
            manager to claimant dated January 10, 1990, which reads as 
 
            follows:  "Deb Andrews has told me that you have had perfect 
 
            attendance for October through December of this year.  I 
 
            want you to know how much I appreciate that.  This sort of 
 
            dedication to your work is what helps make Electrical 
 
            Systems a successful business." (Ex. 14, p. 15).  
 
            
 
                 Thus, it must be concluded that if claimant is a good 
 
            employee but they were unable to place her in the two 
 
            promotable positions available to her, but rather demoted 
 
            her to a lower paying less strenuous job that claimant has 
 
            sustained a significant injury and a substantial loss of 
 
            earning capacity.  Claimant is foreclosed from the heavy 
 
            work which she previously performed for higher wages.  
 
            Michael v. Harrison County, Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 218, 220 (App. Dec. January 
 
            30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).
 
            
 
                 At age 39, at the time of the injury, and age 42 at the 
 
            time of the hearing, it can be stated that claimant's 
 
            disability occurred at the peak point in her earnings career 
 
            which increases claimant's industrial disability, Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (App. Dec. 1989).
 
            
 
                 Claimant has a high school education but her employment 
 
            background is strictly manual work and production work.  She 
 
            is now limited from performing heavy work.
 
            
 
                 Employer has accommodated claimant by continuing to 
 
            find work for her within her capabilities and there is no 
 
            indication that her job was in jeopardy.  Employer should be 
 
            commended for this and their accommodation does 
 
            significantly decrease the amount of claimant's industrial 
 
            disability. 
 
            
 
                 At the same time, the fact that claimant has been able 
 
            to continue her employment with employer will not transfer 
 
            nor translate to the competitive labor market as a whole, 
 
            Hartwig v. Bishop Implement Company, IV Iowa Industrial 
 
            Commissioner Report, 159 (app. dec. 1984).  It is not likely 
 
            that other employers in the competitive labor market would 
 
            find claimant as employable as this employer has done 
 
            following two industrial shoulder injuries and bilateral 
 
            carpal tunnel surgery.  Todd v. Department of General 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Services, Buildings and Grounds, IV Industrial Commissioner 
 
            Report 373 (1983).  
 
            
 
                 Wherefore, (1) based upon claimant's left shoulder 
 
            injury which was diagnosed as impingement syndrome and 
 
            chronic tendonitis of the left shoulder and arthritis of the 
 
            acromioclavicular joint of the left shoulder following seven 
 
            years of repetitive work with her hands, arms and shoulders 
 
            for employer, (2) based on the fact that claimant had left 
 
            shoulder surgery which removed the distal end of her 
 
            clavicle, the anterior and inferior aspect of the acromion 
 
            and that the coracoacromial ligament was excised, (3) based 
 
            upon the fact that claimant has sustained 5 percent 
 
            permanent impairment to the upper extremity, which converts 
 
            to 3 percent of the body as a whole, (4) based upon the fact 
 
            that employer has also demoted claimant to a lesser paying 
 
            job, and that claimant's supervisor thought that she was 
 
            unable to do the cutter job and the floor inspector job 
 
            because of her physical limitations due to this injury and 
 
            surgery, and therefore claimant is foreclosed from heavy 
 
            work and any known promotable jobs with employer at this 
 
            time, (5) considering that claimant has sustained an actual 
 
            loss of earnings of 15 cents per hour which amounts to $6 a 
 
            week and $312 a year, ***** (6) considering that claimant's 
 
            limitations are being accommodated by employer and that 
 
            these accommodations are not transferable to the competitive 
 
            job market, (7) based upon all the evidence in this case and 
 
            (8) based upon all the factors used to determine industrial 
 
            disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 
 
            3 State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (App. Dec. February 28, 1985) and Christensen v. Hagen, 
 
            Inc., vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (App. Dec. March 26, 1985), and applying 
 
            agency expertise [Iowa Administrative Procedure Act 17 
 
            A.14(5)] it is determined that claimant has sustained a 20 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 100 weeks permanent partial disability benefits.
 
            
 
                                 CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed August 16, 1993 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of August 8, 1989, was the cause of 
 
            permanent disability, Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 296, 
 
            18 N.W.2d 607 (1945).  
 
            
 
                 That claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of permanent partial disability benefits, Iowa Code 
 
            section 85.34(2)(u).  
 
            
 
                 *****It is determined that there is no liability on the 
 
            part of the Second Injury Fund of Iowa pursuant to Iowa Code 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            section 85.63.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant-employer pay to claimant one hundred 
 
            (100) weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred forty-five and 35/100 dollars 
 
            ($145.35) per week in a total amount of fourteen thousand 
 
            five hundred thirty-five dollars ($14,535) commencing on 
 
            December 4, 1990 as stipulated to by the parties.
 
            
 
                 That defendants are entitled to a credit for twelve 
 
            point five (12.5) weeks of permanent partial disability 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            one hundred forty-nine and 94/100 dollars ($149.94) per week 
 
            in the total amount of one thousand eight hundred 
 
            seventy-four and 25/100 dollars ($1,874.25).
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the foregoing benefits are to be paid in a lump 
 
            sum.
 
            
 
                 That the costs of this action are charged to 
 
            defendant-employer pursuant to rule 343 IAC 4.33 and Iowa 
 
            Code sections 86.19(1) and 86.40.
 
            
 
                 That defendant-employer should reimburse the State of 
 
            Iowa for the 50 percent of the transcript which was paid by 
 
            the state prior to this decision.
 
            
 
                 That defendant-employer file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jacob J. Peters
 
            Attorney at Law
 
            P.O. Box 1078
 
            Council Bluffs, IA  51502
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Stephen Moline
 
            Assistant Attorney General
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Tort Claims Division 
 
            Hoover State Office Building
 
            Des Moines, IA  50319
 
            
 
            
 
 
         
 
 
 
 
 
                                                5-1108, 1803.1, 5-1803
 
                                                Filed February 25, 1994
 
                                                Byron K. Orton
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         SUSAN R. HAFFNER,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 955542
 
         ELECTRICAL SYSTEMS,   
 
                                                    A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         WAUSAU INSURANCE COMPANY,       
 
                     
 
              Insurance Carrier,    
 
                    
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         5-1108
 
         The treating orthopaedic surgeon provided causal connection of 
 
         the injury to the permanent disability.
 
         
 
         1803.1
 
         The injury was determined to be to the body as a whole.  The 
 
         decision approaches the issue from the point of view of the body 
 
         parts affected using Gray's Anatomy.  All of the body parts that 
 
         were the subject to the surgery were on the body side of the 
 
         gleno-humeral joint and the impairment was to these body parts.  
 
         None of the parts of the arm appeared to be injured or 
 
         permanently affected by this injury.  Even though some arm 
 
         symptoms were noted, especially early on, the injury ultimately 
 
         extended to the shoulder and the body as a whole and claimant was 
 
         entitled to industrial disability.  Alm v. Morris Barick, Dailey 
 
         v. Pooley.
 
         
 
         5-1803
 
         Claimant was age 40, high school education, employment background 
 
         of manual work and production work, was foreclosed from heavy 
 
         work and also was demoted to job that was 15 cents less per hour.  
 
         The only permanent impairment rating was five percent to the left 
 
         upper extremity.  Employer accommodated claimant but these 
 
         accommodations will not transfer to the competitive labor market.  
 
         Claimant awarded 20 percent industrial disability.
 
         
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SUSAN R. HAFFNER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 955542
 
            ELECTRICAL SYSTEMS,           :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA    :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Susan R. 
 
            Haffner, claimant, against Electrical Systems, employer, 
 
            Wausau Insurance Company, insurance carrier, and Second 
 
            Injury Fund of Iowa, defendants for benefits as the result 
 
            of an injury which occurred on August 8, 1989.  A hearing 
 
            was held in Des Moines, Iowa, on March 18, 1993, and the 
 
            case was fully submitted at the close of the hearing.  
 
            Claimant was represented by Jacob J. Peters.  
 
            Defendant-employer was represented by Matthew Grotnes.  
 
            Second Injury Fund of Iowa was represented by Stephen 
 
            Moline.  The record consists of the testimony of Susan R. 
 
            Haffner, claimant, Shirley M. Boswell, supervisor, and joint 
 
            exhibits 1 through 18.  All three attorneys submitted 
 
            excellent post-hearing briefs.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of disability to 
 
            which she is entitled, to include whether claimant sustained 
 
            a scheduled member injury or an injury to the body as a 
 
            whole.  
 
            
 
                 Whether the Second Injury Fund of Iowa is liable for 
 
            any benefits, and if so, the extent of benefits for which 
 
            they are liable.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 It is determined that the injury of August 8, 1989 was 
 
            the cause of permanent disability.
 
            
 
                 It is determined that the injury of August 8, 1989 was 
 
            an injury to the body as a whole.
 
            
 
                 It is determined that claimant has sustained a 20 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 75 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 It is determined that since the injury is to the body 
 
            as a whole that the Second Injury Fund is not liable for any 
 
            benefits to claimant.
 
            
 
                 Claimant, born June 29, 1950, (Exhibit 15, page 31) was 
 
            39 years old at the time of the injury and 42 years old at 
 
            the time of the hearing.  Claimant started to work for 
 
            employer on March 20, 1986 and she continued to work for 
 
            employer at the time of the hearing which is a period of 
 
            seven years (Ex. 14, p. 1).  Personnel records show that she 
 
            has been employed as a laborer, inspector, and an assembly 
 
            person (Ex. 14, pp. 1-38).  When she applied for employment 
 
            with employer she indicated that she did not have any 
 
            physical condition which might limit her ability to perform 
 
            the particular job for which she was applying.  She 
 
            indicated she did not have any physical defects which 
 
            precluded her from performing any kind of work.  She agreed 
 
            to undergo a preemployment physical examination (Ex. 14, p. 
 
            35).  Subsequent to her employment with employer she did 
 
            sustain bilateral carpal tunnel syndrome and a bilateral 
 
            carpal tunnel release was performed on April 11, 1988 (Ex. 
 
            15, p. 1).
 
            
 
                 Claimant's prior employments were basically production 
 
            work which required extensive use of her hands, arms and 
 
            shoulders.  These employments included a sewing factory, 
 
            ball bearing plant, pork plant, beef plant, waitressing, 
 
            cooking, and extensive production work for employer (Ex. 14, 
 
            pp. 33-37; Tran. pp. 19-37; Ex. 9, p. 3).
 
            
 
                 Claimant had previously injured her right shoulder 
 
            working for another employer.
 
            
 
                 Claimant reported that this injury to her left shoulder 
 
            occurred as follows:  "I was inspector back in the cutting 
 
            area and the terminators at that time, and I went to reach 
 
            for a part, and my shoulder caught and sent a pain down 
 
            through my shoulder over into my chest (indicating) (Tran., 
 
            pp. 38 & 39).
 
            
 
                 Claimant testified that she had never experienced a 
 
            pain like this before.  She reported it to her supervisor.  
 
            Claimant was sent to see a local doctor, Stephen B. Gruba, 
 
            M.D., (Tran., p. 40).  Claimant averred that the pain which 
 
            she felt was in her shoulder and not in her arm (Tran., p. 
 
            40).   Dr. Gruba's records reflect that he first saw 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant for a shoulder injury on September 19, 1988.  Dr. 
 
            Gruba reported as follows:  
 
            
 
                    "On 9-9-88, during her regular shift, she 
 
                 essentially tried to see how hard she could work 
 
                 and how many units she could do in an eight hour 
 
                 shift.  She is expected to do about 160 and ended 
 
                 about doing about 1200.  ... The day after this 
 
                 extra exertion, she had aching pain into the left 
 
                 shoulder, the left elbow and left wrist area." 
 
            
 
                 (Ex. 16, p. 2).  
 
            
 
                 Dr. Gruba diagnosed overuse syndrome with mild 
 
            tendonitis.  Claimant continued to have trouble with her 
 
            left arm and Dr. Gruba ordered an EMG (Ex. 16, p. 2) which 
 
            showed slight improvement from the EMG, which was taken at 
 
            the time of the carpal tunnel surgeries (Ex. 17, p. 6).
 
            
 
                 Claimant continued to see Dr. Gruba on February 9, 
 
            1990, March 2, 1990, May 29, 1990 and June 6, 1990 (Ex. 16, 
 
            p. 3).  On the latter date, Dr. Gruba recorded that claimant 
 
            had a catching type of pain in her left shoulder when she 
 
            moves her arm up and then back (Ex. 16, p. 3).  She was not 
 
            improved on June 13, 1990 (Ex. 16, p. 4).  Dr. Gruba then 
 
            referred claimant to Michael J. Morrison, M.D., an 
 
            orthopedic surgeon who was also a sports medicine specialist 
 
            (Tran., pp. 40 & 43).  
 
            
 
                 Dr. Morrison reported on June 20, 1990, "39 year old 
 
            white female who was stretching some wire harnesses at work 
 
            which required repetitive use of her shoulders, elbows and 
 
            hands and she developed left shoulder pain." (Ex. 4, p. 1).  
 
            Dr. Morrison diagnosed tendonitis left shoulder.  He 
 
            prescribed medications and physical therapy.  On July 10, 
 
            1990, Dr. Morrison gave a cortisone injection (Ex. 3, p. 4).  
 
            On August 14, 1990, Dr. Morrison reported:
 
            
 
                    Susan's work requires her to use her left arm 
 
                 overhead and constantly be reaching.  She has been 
 
                 treated for the impingement syndrome with a local 
 
                 cortisone injection which gave her only temporary 
 
                 relief.  She is wishing to consider further 
 
                 surgical intervention that consists of an 
 
                 acromioplasty of her left shoulder to try to 
 
                 eliminate the impingement and she will call for 
 
                 possible surgical scheduling.
 
            
 
                 (Ex. 4, p. 5)
 
            
 
                 On September 11, 1990, Dr. Morrison found some crepitus 
 
            and popping of the left shoulder with abduction and rotation 
 
            which was not present in the right shoulder (Ex. 4, p. 6).  
 
            
 
                 Claimant consented to surgery which was performed on 
 
            October 8, 1990.
 
            
 
                 At the time of claimant's admission to the hospital Dr. 
 
            Morrison summarized the history and attributes it to 
 
            claimant's work.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                    This is a 40-year-old white female whose job 
 
                 requires excessive lifting, especially overhead.  
 
                 She has developed a rather chronic impingement 
 
                 syndrome with supraspinatous tendonitis, not 
 
                 responding to local cortisone injections, 
 
                 anti-inflammatory medications, restricted 
 
                 activities, and physical therapy.
 
            
 
                 (Ex. 5, p. 1)
 
            
 
                 The supaspinatous muscle extends from the upper part of 
 
            the scapula to the humerus and is primarily a part of the 
 
            body as a whole.
 
            
 
                 He said the x-ray showed mild changes involving the AC 
 
            joint.  His physical examination disclosed left shoulder 
 
            tenderness over the AC joint and the subacromial bursa.  He 
 
            diagnosed (1) impingement syndrome, left shoulder and (2) 
 
            chronic supraspinatous tendonitis, left shoulder (Ex. 5, p. 
 
            1).
 
            
 
                 The AC (acromioclavicular) joint and subacromial bursa 
 
            are parts of the body as a whole and not the arm.
 
            
 
                 At the time of the surgery the operative report shows 
 
            that Dr. Morrison diagnosed (1) impingement, left shoulder 
 
            with chronic tendonitis, (2) arthritis, acromioclavicular 
 
            joint, left shoulder.  The procedure that was carried out 
 
            was (1) resection of the distal end of the left clavicle and 
 
            (2) acromioplasty, left shoulder, with release of 
 
            coracoacromial ligament (Ex. 4, p. 2, &  Ex. 6, p. 1).  
 
            
 
                 The clavicle and coracoacromial ligament are parts of 
 
            the body as a whole.
 
            
 
                 The operative note further discloses that the distal 
 
            end of the clavicle was removed, the anterior and inferior 
 
            aspect of the acromion was removed, as well as the 
 
            coracoacromial ligament.  The rotator cuff was inspected but 
 
            there was no evidence of a tear.  There was slight 
 
            degeneration over the greater tuberosity.  
 
            
 
                 The surgery was confined to parts of the body which are 
 
            considered to be parts of the body as a whole.
 
            
 
                 The gleno-humeral joint is the dividing line between 
 
            the arm and the body at the shoulder joint.  Parts of the 
 
            body distal to that joint are the arm.  Parts of the body 
 
            proximal to that joint belong to the body as a whole.  The 
 
            gleno-humeral joint is where the head of the humerus forms a 
 
            socket (or joint) with the gleno-cavity of the scapula.  The 
 
            parts of the arm in that vicinity are the greater 
 
            tuberosity, lesser tuberosity and bicipital grove.  Parts of 
 
            the body as a whole in that vicinity are the acromiam 
 
            process the clavicle and the coracoid process.  The parts of 
 
            the body that were subject to the surgery were all parts of 
 
            the body as a whole.
 
            
 
                 Although it was speculated that claimant had bicipital 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            tendonitis and that she felt pain over the greater 
 
            tuberosity; nevertheless, the surgical diagnosis by the 
 
            orthopedic surgeon was impingement of the left shoulder with 
 
            chronic tendonitis and arthritis of the acromioclavicular 
 
            joint of the left shoulder.  The acromioclavicular joint is 
 
            a part of the body as a whole and not part of the arm.  
 
            
 
                 The parts of the body excised or removed were members 
 
            of the body as a whole, more specifically, the distal end of 
 
            the clavicle, the anterior and inferior aspect of the 
 
            acromion and the coracoacromial ligament, which are parts of 
 
            the body as a whole.  None of these body parts are parts of 
 
            the arm.
 
            
 
                 Gray's Anatomy, page 134, defines the upper extremity 
 
            as follows:  "The bones of the upper extremity consist of 
 
            those of the shoulder girdle, of the arm, the forearm, and 
 
            the hand."  Thus, in medical terms the upper extremity 
 
            extends from the tips of the fingers through the shoulder 
 
            girdle.  This terminology of the upper extremity is further 
 
            verified by the Guides to the Evaluation of Permanent 
 
            Impairment, 3rd Edition (Revised) published by the American 
 
            Medical Association, on page 15, figure 2, where it shows 
 
            the upper extremity to be the entire arm and the shoulder 
 
            girdle.  This is why physicians rate arm injuries in terms 
 
            of the upper extremity.  Likewise, they also rate shoulder 
 
            injuries in terms of the upper extremity.  Therefore, an 
 
            upper extremity rating requires closer analysis.
 
            
 
                 At the same time the Iowa Workers' Compensation Law 
 
            does not have any benefit entitlement for a disability, loss 
 
            or loss of use to the upper extremity.  The words upper 
 
            extremity are not used anywhere in the workers' compensation 
 
            law or more particularly in Iowa Code section 85.34(2).  
 
            
 
                 The workers' compensation law awards a benefit for 
 
            disability, loss or loss of use to the arm.  Iowa Code 
 
            section 85.34(2)(m).  Any other disability, loss or loss of 
 
            use other than one of the scheduled members shown in 
 
            subparagraphs a through t are awarded under Iowa Code 
 
            section 85.34(2)(u) "in relation to five hundred weeks as 
 
            the disability bears to the body of the injured employee as 
 
            a whole."  
 
            
 
                 Gray's Anatomy, page 144, further defines the arm as 
 
            follows:  "The arm is that portion of the upper extremity 
 
            which is situated between the shoulder and the elbow.  Its 
 
            skeleton consists of a single bone, the humerus.  
 
            
 
                 Gray's Anatomy, page 150, defines the forearm as 
 
            follows:  "The forearm is that portion of the upper 
 
            extremity which is situated between the elbow and the wrist.  
 
            Its skeleton is composed of two bones, the ulna and radius."
 
            
 
                 For workers' compensation purposes the arm is 
 
            constituted by the skeletal bones of the humerus, ulna and 
 
            radius.  
 
            
 
                 None of these bones or surrounding tissue was 
 
            determined to be injured by either Dr. Gruba or Dr. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Morrison.
 
            
 
                 In workers' compensation terms the hand is provided for 
 
            in Iowa Code section 85.34(2)(l).
 
            
 
                 The shoulder, and more particularly the acromion, 
 
            clavicle and coracoid process, are not a part of the arm, 
 
            because they are proximal to the gleno-humeral joint are 
 
            considered to be parts of the body as a whole for which 
 
            benefits are awarded under Iowa Code section 85.34(2)(u).  
 
            
 
                 In Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 
 
            N.W.2d 161, (1949) defendants contended that a shoulder 
 
            injury was an injury to the arm.  The supreme court 
 
            disagreed, citing Dailey v. Pooley Lumber Company, 233 Iowa 
 
            758, 763, 765, 10 N.W.2d 569, 573(1943) and stated that 
 
            defendants' assumption that an injury to a shoulder is a 
 
            scheduled member injury is unwarranted.  The court said that 
 
            the arm section of the Code does not apply to the shoulder, 
 
            nor is the shoulder designated as a scheduled member in any 
 
            other section of the Code.  Alm, at page 1177. 
 
            
 
                 Dailey v. Pooley held at page 765 that where the injury 
 
            is to a scheduled member, and also to parts of the body not 
 
            included in the schedule, then the resultant permanent 
 
            disability, if established, is compensable as an injury to 
 
            the body as a whole.
 
            
 
                 Thus, even though claimant may have expressed some arm 
 
            complaints, nevertheless, she was diagnosed as having a 
 
            shoulder injury.  The parts of the arm in the shoulder joint 
 
            (socket) were not determined to be injured or disabled.  The 
 
            major arm part is the head of the humerus which consists of 
 
            the greater tuberosity, lesser tuberosity and the bicipital 
 
            groove.  The injury, the impairment, the loss, the loss of 
 
            use, the permanent disability all occurred to parts of the 
 
            body as a whole.  Thus, even if parts of the arm were 
 
            considered to be injured, which they were not, claimant 
 
            would still be determined to have sustained an injury to the 
 
            body as a whole because the injury and disability extended 
 
            beyond the scheduled member to the body as a whole under the 
 
            rule in the Dailey case.
 
            
 
                 Dr. Morrison assessed that claimant sustained a 5 
 
            percent permanent impairment to the upper extremity (Ex. 2, 
 
            p. 1 & Ex. 3, p. 2).  This converts to 3 percent of the body 
 
            as a whole.  Guides to the Evaluation of Permanent 
 
            Impairment, 3rd Edition (Revised) Table 3, page 16.  
 
            
 
                 He specifically states that this is "Status post op 
 
            acromioplasty left shoulder with resection distal end of the 
 
            left clavicle," (Ex. 3, p. 2).  
 
            
 
                 Therefore, the operating and treating orthopedic 
 
            surgeon specifically relates this permanent impairment to 
 
            the resection of the distal end of the clavicle which is 
 
            unquestionably a part of the body as a whole.  Furthermore, 
 
            so are the acromion and the coracoid process.  Therefore, 
 
            the permanent impairment in this case is to the parts of the 
 
            body as a whole.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 The surgery did not touch any of the parts of the arm.  
 
            The arm parts were not injured and were not operated upon 
 
            and they are not mentioned in the determination of the 
 
            permanent impairment rating.
 
            
 
                 Although, Dr. Morrison has previously attributed the 
 
            causal connection to claimant's work, he also provides the 
 
            necessary causal connection again in his letter of April 12, 
 
            1991:  "In regards to causation, it would be my feeling that 
 
            if she used her arms excessively overhead, it would have 
 
            been a contributing factor to the development of her 
 
            problems." (Ex. 3, p. 2).  However, back on August 14, 1990, 
 
            Dr. Morrison stated that this was the fact of the matter in 
 
            this case.  He said, "Susan's work requires her to use her 
 
            left arm overhead and constantly be reaching." (Ex. 4, p. 
 
            5).  On the day of the surgery he further stated "This is a 
 
            40-year-old white female whose job requires excessive 
 
            lifting, especially overhead." (Ex. 5, p. 1).  Therefore, 
 
            Dr. Morrison attributes the impairment and disability to 
 
            claimant's employment.
 
            
 
                 Claimant testified that when she returned to work that 
 
            she was demoted.  Previously she had been earning $5.95 per 
 
            hour and she was transferred to a job which paid $5.80 per 
 
            hour.  This is a difference of 15 cents per hour in actual 
 
            earnings.  Between the time of her return to work at 
 
            approximately age 40 and the time of her retirement at the 
 
            normal retirement age of 65 years, this could constitute an 
 
            actual earnings loss of several thousand dollars (Tran., p. 
 
            46 & 47; Ex. 6, p. 14 & Ex. 10, p. 6) in addition to the 
 
            loss of future earnings from inability to be advanced or 
 
            promoted.
 
            
 
                 Claimant testified that the manager of the company told 
 
            her on one occasion that she was demoted because she had a 
 
            written warning of some kind.  Claimant told the manager 
 
            that she had not received a written warning.  The manager 
 
            checked into it and came back and told claimant that she was 
 
            demoted because when she asked for a promotion the company 
 
            considered that she did not like her job as an inspector and 
 
            therefore demoted her.  Claimant testified as follows: "... 
 
            --- the reason I asked to be on a cutter job is because it 
 
            paid more, and he said, 'well, we just figured you weren't 
 
            satisfied with your job as inspector, so we put you over 
 
            here on line inspector.'" (Tran., p. 49)
 
            
 
                 Claimant's testimony was not contradicted, 
 
            controverted, rebutted or refuted by employer, even though 
 
            claimant's supervisor, Shirley Boswell, was in the courtroom 
 
            and testified and Deb Andrews the personnel representative 
 
            was also in the courtroom but did not testify.
 
            
 
                 Shirley Boswell, an 11-year employee of employer, 
 
            testified that she is the assembly supervisor and also 
 
            claimant's supervisor, that she has known and observed 
 
            claimant for approximately seven years.  Boswell testified:  
 
            "I feel like Susie's an excellent employee.  She does her 
 
            job.  She does her job well.  She's dependable." (Tran., p. 
 
            76).  Boswell added that claimant works overtime when 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            requested to do so, that she is a senior person on her line 
 
            and that she takes responsibility for it and sees to it that 
 
            it runs smoothly.
 
            
 
                 Boswell further testified that claimant performed her 
 
            job without making any complaints of physical problems, 
 
            except occasionally (Tran., pp. 81 & 6).
 
            
 
                  Boswell agreed that claimant was demoted (Tran., p. 
 
            88) but she did not believe that claimant could do the 
 
            cutter job that she applied for because that would be heavy 
 
            lifting (Tran., p. 88).  Boswell did not think claimant 
 
            could perform the floor inspector job that she had done 
 
            previously because it too required some heavy lifting 
 
            (Tran., p. 89-92).  Thus, even though Dr. Morrison did not 
 
            impose any permanent restrictions on claimant, nevertheless, 
 
            her supervisor, Boswell, testified that she is not 
 
            physically able to perform the two jobs that she could 
 
            possibly be promoted to because of her physical limitations.  
 
            Thus, claimant's earnings capacity has been reduced two ways 
 
            (1) she has an actual earnings loss which is real and (2) 
 
            she has a future earnings loss because she is not 
 
            promotable.
 
            
 
                 It was Boswell's opinion that claimant was demoted from 
 
            floor inspector to line inspector because employer did not 
 
            feel she was able to perform the floor inspector job but 
 
            that she could perform the less active job of line 
 
            inspector.  This was not in claimant's personnel file but 
 
            this was Boswell's opinion on the matter by way of sworn 
 
            testimony (Tran., pp. 83 & 84).
 
            
 
                 Boswell, the only witness for employer, had no 
 
            explanation for the temporal relationship between claimant's 
 
            injury and surgery, and the demotion to a lesser paying job 
 
            (Tran., p. 85).  Deb Andrews, the personnel representative 
 
            did not testify (Tran., p. 87).
 
            
 
                 One of the exhibits is a letter from the division 
 
            manager to claimant dated January 10, 1990, which reads as 
 
            follows:  "Deb Andrews has told me that you have had perfect 
 
            attendance for October through December of this year.  I 
 
            want you to know how much I appreciate that.  This sort of 
 
            dedication to your work is what helps make Electrical 
 
            Systems a successful business." (Ex. 14, p. 15).  
 
            
 
                 Thus, it must be concluded that if claimant is a good 
 
            employee but they were unable to place her in the two 
 
            promotable positions available to her, but rather demoted 
 
            her to a lower paying less strenuous job that claimant has 
 
            sustained a significant injury and a substantial loss of 
 
            earning capacity.  Claimant is foreclosed from the heavy 
 
            work which she previously performed for higher wages.  
 
            Michael v. Harrison County, Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 218, 220 (App. Dec. January 
 
            30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).
 
            
 
                 At age 39, at the time of the injury, and age 42 at the 
 
            time of the hearing, it can be stated that claimant's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disability occurred at the peak point in her earnings career 
 
            which increases claimant's industrial disability, Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (App. Dec. 1989).
 
            
 
                 Claimant has a high school education but her employment 
 
            background is strictly manual work and production work.  She 
 
            is now limited from performing heavy work.
 
            
 
                 Employer has accommodated claimant by continuing to 
 
            find work for her within her capabilities and there is no 
 
            indication that her job was in jeopardy.  Employer should be 
 
            commended for this and their accommodation does 
 
            significantly decrease the amount of claimant's industrial 
 
            disability. 
 
            
 
                 At the same time, the fact that claimant has been able 
 
            to continue her employment with employer will not transfer 
 
            nor translate to the competitive labor market as a whole, 
 
            Hartwig v. Bishop Implement Company, IV Iowa Industrial 
 
            Commissioner Report, 159 (app. dec. 1984).  It is not likely 
 
            that other employers in the competitive labor market would 
 
            find claimant as employable as this employer has done 
 
            following two industrial shoulder injuries and bilateral 
 
            carpal tunnel surgery.  Todd v. Department of General 
 
            Services, Buildings and Grounds, IV Industrial Commissioner 
 
            Report 373 (1983).  
 
            
 
                 Wherefore, (1) based upon claimant's left shoulder 
 
            injury which was diagnosed as impingement syndrome and 
 
            chronic tendonitis of the left shoulder and arthritis of the 
 
            acromioclavicular joint of the left shoulder following seven 
 
            years of repetitive work with her hands, arms and shoulders 
 
            for employer, (2) based on the fact that claimant had left 
 
            shoulder surgery which removed the distal end of her 
 
            clavicle, the anterior and inferior aspect of the acromion 
 
            and that the coracoacromial ligament was excised, (3) based 
 
            upon the fact that claimant has sustained 5 percent 
 
            permanent impairment to the upper extremity, which converts 
 
            to 3 percent of the body as a whole, (4) based upon the fact 
 
            that employer has also demoted claimant to a lesser paying 
 
            job, and that claimant's supervisor thought that she was 
 
            unable to do the cutter job and the floor inspector job 
 
            because of her physical limitations due to this injury and 
 
            surgery, and therefore claimant is foreclosed from heavy 
 
            work and any known promotable jobs with employer at this 
 
            time, (5) considering that claimant has sustained an actual 
 
            loss of earnings of 15 cents per hour which amounts to $6 a 
 
            week and $312 a year and in her normal working life 
 
            expectancy of approximately 25 more years after the injury 
 
            to age 65, this would amount to $7,800 in actual earnings, 
 
            (6) considering that claimant's limitations are being 
 
            accommodated by employer and that these accommodations are 
 
            not transferable to the competitive job market, (7) based 
 
            upon all the evidence in this case and (8) based upon all 
 
            the factors used to determine industrial disability, 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. 
 
            February 28, 1985) and Christensen v. Hagen, Inc., vol. I, 
 
            no. 3, State of Iowa Industrial Commissioner Decisions 529 
 
            (App. Dec. March 26, 1985), and applying agency expertise 
 
            [Iowa Administrative Procedure Act 17 A.14(5)] it is 
 
            determined that claimant has sustained a 20 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 100 weeks permanent partial disability benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of August 8, 1989, was the cause of 
 
            permanent disability, Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 296, 
 
            18 N.W.2d 607 (1945).  
 
            
 
                 That claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of permanent partial disability benefits, Iowa Code 
 
            section 85.34(2)(u).  
 
            
 
                 That since claimant has sustained an injury to the body 
 
            as a whole she has not proven that she is entitled to any 
 
            benefits from the Second Injury Fund of Iowa and it is 
 
            determined that there is no liability on the part of the 
 
            Second Injury Fund of Iowa pursuant to Iowa Code section 
 
            85.63.
 
            
 
                           
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                           ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant-employer pay to claimant one hundred 
 
            (100) weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred forty-five and 35/100 dollars 
 
            ($145.35) per week in a total amount of fourteen thousand 
 
            five hundred thirty-five dollars ($14,535) commencing on 
 
            December 4, 1990 as stipulated to by the parties.
 
            
 
                 That defendants are entitled to a credit for twelve 
 
            point five (12.5) weeks of permanent partial disability 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            one hundred forty-nine and 94/100 dollars ($149.94) per week 
 
            in the total amount of one thousand eight hundred 
 
            seventy-four and 25/100 dollars ($1,874.25).
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the foregoing benefits are to be paid in a lump 
 
            sum.
 
            
 
                 That the costs of this action are charged to 
 
            defendant-employer pursuant to rule 343 IAC 4.33 and Iowa 
 
            Code sections 86.19(1) and 86.40.
 
            
 
                 Furthermore, defendant-employer should reimburse the 
 
            State of Iowa for the 50 percent of the transcript which was 
 
            paid by the state prior to this decision.
 
            
 
                 That defendant-employer file claim activity reports as 
 
            request by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Jacob J. Peters
 
            Attorney at Law
 
            233 Pearl Street, PO Box 1078
 
            Council Bluffs, IA  51502
 
            
 
            Mr. Matthew Grotnes
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue, #111
 
            Des Moines, IA  50312
 
            
 
            Mr. Stephen Moline
 
            Assistant Attorney General
 
            Tort Claims Division 
 
            Hoover Office Building
 
            Des Moines, IA   50319
 
 
 
 
            
 
            
 
            
 
                                              51108, 1803.1, 51803
 
                                              Filed August 16, 1993
 
                                              Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SUSAN R. HAFFNER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 955542
 
            ELECTRICAL SYSTEMS,           :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA    :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51108
 
            The treating orthopaedic surgeon provided causal connection 
 
            of the injury to the permanent disability.
 
            
 
            1803.1
 
            The injury was determined to be to the body as a whole.  The 
 
            decision approaches the issue from the point of view of the 
 
            body parts affected using Gray's Anatomy.  All of the body 
 
            parts that were the subject to the surgery were on the body 
 
            side of the gleno-humeral joint and the impairment was to 
 
            these body parts.  None of the parts of the arm appeared to 
 
            be injured or permanently affected by this injury.  Even 
 
            though some arm symptoms were noted, especially early on, 
 
            the injury ultimately extended to the shoulder and the body 
 
            as a whole and claimant was entitled to industrial 
 
            disability.  Alm v. Morris Barick, Dailey v. Pooley.
 
            
 
            51803
 
            Claimant was age 40, high school education, employment 
 
            background of manual work and production work, was 
 
            foreclosed from heavy work and also was demoted to job that 
 
            was 15 cents less per hour.  The only permanent impairment 
 
            rating was 5 percent to the left upper extremity.  Employer 
 
            accommodated claimant but these accommodations will not 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            transfer to the competitive labor market.  Claimant awarded 
 
            20 percent industrial disability.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
SCOTT LEE PARKER,  
 
                                   File No. 955586
 
     Claimant, 
 
                                A R B I T R A T I O N
 
vs.       
 
                                   D E C I S I O N
 
OSCAR MAYER FOODS CORP.,     
 
          
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
___________________________________________________________
 
                         STATEMENT OF THE CASE
 
 
 
This is an arbitration proceeding which was filed by Scott Parker, 
 
claimant, against his former employer, Oscar Mayer & Company, 
 
self-insured employer, defendant.  The case was heard on February 21, 
 
1995 at the United States Courthouse in Davenport, Iowa.  The record 
 
consists of the testimony of claimant.  The record also consists of the 
 
testimony of claimant's mother, Caroline Parker.  Additionally, the 
 
record consists of exhibits 1-5.
 
 
 
                       STATEMENT OF THE ISSUE
 
 
 
The sole issue in this proceeding is:  the nature and extent of any 
 
permanent partial disability, if any.
 
 
 
                         FINDINGS OF FACT
 
 
 
On the date of the work injury, (July 28, 1990), claimant was working 
 
for defendant.  He had been assigned to the duties involved in heating 
 
glue.  The glue was kept in huge buckets and the buckets were then 
 
placed on shelves in a kiln in order to heat the product.  Claimant was 
 
attempting to remove a bucket of heated glue from the kiln.  The lid 
 
was not secured tightly and heated glue spilled onto claimant's right 
 
arm, wrist and hand.  Claimant ran over to the faucet and attempted to 
 
wash the glue from his arm.  Claimant yelled for assistance and a 
 
co-employee rushed to claimant's side.
 
 
 
Initially, claimant was treated at the plant health clinic.  He was 
 
then taken to Mercy Hospital where he was treated and transferred to 
 
the burn unit at Franciscan Hospital in Rock Island.  According to 
 
exhibit 3, claimant's wound was cleaned, debrided and dressed with 
 
scarlet red and Silvadene.
 
 
 
Exhibit 1 consisted of four photographs of claimant's right forearm, 
 
wrist and hand.  The wounds extended from above the elbow to the middle 
 
of claimant's right wrist and into the thumb area.
 
 
 
The wound healed but claimant experienced pain at the elbow and wrist 
 
area.  Claimant complained of pain with full extension of the elbow and 
 
with ulnar deviation of the wrist.  (Exhibit 3) Physical therapy was 
 
prescribed.
 
 
 
Michael P. Durr, M.D., a burn surgeon, was designated the authorized 
 
treating physician.  Because claimant was developing scar tissue, Dr. 
 
Durr referred claimant to a local plastic surgeon, Michael C. 
 
Ferdinands, M.D.
 
 
 
Dr. Ferdinands opined the following relative to claimant's condition in 
 
May of 1991:
 
   
 
   This is in reference to Scott Parker.  Scott has a hypertrophied 
 
scar of the right forearm following a burn he sustained in July 1990.  
 
The scar is thickened and irritated and is uncomfortable to the 
 

 
 
 
 
 
 
 
 
 
patient.  He will need to have the scar removed and will require two 
 
tissue expanders inserted in the forearm and wrist area.  This will 
 
incapacitate him from using the right hand other than taking care of 
 
himself for the four weeks that the expander will be inserted and 
 
during the expansion process.  Following removal of the expanders 
 
anywhere from 4 to 6 weeks after the first surgery, and removal of the 
 
scar with advancement of the flaps, this will then prevent him for the 
 
next three weeks during the healing process from using the right arm 
 
for any type of work other than taking care of himself.   (Ex. 1-3)
 
 
 
On May 29, 1991, Dr. Ferdinands then inserted two tissue expanders in 
 
the right forearm and wrist.  The plastic surgeon engaged in follow-up 
 
treatment of claimant.
 
 
 
Several months later, Dr. Ferdinands authored a progress report.  He 
 
opined:
 
   
 
   This is in reference to Scott Parker who had sustained burns to his 
 
right hand.  Most of the keloids on his wrist and forearm have been 
 
removed with tissue expanders, but because of the breakdown of the 
 
expansion, the keloid on his thumb could not be taken out.  This is the 
 
only one that is causing restriction in his full motion of the thumb 
 
and wrist.
 
   
 
   I feel that he will benefit greatly with removal of the keloid with 
 
a W-plasty closure.  This will then allow him to have his full range of 
 
motion with no restriction.  The surgery will be done as an outpatient 
 
under general anesthesia.   (Ex. 1-7)
 
 
 
Claimant desired the removal of the keloid scar.  The surgery occurred 
 
on March 15, 1993.  Dr. Ferdinands performed a "release of contracture 
 
with advancement flap closure partial excision of keloid with rapid 
 
tissue expansion."  (Ex 1-10)
 
 
 
Dr. Ferdinands restricted claimant from working for three weeks.  Then 
 
claimant was assigned to light duty work with full duties allowed after 
 
a period of time.  (Ex. 1-12)
 
 
 
Dr. Ferdinands did not do a permanent impairment rating of claimant.  
 
Rather, Dr. Ferdinands referred claimant to Vijay Verma, M.D.  Dr. 
 
Verma performed the evaluation on November 15, 1993.  In his report of 
 
the same date, Dr. Verma opined:
 
 
 
EXAMINATION
 
   The right upper extremity:  shoulder, elbow functions are completely 
 
within normal range as per AMA Guidelines, this includes the wrist 
 
dorsi-flexion, radial/ulnar deviation within normal range as per AMA 
 
Guidelines.  Movement of the MP joint of the thumb 0-60o is normal, MP 
 
joint 0-80o is normal; finger joint movements within normal range.  MP 
 
joint 0-90o is within normal limits.  Dorsiflexion from neutral 
 
position 60o is normal.  Palmar flexion from neutral 0-70o is normal.  
 
Grasp is 65 lbs., bilaterally.  Radial deviation 0-20o and ulnar 
 
deviation 0-30o within normal limits.  The skin reveals measurements on 
 
the dorsum, approximately one inch lateral to the scaphoid area and 1" 
 
inch up and down, and 1" the volar aspect extending approximately 8 
 
inches by [sic] from the scaphoid 2 inches; this area revealed no 
 
hypertrophy, no evidence of causalgia, mildly altered sensory testing 
 
and pressure was present; joint sensation intact.  There was no 
 
evidence of inflammation, rash and adherence to underlined structures.  
 
Also, in the function, patient's oppenance was intact to all fingers, 
 
this is tip to tip to all fingers from thumb.
 
 
 
IMPRESSION
 
   As for impairment, this falls in class I which is in the range of 
 
0-5% impairment which is in the range of approximately 2o [sic].  Also, 
 
due to no limitations of movements, the hand function is intact.
 
(Ex. 2-1)
 
 
 
Claimant desired an independent medical examination from a physician of 
 
his own choosing.  Claimant was examined by Arthur B. Searle, M.D., on 
 
March 16, 1994.  Dr. Searle is a specialist in physical medicine and 
 

 
 
 
 
 
 
 
 
 
rehabilitation.  The physician opined the following in his report of 
 
March 24, 1994:
 
   
 
   His burn scar has caused pale discoloration of most of his right 
 
forearm.  There is a 2 X 3cm keloid on the lateral aspect of his right 
 
elbow and purple discoloration in a 1 X 2cm area on the radial aspect 
 
of the right wrist.  There is no tenderness or adherence of any of the 
 
scars.  Sensation, pliability and lubrication of these areas of skin 
 
are normal.  The purple scar could be a slight cosmetic problem.
 
   
 
   Muscle bulk is well developed and symmetric in the upper 
 
extremities.  He has normal strength in the elbow flexors and 
 
extensors, the forearm supinators and pronators, the wrist extensors 
 
and the hand grip bilaterally.  He has normal thumb adduction 
 
bilaterally because he can adduct each thumb for enough to touch the 
 
thumb tip against the base of the little finger.  He has normal thumb 
 
opposition because he can move the thumb away from the palm far enough 
 
so that the distance from the distal palmar crease to the 
 
interphalangeal crease of the thumb is 8cm.
 
   
 
   Active wrist radial deviation is 15 degrees bilaterally and active 
 
wrist ulnar deviation is 35 degrees bilaterally.  Active wrist 
 
extension is 85 degrees bilaterally and active wrist flexion is 75 
 
degrees bilaterally.
 
Diagnoses:
 
   
 
   1.  Chronic pain from a scar a year old on the right wrist.
 
   
 
   2.  Slight cosmetic disfigurement from a fresh scar on the right 
 
wrist and an old scar on the right forearm.
 
   
 
   3.  Slight limitation in wrist radial deviation bilaterally with 
 
normal range of motion in the rest of the upper extremities.
 
Discussion:
 
   
 
   Mr. Parker's range of motion is essentially normal.  His main 
 
concern is his pain with activity, but he is able to do all the 
 
activities he would otherwise do.  "An individual who complains of 
 
constant pain, but who has no objectively validated limitations in 
 
daily activities has no impairment". [sic]  Guides to the Evaluation of 
 
Permanent Impairment, IV edition published by the American Medical 
 
Association in 1993 hereafter referred to as Guides.  His pain will 
 
decrease over the next few years as the scar matures, so the client's 
 
pain is not a rating factor for his impairment.
 
   
 
   The cosmetic problem will also decrease as the scar fades.  There is 
 
no indication that the cosmetic problem bothers the client because it 
 
does not limit his academic, vocational and social activities.  He 
 
doesn't need to worry about occupational or other activities causing 
 
worsening of his condition.  No adaptation of his working environment 
 
or restriction of his work activities is needed.  His use of a wrist 
 
band for sports is not significant from the standpoint of an impairment 
 
estimation.
 
 
 
Impairment calculation:
 
   
 
   The only factor that can be used for this client's impairment 
 
calculation is the limitation of radial deviation to 15 degrees 
 
compared to a normal of 20 degrees in both wrists.  A limitation of 
 
radial deviation to 15 degrees is a 1% impairment of each upper 
 
extremity according to figure 29, page 38 of the Guides.  This 
 
corresponds to a whole person impairment of 0.6% in each upper 
 
extremity.  These whole person impairments combine to a whole person 
 
impairment of 1%.  The limitation in the right wrist may not be due to 
 
his burn injury.  The limitation in the left wrist is certainly not due 
 
to the burn.
 
Conclusion:
 
   
 
   As suggested by this whole person impairment rating of 1%, this 
 
client does not have a significant permanent impairment.  There were no 
 
significant inconsistencies among the old records and the client's 
 
history and exam that would raise doubts about the validity of this 
 
impairment estimate.   (Ex. 3-2)
 
 
 
During the hearing, claimant testified concerning the condition of his 
 
right wrist and forearm.  He testified that prior to this work injury, 
 

 
 
 
 
 
 
 
 
 
claimant had experienced no problems with his right wrist and forearm.  
 
 
 
Claimant testified that currently, he has difficulties when he lifts 
 
and lowers his wrist.  He also indicated that when he uses hand tools, 
 
he often has pain as he is twisting and turning the wrist.  Claimant 
 
indicated he feels sensations from his wrist to above the elbow and 
 
that the sensations resemble pin pricks.  Claimant displayed his wrist 
 
and forearm to the deputy industrial commissioner.  The scars were 
 
visible.  They extended from the area of the wrist to the area above 
 
claimant's elbow.  Claimant also testified he had been advised to wear 
 
a wrist band when he experienced pain in his wrist area.
 
 
 
Claimant's mother testified that claimant is required to rub Jobst 
 
lotion on his scars at a minimum of three times per day.  He is advised 
 
to eliminate dry skin in the area of his scars. Claimant has been 
 
compliant.
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
Claimant has the burden of proving that his work injury has resulted in 
 
a permanent impairment.  (Ex. 3 and Ex. 4)
 
 
 
No physician has opined that claimant's wrist and upper extremity is 
 
anything less than normal.  Both Dr. Verma and Dr. Searle have 
 
indicated that claimant's functional capacity is essentially within the 
 
normal ranges.  While Dr. Searle indicates there is the limitation of 
 
radial deviation to 15 degrees, he does not equate the limitation to 
 
claimant's burn injury.  In fact, claimant has this same limitation in 
 
deviation in the left wrist as well.  It is agreed the left wrist was 
 
not involved in the work injury.
 
 
 
It is therefore the determination of the undersigned that claimant has 
 
not proven by a preponderance of the evidence that he has sustained any 
 
permanent partial impairment as a result of the work injury.  Claimant 
 
takes nothing further from these proceedings.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
Claimant takes nothing further from these proceedings.
 
 
 
Each party shall pay its own costs.
 
 
 
Signed and filed this ____ day of March, 1995.         
 
                             _____________________________
 
                             MICHELLE A. McGOVERN          
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Burton H. Fagan
 
Attorney at Law
 
2535 Tech Dr
 
Bettendorf  IA  52722
 
 
 
Ms. Vicki L. Seeck
 
Attorney at Law
 
600 Union Arcade Bldg
 
111 E Third St
 
Davenport  IA  528033
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                5-1800
 
                                Filed March 6, 1995
 
                                MICHELLE A. McGOVERN
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
SCOTT LEE PARKER,  
 
                                    File No. 955586
 
     Claimant, 
 
                                 A R B I T R A T I O N
 
vs.       
 
                                    D E C I S I O N
 
OSCAR MAYER FOODS CORP.,     
 
          
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
___________________________________________________________
 
 
 
5-1800
 
Claimant has failed to prove that he has sustained any permanent 
 
partial impairment as the result of his work injury on July 28, 1990.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       ____________________________________________________________
 
       DALE E. FUNDERBURK,   
 
               
 
          Claimant, 
 
               
 
       vs.          
 
                                             File No. 955614
 
       KEHOE MECHANICAL, INC.,    
 
                                          A R B I T R A T I O N
 
          Employer, 
 
                                              D E C I S I O N
 
       and          
 
               
 
       ALLIED MUTUAL INSURANCE,   
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
           This is a proceeding in arbitration upon the petition of 
 
       claimant, Dale Funderburk, against his former employer, Kehoe 
 
       Mechanical, Inc., and its insurance carrier, Allied Mutual 
 
       Insurance, defendants.  Claimant filed his petition on October 5, 
 
       1993.  The administrative file contains a first report of injury 
 
       which was filed by defendant-employer on July 31, 1990.  In the 
 
       prehearing conference report, the attorneys indicated they would 
 
       be ready for hearing on or after September 1, 1994.  The case was 
 
       heard on November 22, 1994 at the Division of Industrial Services 
 
       in Des Moines, Iowa.
 
            
 
           The record consists of the testimony of claimant.  The 
 
       record also consists of the testimonies of:  Pam Duffy, physical 
 
       therapist; Roger Marquardt, vocational rehabilitation specialist; 
 
       John Lee Egan, Iowa State Vocational Rehabilitation Counselor; 
 
       Mervin Vaughn, court reporter; and Bob Jones, vocational 
 
       evaluator at Mercy Hospital.  Finally, the record is comprised of 
 
       joint exhibits 1-22, claimant's exhibits 1-7, and defendants' 
 
       exhibit A.  Numerous videotapes of the claimant were included in 
 
       the record.  The record contains numerous duplications of the 
 
       submitted exhibits.  The duplications are unnecessary for a 
 
       speedy resolution of the case.
 
       
 
                                 ISSUES
 
            
 
           The parties admitted claimant had sustained a work-related 
 
       injury which arose out of and in the course of his employment.  
 
       The parties also stipulated that the work injury was causally 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       connected to claimant's condition.  Finally, the parties 
 
       stipulated claimant's condition was both temporary and permanent 
 
       in nature.
 
            
 
           The issues to be determined are:  1) the extent of 
 
       claimant's permanent disability; 2) claimant's credibility as a 
 
       witness; 3) the proper rate to use in calculating claimant's 
 
       weekly benefit rate; and, 4) whether claimant is entitled to 
 
       medical expenses pursuant to Iowa Code section 85.27.
 
       
 
                    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 54-years-old and a heavy smoker.  Previous to 
 
       his work injury he had been treated for alcoholism at Powell III.  
 
       He is single with three adult children.  Claimant graduated from 
 
       high school in 1959.  He did not attend college but he entered an 
 
       apprenticeship program with Local 33 of The Plumbers and 
 
       Steamfitters Union.  He became a journeyman plumber and 
 
       steamfitter in 1964 or 1965.  For many years he worked as a 
 
       service technician.  His trade required claimant to have 
 
       knowledge of refrigeration, steam fitting, welding, insulation, 
 
       and electricity.
 
            
 
           Claimant described many of his routine activities.  He was 
 
       required to lift 50 pounds or more; crawl in confined spaces; 
 
       climb up ladders and onto roofs; and dig dirt and clay.  The work 
 
       was physically challenging.
 
            
 
           As aforementioned, the parties stipulated claimant sustained 
 
       a work-related injury which occurred on June 28, 1990.  At the 
 
       time of the work injury, claimant was digging with a spade.  He 
 
       stepped onto the spade, and instantly, he dropped onto his hands 
 
       and knees.  He experienced excruciating pain in the back area.
 
            
 
           Claimant testified he went home early on the 28th.  He 
 
       reported he was never able to return to work after that date.  At 
 
       the time of his work injury claimant earned $17.64 per hour in 
 
       wages plus fringe benefits.  The combined wages and fringes 
 
       totaled $22.15 per hour.
 
            
 
            As of June 1, 1994, the base wage rate for a journeyman 
 
       plumber was $19.99 per hour.  The fringe benefits brought the 
 
       total wage packet up to $26.17 per hour.
 
            
 
            Ms. Jackie Buffums, claims adjuster, testified as to the 
 
       method defendant-insurance carrier used to calculate claimant's 
 
       weekly benefit rate.  She accurately described the correct manner 
 
       for calculating claimant's gross weekly wages of $612.65 per week 
 
       and his weekly benefit rate of $342.70.
 
            
 
            As a result of his work injury, claimant endured three low 
 
       back surgeries at L-4/L-5.  The third surgery occurred in April 
 
       of 1991.  All of the surgeries were performed by Daniel McGuire, 
 
       M.D., a local orthopedic surgeon, who was the authorized treating 
 
       physician.  The record establishes that claimant saw Dr. McGuire 
 
       on approximately 32 occasions (Exhibit 21-241).
 
            
 
            Approximately two months after the final surgery, Dr. 
 
       McGuire encouraged claimant to engage in vigorous physical 
 
       therapy and work hardening.  Dr. McGuire opined a return to work 
 
       was a reasonable goal (Ex. 21-218).  He questioned whether a 
 
       fourth surgery was required.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
            A second opinion was secured from Thomas Carlstrom, M.D., 
 
       (Ex. 3-32).  Dr. Carlstrom opined a fourth surgery was 
 
       unwarranted.  He recommended:
 
            
 
               I think he has some radicular pain on the basis of 
 
            his postoperative status, and I have nothing to offer 
 
            him treatmentwise.  He probably needs to be involved in 
 
            a Voc Rehab effort or return to his old job, whatever 
 
            seems to be appropriate there, and I am sure that you 
 
            and Dr. McGuire can work that out.
 
       
 
       (Ex. 3-32)
 
            
 
            In January of 1992, Thomas W. Bower, P.T., saw claimant for 
 
       purposes of rendering a functional capacities evaluation.  Mr. 
 
       Bower prepared a report dated January 16, 1992.  In his report, 
 
       Mr. Bower advised:
 
            
 
            Summary:
 
            
 
               We have viewed many things during the course of this 
 
            evaluation.  Body mechanics are extremely poor by this 
 
            patient and certainly intense instruction in this area, 
 
            I think, would be valuable.
 
            
 
               The patient is moderately deconditioned and this may 
 
            be an explanation at least in part, for the very poor 
 
            showing in the functional capacity evaluation.  There 
 
            is a certain degree of disproportionate pain reporting 
 
            which also has entered into the overall results of this 
 
            exam.
 
            
 
               We would recommend at this time, that the patient be 
 
            placed on a very intense stabilization routine, which 
 
            in my review, has not been done.  He, at this point, 
 
            has been started only on very minor flexion/extension 
 
            exercises, which really are not going to stabilize the 
 
            back.  Following the stabilization routine, the patient 
 
            may well be a candidate for the work hardening program.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            Certainly the Lift Trak analysis would suggest that we 
 
            can exceed far greater limits than what were noted 
 
            today.
 
            
 
               If we are to assume that this patient, after 
 
            completing the work hardening program, is going to have 
 
            normal function, this certainly would be a 
 
            misconception.  Certainly, I feel the overall condition 
 
            of this patient can be improved and certainly we could 
 
            move him probably through higher categories of work 
 
            following that procedure.
 
            
 
               If we were to leave this gentleman presently where 
 
            he is, the following restrictions would apply:
 
       
 
            POSITION      MAXIMUM LIFT   FREQUENT LIFT   REPETITIVE LIFT
 
       
 
            Floor to Waist   30 lbs.        22 lbs.         0 lbs.
 
       
 
            Chest Height     30 lbs.        20 lbs.        10 lbs.
 
       
 
            Carry            37 lbs.        22 lbs.        12 lbs.
 
       
 
            Push/Pull        40 lbs.
 
       
 
       (Ex. 21, p. 319)
 
            
 
            In May of 1992, Dr. McGuire opined the following relative 
 
       to claimant's condition:
 
            
 
               If we were to think about a fourth operation, it 
 
            would not be a simple little 45 minute laminectomy, but 
 
            instead may become a 3-4 hour surgery, where we would 
 
            go in and do a large decompression, instrument him from 
 
            behind and perhaps fuse the disk space in front.  In 
 
            other words, quite a large operation.  It may help him 
 
            a little bit, but it could make him a lot worse.
 
            
 
               With that in mind, we need to start determining the 
 
            other things.  I believe his permanent partial 
 
            disability as it pertains to his back symptoms and his 
 
            three operations is 12%.  I believe he is basically at 
 
            MMI.  The tissues have had time to heal from the injury 
 
            and from the three subsequent surgical interventions.  
 
            The problem is assigning restrictions.  We encouraged 
 
            him to go to a work hardening program to get a grasp of 
 
            his overall activity level and perhaps to be able to 
 
            condition him so we could get him into some type of 
 
            light sedentary work or even medium sedentary work.  
 
            Dale understands this.  He has had problems.  His 
 
            restrictions, therefore, will be quite significant.  He 
 
            may actually need a Functional Capacity Evaluation to 
 
            get some permanent criteria.  I believe he is going to 
 
            have a difficult time doing anything that requires 
 
            repetitive twisting, bending and stooping.  He may be 
 
            able to do that on a rare or occasional basis.  He 
 
            probably could do things that would allow him to 
 
            alternate between standing, sitting and walking.  His 
 
            weight restriction is probably going to be in the 5 to 
 
            10 to almost 20 pound range.  He should not be doing 
 
            that on a repetitive basis, but instead, moving about 
 
            and doing that on an occasional basis.  He has not 
 
            worked in almost two years, so it may be hard to get 
 
            him back to an 8 hour shift right away, but I think 
 
            that would be a reasonable long term goal.
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
               I am not optimistic that Dale will be able to return 
 
            to the work force.  That is nothing against Dale.  That 
 
            is not saying that his back symptoms are that severe.  
 
            I am just saying that from an overall observation of 
 
            the clinical situation.
 
            
 
               I think he would have a very difficult time 
 
            qualifying for Social Security Disability.  I do not 
 
            know if he has done any application work in that 
 
            regard.
 
            
 
               I do not really see much advantage to getting a 
 
            fourth opinion from a spine surgeon.  He has seen Dr. 
 
            Boarini, Dr. Carlstrom and he has seen me and I really 
 
            do not know if a fourth opinion will have much to offer 
 
            him.  Dr. Bill Boulden may be one viable candidate.  
 
            The places in Minnesota tend to like to operate on 
 
            everyone that they see.  There is a seven month wait to 
 
            be seen at the University of Iowa.
 
       
 
       (Ex. 21-310, 311)
 
            
 
            Robert Jones, B.S., a vocational evaluator, directed a 
 
       second functional capacity evaluation for claimant on March 23-
 
       24, 1994.  Mr. Jones determined the evaluation was invalid, and 
 
       in his opinion, the claimant was engaging in malingering and 
 
       symptom magnification (Ex. 21-211-324).  In support of his 
 
       opinion, Mr. Jones wrote:
 
            
 
               The patient is a 53 year old white male seen for an 
 
            updated Functional Capacity Evaluation.  He was 
 
            previously seen on September 14, 1993, at which time 
 
            very little of the FCE testing was able to be completed 
 
            due to reported low back and bilateral buttock and 
 
            lower extremity radicular pain on the patient's part.  
 
            He did demonstrate a great deal of pain behavior during 
 
            that evaluation as documented in the previous report 
 
            and the evaluator's resultant conclusion at that time 
 
            was that the patient was not competitively employable.
 
            
 
               Upon returning on this day the patient entered the 
 
            evaluation area walking with a noticeable limp on his 
 
            right lower extremity.  During the initial interview 
 
            situation he was noticed to sit leaned to his left side 
 
            with his weight off his right buttock and supporting 
 
            his upper body weight on the left arm of his chair, 
 
            never maintaining a seated position for more than four 
 
            minutes at a time.  When not seated he alternated 
 
            between limping about the evaluation area, standing 
 
            with his back flat up against a wall or leaning up 
 
            against something on his left side with his body weight 
 
            off his right lower extremity.
 
            
 
               . . . .
 
            
 
               Upon leaving the evaluation center at this time the 
 
            patient was sort of hunched forward at the waist and 
 
            limping rather severely on his right leg.
 
            
 
               In comparing the previous and current evaluations it 
 
            is seen that the patient's demonstrated pain behaviors 
 
            are essentially unchanged from slightly over six months 
 
            ago, although his reported left lower extremity 
 
            radicular pain has changed in location.  Despite his 
 
            continued reported pain experience and demonstrated 
 
            pain behaviors on this day he did manage to complete 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            the entire testing process, however, although with very 
 
            poor performances throughout as well as with some 
 
            inconsistencies.
 
            
 
               Before having the opportunity to write the final 
 
            evaluation report the evaluator coincidentally saw the 
 
            patient having lunch in the hospital cafeteria the next 
 
            day at 1:00 p.m.  The evaluator took a seat at a table 
 
            one row over and three tables down from the patient 
 
            with his back to him.  At 1:10 p.m. the patient got up 
 
            to leave the cafeteria, carrying his tray of dirty 
 
            dishes approximately 60' to the tray line with only the 
 
            slightest perceptible limp on his right leg.  At this 
 
            point the evaluator proceeded to follow the patient at 
 
            a distance to observe him further, with the patient 
 
            walking another 240-250' to the nearest exit to step 
 
            outside and smoke a cigarette.  He again demonstrated 
 
            only a very slight limp on his right leg while walking 
 
            this distance, certainly much less than he had 
 
            demonstrated upon arriving at the evaluation center the 
 
            previous day.
 
       
 
       (Ex. 21-326 and 331)
 
            
 
            Mr. Jones testified as an expert witness who was called by 
 
       defendants.  He testified during his direct examination that "he 
 
       had been duped by the claimant until he observed claimant in the 
 
       hospital cafeteria."  Mr. Jones testified that claimant is 
 
       capable of light employment and that he can lift 20 pounds 
 
       occasionally and 10 pounds frequently.  Mr. Jones explained that 
 
       claimant is not capable of handling all types of sedentary 
 
       employment since he has some difficulties sitting for long 
 
       periods of time. 
 
            
 
            In July of 1994, Dr. McGuire examined claimant in a 
 
       subsequent examination.  The treating surgeon authored a report 
 
       which is dated July 1, 1994.  In the report, Dr. McGuire wrote:
 
            
 
               He is still having problems with low back pain, pain 
 
            down the right leg to the posterior calf to the first 
 
            and second toe, and numbness there also.  He has some 
 
            slight symptoms down the left side, but those are 
 
            really pretty minimal.
 
            
 
               No bowel or bladder dysfunction.  With Valsalva, he 
 
            claims right leg pain.  He denies a history of cancer 
 
            or weight loss.  He has some night pain.  When he gets 
 
            up in the morning, he is pretty stiff and sore.  If he 
 
            takes a hot shower or sits in the whirlpool, he feels 
 
            better.  Walking causes right leg pain.  Standing for 
 
            fifteen minutes causes right leg pain.  He believes the 
 
            symptoms are basically the same as they have been all 
 
            along.
 
            
 
               PHYSICAL EXAMINATION:  5'10", 150-pound male 
 
            appearing roughly the stated age.  Examination of the 
 
            spine:  No real spasms or deformity.  He seems to have 
 
            a little loss or lordosis.  The midline scar is 
 
            present.  He forward flexes 70 degrees with right 
 
            posterior thigh pain.  He extends 5 degrees.  He can 
 
            heel and toe walk.  He walks with a rather pronounced 
 
            limp on this right leg and almost keeps his hip and 
 
            knee flexed.  In a sitting position, he has decreased 
 
            sensation right L5 and, perhaps, a slight decrease in 
 
            right L5.  The reflexes are 2+.  He seems to have a 
 
            global decreased strength of the right leg, 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            particularly as it pertains to the quads, anterior 
 
            tibs, and EHL's.  In a sitting position, with flip 
 
            test, on the right, he has right buttock pain.  On the 
 
            left, he has low back pain.
 
            
 
               He does wear a corset most of the time.
 
            
 
               Two views of this lumbar spine were obtained.  No 
 
            destructive lesions are noted.  There is no evidence of 
 
            severe disc space changes, such as discitis.  He does 
 
            have some minor changes at 4/5 and, perhaps, just a bit 
 
            or foraminal stenosis.  No real calcifications for his 
 
            aorta.
 
            
 
               . . . .
 
            
 
               I am not really sure what my purpose is today.  
 
            Obviously, he has an impairment.  I probably have 
 
            stated it previously somewhere in his records.  He has 
 
            had a laminectomy with persistent symptoms.  He had two 
 
            other laminectomies.  It is probably in the 12 to 14% 
 
            range.  Obviously, he has some restrictions that 
 
            pertain to the fact he has had a laminectomy.  He has 
 
            further restrictions as they pertain to his subjective 
 
            aches and pains and further restrictions as they 
 
            pertain to his body habitus and NIOSH standards.  If 
 
            you take into the fact that he has been on Social 
 
            Security Disability and has not worked for four years, 
 
            it is almost guaranteed that he is never really going 
 
            to go back to work again. . . .
 
       
 
       (Ex. 21-312 and 313)
 
            
 
            Several weeks later Dr. McGuire issued another report.  It 
 
       was dated July 24, 1994.  In the report, Dr. McGuire discussed 
 
       the events which were depicted on the aforementioned videotapes.  
 
       Dr. McGuire felt claimant had been less than candid with him in 
 
       terms of claimant's capabilities.  Dr. McGuire noted in the same 
 
       report:
 
            
 
               I tried my darndest to obtain history from Mr. 
 
            Funderburk during the office interview about his day-
 
            to-day activities.  The videotape does not fit with what 
 
            he told me he is doing.  He appears to be much more 
 
            active than he indicated.  More importantly, he appears 
 
            to be much less symptomatic on the videotape.  In 
 
            addition, it is rare when we see him limp on the 
 
            videotape.  The only time I saw him limp was when he 
 
            walked into your office, out of your office, and into 
 
            the insurance company and back.  There were just a 
 
            couple of other times on the tape he limps for one or 
 
            two steps.
 
            
 
               I spent quite a bit of time with him when he was in 
 
            the office.  He put on quite an exaggerated show while 
 
            he was in the office, limping in and out of the office.  
 
            However, the videotape would indicate he is capable of 
 
            doing much better.
 
            
 
               Carrying a tray like he did at McDonald's would 
 
            probably indicate he could carry twenty or thirty 
 
            pounds.  The good news about the videotape and 
 
            observations at McDonald's indicates that there are 
 
            many things he could be doing.
 
            
 
               Based on his laminectomy and the observations, he 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            probably could be lifting things that weigh at least 
 
            thirty pounds, doing that on an occasional to almost 
 
            frequent basis if he uses good body mechanics.  He 
 
            could be doing jobs that involve walking and some 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            sitting.  He could do jobs that involve bending and 
 
            twisting, but I would try to keep them to an occasional 
 
            basis.  He could be working eight hours per day.
 
       
 
       (Ex. 21-314 and 315)
 
            
 
            As a result of the videotapes, Dr. McGuire modified the 
 
       physical restrictions he had imposed on claimant (Ex. 21-314 and 
 
       315).  He testified in his deposition that:
 
            
 
               Q.  Based upon all of the information that has been 
 
            presented to you, do you have an impression as to 
 
            whether or not Mr. Funderburk was always open and 
 
            honest and credible in his representations of his self 
 
            to you?
 
            
 
               A.  I feel very strongly that when I saw him in the 
 
            summer of '94 he was not -- he did not present a 
 
            legitimate picture to me.  I feel very strongly about 
 
            that.
 
            
 
               Q.  Did any of this at any time give you any cause 
 
            to question whether or not the treatment throughout 
 
            would have been totally necessary?
 
            
 
               A.  Well, seeing that videotape in the summer of 
 
            1994 really cast doubt on how he presented himself in 
 
            the office.  So then unfortunately in my own mind I 
 
            have to sit back there and go perhaps he misrepresented 
 
            his complaints to me in the summer of '90 or the spring 
 
            of '91.
 
       
 
       (Ex. 21-236 and 237)
 
            
 
            Claimant desired an independent medical examination.  As a 
 
       consequence, he sought an examination and an evaluation from 
 
       Martin Rosenfeld, M.D., an orthopedic surgeon.  Dr. Rosenfeld 
 
       examined claimant on March 2, 1993, and the physician authored a 
 
       report which expressed his opinion relative to claimant's back 
 
       condition.  Dr. Rosenfeld opined:
 
            
 
               On examination straight leg raising on the right is 
 
            positive at forty-five (45) degrees with positive 
 
            popliteal compression.  On the left it is negative to 
 
            eighty (80) degrees and then there is equivocal 
 
            contralateral Lasegue test.  I pick up no gross 
 
            extensor hallucis or ankle weakness.  He has a well 
 
            healed lower lumbar scar over the L 4-5 area.  He does 
 
            have some paraspinal spasm.  Patient states that he 
 
            does wear a back brace or has worn a back brace and 
 
            this does give him relief.
 
            
 
               Films are reviewed showing the recurrence of the 
 
            disc herniations and equivocal changes more significant 
 
            now for scar than for new disc procedures.
 
            
 
               Impression: Recurrent lumbar disc syndrome, L 4-5 on 
 
                     the right with recurrent surgery times 
 
                     three.
 
            
 
               It would appear that there is no question as to the 
 
            causal relationship of the on-the-job injury.  In using 
 
            the AMA Guides, there is a thirteen (13%) percent 
 
            impairment to the body as a whole as a result of this 
 
            injury and subsequent surgery.  The AMA Guides give ten 
 
            (10%) percent for the initial operation with residuals; 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            two (2%) percent for the second operation; and an 
 
            additional one (1%) percent for the third for a total 
 
            of thirteen (13%) percent.  There is discussion in the 
 
            patient's files regarding a fourth operation and 
 
            although there is natural and reasonable reticence to 
 
            make that recommendation, I would think that since he 
 
            does improve with external support that consideration 
 
            of fusion should be made.  I would recommend referral 
 
            to the Minnesota Spine Center as I find that their 
 
            evaluations are basically conservative in nature, but 
 
            fair and once and for all could answer the question 
 
            whether the patient should be considered for fusion or 
 
            not.
 
       
 
       (Ex. 22-Deposition Ex. 2)
 
            
 
            Following the issuance of Dr. Rosenfeld's report, Pam Duffy, 
 
       P.T., examined and evaluated claimant for purposes of rendering a 
 
       functional capacity evaluation.  She issued a written report 
 
       which was attached as deposition exhibit l to the deposition of 
 
       Dr. Rosenfeld.  Ms. Duffy testified at the hearing as an expert 
 
       witness who was called by claimant.  Her testimony was consistent 
 
       with her report. 
 
            
 
            In her report, she recommended the following:
 
            
 
            SIGNIFICANT DEFICITS:
 
            The following limited the client's functional 
 
            abilities:
 
            1.  Inability to tolerate periods of prolonged sitting     
 
            limits his ability to tolerate safely more than 15-   
 
            30 minutes of static sitting.  This is consistent          
 
            with his previous diagnosis.
 
            2.  Trunk weakness limited his ability to rotate trunk   
 
            comfortably on a repetitive basis.
 
            3.  Moderately severe gluteus maximus tightness and        
 
            restricted trunk flexion limited crouching and        
 
            squatting abilities.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            4.  Trunk weakness limited kneeling capabilities.
 
            5.  Trunk weakness limited maximum lifting and carrying 
 
                capabilities.
 
            
 
            JOB DESCRIPTIONS EXPLORED:
 
            Patient gave detailed and specific knowledge of his 
 
            previous position at Kehoe.  This required lifting of 
 
            equipment and parts for heating and plumbing activities 
 
            greater than 50 lbs.  No other job descriptions were 
 
            provided to the therapist and patient is currently on 
 
            Social Security disability and is not currently 
 
            actively seeking other employment positions with which 
 
            to compare the FCE results to a specific written 
 
            career/job description.
 
            
 
            PHYSICAL WORK STRENGTHS (COMPARED TO JOB DESCRIPTION):
 
            This patient's current physical work strengths 
 
            correspond with sedentary work.  This would be lifting 
 
            or carrying 10 lbs. on a continuous basis.  He would 
 
            not be able to lift 20 lbs. but on a horizontal carry 
 
            could carry up to 20 lbs.  His maximum lifting 
 
            capabilities, which could be performed occasionally or 
 
            rarely, were 15 lbs. from the floor.  See the specific 
 
            FCE form that itemizes all of the functional abilities 
 
            obtained from our two day testing.
 
            
 
            It should be noted that the Isernhagen Work System is a 
 
            functional test and correlates directly with a person's 
 
            capabilities.  Safety is insured during the testing and 
 
            clients are not allowed to perform unsafe maneuvers.
 
       
 
          PHYSICAL RESTRICTIONS (COMPARED TO THE JOB DESCRIPTION):
 
          Compared to his working in heating and plumbing, this            
 
       patient is unable to perform the maximum lifts and to place    
 
       his trunk in sustained postures for the periods of time        
 
       required to do that type of repair work.  The primary               
 
       restriction is the lifting capabilities.
 
            
 
            RECOMMENDATIONS:
 
            1.  Physical abilities do ont [sic] match the job          
 
            description of heating and cooling repair/                 
 
            installation.  The areas of discrepancy are as        
 
            noted above in that the work-critical demands         
 
            include lifting greater than 50 lbs. and his FCE           
 
            abilities corresponded with 15-20 lbs. maximum.
 
            
 
            Therefore, as we have stated, it is obvious that this 
 
            client is not able to return to this type of position.  
 
            He states that his company, Kehoe, is no longer in 
 
            business.
 
            
 
            2.  The following recommendations should be used to        
 
            increase the functional level:
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            1)  Independent home exercise program for             
 
            flexibility and strengthening of the trunk and              
 
            lower extremities.  We began instructing the                 
 
            client on day two with some basic flexibility                
 
            exercises.  He would probably benefit from                   
 
            additional instruction for further                           
 
            strengthening.
 
            2)  Independent cardiovascular conditioning                
 
            program.
 
            3)  Vocational assistance.
 
            
 
            3.  IMPAIRMENT:  I will simply comment that I would        
 
            concur with Dr. Daniel McGuire's estimate of               
 
            impairment between 12 and 14%, as he has noted in          
 
            his correspondence of July 24, 1994.
 
            
 
            4.  If the patient is seeking employment, his              
 
            restrictions would include the ability to pace work   
 
            independently, vary positions of sitting and               
 
            standing as needed; and items greater than 15 lbs.    
 
            should be raised off the floor since he is unable          
 
            to lift more than this amount of weight from the           
 
            floor, and that maximum carries should not exceed          
 
            20 lbs.
 
            
 
            Ms. Duffy testified that claimant could not work eight hours 
 
       per day for five days per week.  She admitted claimant was 
 
       capable of working sedentary jobs and some jobs in the light 
 
       category.  However, she opined claimant was unable to return to 
 
       full time employment as he was deconditioned.
 
            
 
            Dr. Rosenfeld testified by deposition.  He disagreed with 
 
       Dr. McGuire's opinion that claimant had been exaggerating his 
 
       symptoms and capabilities.  He reviewed the report of Ms. Duffy, 
 
       and he found it to be consistent with the opinions he held 
 
       relative to claimant's condition. 
 
            
 
            With respect to claimant's physical capacities, Dr. 
 
       Rosenfeld opined:
 
            
 
               A.  No, I just would disagree that Mr. Funderburk is 
 
            a malingerer, so therefore I wouldn't agree with Mr. 
 
            Jones' report.
 
            
 
               Q.  So it's just the word "malingering" that bothers 
 
            you?
 
            
 
               A.  Well, I don't remember all of the writings in 
 
            Mr. Jones' report, but it was to me very inflammatory 
 
            against Mr. Funderburk, and I just didn't agree with 
 
            it.  I just felt that Pam Duffy's report was more 
 
            consistent with the history that I had and with what I 
 
            saw on the videotapes, and I thought it was -- I saw 
 
            somebody that was very consistently leading a life of  
 
            -- with the consistency of somebody that had three back 
 
            operations, and that he had some leg pain, and it was 
 
            not a symptom magnifier to me.  He has pain, he's 
 
            careful, he does quite a few things, he was quite 
 
            independent, but I didn't feel that I saw him do heavy, 
 
            continuous work, the type of work that would be 
 
            required for his previous occupation.
 
       
 
       (Ex. 22-356)
 
            
 
            Subsequent to the work injury, defendant-employer ceased 
 
       doing business.  Because of poor financial prospects, the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       business was closed.  No return to work was offered to claimant.
 
            
 
            In the summer of 1992, claimant invested $800.00 in an 
 
       anything but profitable business venture.  He purchased several 
 
       home water purifying systems which he attempted to sell.  
 
       Claimant admitted he had no sales skills.  The success of the 
 
       business depended on telemarketing.  Claimant discovered 
 
       telephone solicitation was more difficult than he had 
 
       anticipated.  Shortly after the start of his venture he became 
 
       disillusioned; he neglected the business and donated the systems 
 
       to family members.
 
            
 
            Claimant did not seek other employment following the failure 
 
       of his small business.  He voluntarily left the labor market.  
 
       Instead, he filed for social security disability through the 
 
       Social Security Administration.  He prevailed on his claim and he 
 
       is receiving monthly disability checks in excess of $900.00 per 
 
       month.  Claimant also applied for his pension through The 
 
       Plumbers and Steamfitters Union.  He is receiving those benefits 
 
       as well.  His monthly check is in the $800.00 per month range.
 
            
 
            The parties retained vocational rehabilitation counselors to 
 
       provide expert testimony during the hearing.  Roger Marquardt 
 
       testified on behalf of claimant.  He indicated claimant is 
 
       employable in light or sedentary activities where sitting and 
 
       standing are alternated.  Mr. Marquardt testified claimant has at 
 
       least a 50 percent reduction of access to the labor market 
 
       because of the work injury.  He also testified claimant could 
 
       expect at least a 60 percent loss of actual wages.
 
            
 
            On the other hand, Dave L. Mitchell testified on behalf of 
 
       defendants.  He opined claimant had access to sedentary and light 
 
       employment opportunities.  He noted sales, light delivery work, 
 
       and security work, as possible employment opportunities.  He 
 
       opined there was a 40 percent loss of heavy labor positions which 
 
       would have been available to claimant.  Mr. Mitchell also 
 
       recommended part-time positions.  He did not obtain employment 
 
       for claimant.
 
            
 
            John Egan, a counselor with the Iowa Department of 
 
       Vocational Rehabilitation, also testified during the hearing.  He 
 
       was a credible witness.  He directed vocational testing and/or 
 
       placement for claimant.  Mr. Egan, after testing, recommended the 
 
       Home Bound Program for claimant.  As of the date of the hearing, 
 
       claimant had signed up for participation in the program but he 
 
       did not appear for two of the sessions.
 
            
 
            Mr. Egan opined claimant was capable of making and selling 
 
       craft items.  Photographic depictions of claimant's handiwork 
 
       were submitted as evidence in the case.  Claimant is skilled in 
 
       woodworking and he has fabricated shelves, end tables, mirrors 
 
       and wall sconces.
 
            
 
            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).
 
            
 
            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.
 
            
 
            The defendants vigorously questioned claimant's credibility 
 
       as a witness.  The issue of credibility is central to the 
 
       resolution of this claim.  The credibility of a witness is always 
 
       an issue which must be determined by a deputy industrial 
 
       commissioner.
 
            
 
            Because defendants challenged claimant's credibility, they 
 
       conducted surveillance of claimant on numerous occasions.  The 
 
       tapes were submitted as evidence and thus reviewed by this deputy 
 
       industrial commissioner.  It took approximately 3 and 1/2 hours 
 
       to review them.  This deputy industrial commissioner relied 
 
       heavily on the videotapes as evidence of claimant's physical 
 
       condition on the dates the surveillance was conducted.  The 
 
       videotapes more accurately represented claimant's physical 
 
       capabilities.  But for the submitted videotapes, this deputy 
 
       would have awarded claimant a permanent and total disability, 
 
       given the restrictions imposed upon claimant, the opinions of Dr. 
 
       McGuire before he viewed the tapes, the impairment ratings which 
 
       were provided, and given the other factors which are considered 
 
       when determining industrial disability.  However, the videotapes 
 
       convinced the deputy to decide otherwise.
 
            
 
            The videotapes support defendants' position that claimant is 
 
       capable of handling light duty jobs and even some sedentary 
 
       positions.  As witnessed on the videotapes, claimant walks with a 
 
       normal gait.  His movements are not slow and deliberate.  They 
 
       flow easily and he has no difficulty hopping in and out of 
 
       vehicles.  Claimant can drive a pick-up truck and carry light 
 
       objects like grocery bags or car seats.  Claimant can sweep, lift 
 
       and stack wooden logs, and manually push motorcycles.  He can 
 
       stand for short periods of time and work at table saws.  He has 
 
       difficulties when he sits in the same position for more than 30 
 
       minutes.  The videotapes even convinced Dr. McGuire to modify the 
 
       restrictions he had placed on claimant's work activities.  Two 
 
       orthopedic surgeons evaluated claimant as having impairment 
 
       ratings from 12 to 14 percent.
 
            
 
            Even though this deputy industrial commissioner recognizes 
 
       claimant can perform work in the competitive labor market, the 
 
       undersigned acknowledges claimant's earning capacity and his 
 
       actual earnings have been greatly diminished by his work injury.  
 
       It is clear claimant cannot return to a position as a plumber or 
 
       a steamfitter where he previously earned over $17.00 per hour.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       It is doubtful he can obtain other suitable employment which will 
 
       compensate him at the hourly rate he earned as a journeyman 
 
       steamfitter.  Jobs for which claimant is suited will pay in the 
 
       $6.00 to $8.00 per hour range.
 
            
 
            Claimant's age is a negative factor.  At age 54, he will 
 
       experience difficulties in obtaining other employment.  He has 
 
       voluntarily removed himself from the competitive labor market.  
 
       It is evident he will not return, although, he has a history of 
 
       steady employment which requires skill and expertise.  He has no 
 
       formal education beyond the high school level.  He is not a 
 
       candidate for retraining.
 
            
 
            Therefore, in light of the foregoing, it is the 
 
       determination of the undersigned that claimant has sustained a 
 
       permanent partial disability in the amount of 75 percent.  He is 
 
       entitled to 375 weeks of permanent partial disability benefits 
 
       commencing from May 25, 1992, and payable at the rate of $342.70 
 
       per week.  Defendants are entitled to a credit for all benefits 
 
       previously paid.  (At the time of the hearing defendants had paid 
 
       claimant 229 weeks of compensation at the rate of $342.70 per 
 
       week).
 
            
 
            Claimant neglected to attach a detailed list of itemized 
 
       medical expenses for which he requested payment under section 
 
       85.27.  Consequently, this deputy was unable to determine whether 
 
       certain medical expenses were compensable under section 85.27.
 
       
 
                                 ORDER
 
            
 
            THEREFORE, IT IS ORDERED:
 
            
 
            Defendants shall pay unto claimant three hundred seventy-
 
       five (375) weeks of permanent partial disability benefits at the 
 
       rate of three hundred forty-two and 70/l00 dollars ($342.70) per 
 
       week and commencing from May 25, 1992.
 
            
 
            Defendants shall take credit for all benefits previously 
 
       paid claimant.
 
            
 
            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.
 
            
 
            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 June, 1995.
 
       
 
       
 
                                 ______________________________          
 
                                 MICHELLE A. McGOVERN
 
                                 DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Larry D. Krpan
 
       Attorney at Law
 
       3100 Ingersoll Ave
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       Des Moines  IA  50312
 
       
 
       Mr. Robert C. Landess
 
       Attorney at Law
 
       Terrace Center  STE 111
 
       2700 Grand Ave
 
       Des Moines  IA  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            1800; 1803
 
                                            Filed June 14, 1995
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
               
 
         DALE E. FUNDERBURK, 
 
               
 
          Claimant, 
 
               
 
         vs.        
 
                                            File No. 955614
 
         KEHOE MECHANICAL, INC.,  
 
                                         A R B I T R A T I O N
 
          Employer, 
 
                                            D E C I S I O N
 
         and        
 
               
 
         ALLIED MUTUAL INSURANCE, 
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
         ___________________________________________________________
 
         1800; 1803
 
         Claimant was injured on the job.  As a result of the work 
 
         injury, Dr. McGuire performed three laminectomies at L4-5.  
 
         Claimant participated in physical therapy and work 
 
         hardening.  Dr. McGuire imposed severe restrictions.  
 
         Claimant was rated as having from a 12% to a 14% impairment.
 
         Defendants conducted surveillance of claimant, once he had 
 
         reached maximum medical improvement.  It took the deputy 
 
         industrial commissioner about 3 and 1/2 hours to review the 
 
         tapes.  The videotapes depicted claimant performing tasks 
 
         which he maintained were impossible for him to do.  The 
 
         videotapes convinced this deputy that claimant had been less 
 
         than candid when he spoke of his physical capabilities.  The 
 
         videotapes, when shown to the authorized treating physician, 
 
         compelled him to modify the work restrictions he had imposed 
 
         on claimant. 
 
         HELD:  Claimant was awarded a 75% permanent partial 
 
         disability.
 
 
            
 
           
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LISA L. STRAIT,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                          File Nos. 955692, 1013367
 
            WOODWARD STATE HOSPITAL- 
 
            SCHOOL,   
 
                                                 A P P E A L
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  The decision of the 
 
            deputy filed October 29, 1992 is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 In her brief on appeal, claimant argues that her 
 
            situation should be analyzed under the reasoning stated in 
 
            Larson, 1A Workmen's Compensation Law, section 23 (1990).  
 
            There, Professor Larson states:  
 
            
 
                    The current tendency is to treat the question, 
 
                 when an instigator is involved, as a primarily 
 
                 course of employment rather than 
 
                 "arising-out-of-employment" problem; thus, minor 
 
                 acts of horseplay do not automatically constitute 
 
                 departure from employment but may here, as in 
 
                 other fields, be found insubstantial.  So, whether 
 
                 initiation of horseplay is a deviation from course 
 
                 of employment depends on:  (1) the extent and 
 
                 seriousness of the deviation, (2) the completeness 
 
                 of the deviation (i.e., whether it was commingled 
 
                 with the performance of a duty or involved an 
 
                 abandonment of duty), (3) the extent to which the 
 
                 practice of horseplay has become an accepted part 
 
                 of the employment, and (4) the extent to which the 
 
                 nature of the employment may be expected to 
 
                 include some such horseplay.
 
            
 
                 Even if we were to adopt the standard Professor Larson 
 
            espouses, claimant would not prevail, however.  The 
 
            seriousness of a deviation from employment cannot be judged 
 
            by the consequences of the deviation.  See Nigbor v. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Department of Industry, 355 N.W.2d 532 (Wisconsin, 1984).  
 
            Claimant's deviation was serious because of the potential 
 
            consequences of leaving three mentally handicapped clients 
 
            unattended in a swimming pool, an act which did not permit 
 
            claimant to immediately intervene, either actively or 
 
            passively, should her clients need her assistance.  
 
            Claimant's deviation had a potential for causing any or all 
 
            of her clients serious harm.  Hence, the deviation was quite 
 
            serious.  Additionally, claimant's deviation is an almost  
 
            wholly complete deviation from the course of her employment.  
 
            That claimant intended a substantial disregard of her 
 
            employment duties is evidenced by claimant's telling Ms. 
 
            Moyer that attending to her clients' safety was the 
 
            lifeguard's duties.  That remark evidences that claimant's 
 
            mindset was that the swimming outing was a recreational 
 
            activity for her personal benefit as much as for her 
 
            clients' benefit and a recreational activity, which activity 
 
            removed her from her regular employment duties.  That 
 
            claimant's employer did not share claimant's view of the 
 
            purpose of the outing is evidenced by the employer's giving 
 
            claimant a letter of clarification as regards her conduct at 
 
            the outing.  Also, the record does not reflect that it was 
 
            accepted that residential treatment workers on swimming 
 
            outings should spend substantial portions of their time in 
 
            their own recreational endeavors and not attending to their 
 
            clients.  That Ms. Moyer, who did not have supervisory 
 
            authority over claimant, felt compelled to comment on the 
 
            residential treatment workers' diving and their need to 
 
            resume contact with their clients strongly evidences that 
 
            the extent of horseplay engaged in when claimant was injured 
 
            was greater than that level of horseplay accepted as part of 
 
            the employment.  Under the same reasoning, it cannot be said 
 
            that the nature of the employment would be expected to 
 
            include diving engaged in as extensively and as apart from 
 
            one's clients and as apart from an interest in one's clients 
 
            as claimant displayed when injured.  While it is true that 
 
            it was anticipated that residential treatment workers, who 
 
            were participating with their clients on a swimming outing, 
 
            would also engage in water-related activities including 
 
            diving in relaxed moments, it was clearly not anticipated 
 
            that claimant or other residential treatment workers would 
 
            engage in diving activities for substantial periods and at a 
 
            distance from their clients' physical location.  For all the 
 
            foregoing reasons, analyzing the record under the standard 
 
            Professor Larson espouses does not change the result.  
 
            
 
                 Claimant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
                 
 
                      
 
                                       ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                                              
 
            
 
            Copies To:
 
            
 
            Mr. Stephen D. Lombardi
 
            Attorney at Law
 
            10101 University Ave., Suite 202
 
            Des Moines, IA  50325
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Department of Justice - Tort Claims
 
            Hoover State Office Building
 
            Des Moines, IA  50319
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               Filed June 30, 1993
 
                                               Byron K. Orton
 
                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LISA L. STRAIT,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                          File Nos. 955692, 1013367
 
            WOODWARD STATE HOSPITAL- 
 
            SCHOOL,   
 
                                                 A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
                 Summary affirmance of the deputy's decision with short 
 
            additional analysis.
 
            
 
                 In the additional analysis, defendants' defense of 
 
            horseplay was also analyzed under the standard Professor 
 
            Larson sets forth in Workmen's Compensation Law, section 23, 
 
            without a change in the result.