BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         KIMBERLY FRIELING,              :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 963069
 
         VIKING PUMP - HOUDAILLE,        :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         LIBERTY MUTUAL,                 :
 
                                         :
 
              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.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is:  Whether a full commutation of 
 
         survivor benefits is in the best interests of the claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed June 17, 1994 are adopted as final agency action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed June 17, 1994 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.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              Section 85.31(1)(a) provides:
 
              
 
                 1.  When death results from the injury, the employer 
 
     
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              shall pay the dependents who were wholly dependent on 
 
              the earnings of the employee for support at the time of 
 
              the injury, during their lifetime, compensation upon 
 
              the basis of eighty percent per week of the employee's 
 
              average weekly spendable earnings, commencing from the 
 
              date of death as follows:
 
              
 
                 a.  To the surviving spouse for life or until 
 
              remarriage, provided that upon remarriage two years' 
 
              benefits shall be paid to the surviving spouse in a 
 
              lump sum, if there are no children entitled to 
 
              benefits.
 
         
 
              Section 85.45, in relevant part, provides:
 
              
 
                 Future payments of compensation may be commuted to a 
 
              present worth lump sum payment on the following 
 
              conditions:
 
              
 
                 1.  When the period during which compensation is 
 
              payable can be definitely determined.
 
              
 
                 2.  When it shall be shown to the satisfaction of 
 
              the industrial commissioner that such commutation will 
 
              be for the best interest of the person or persons 
 
              entitled to the compensation, or that periodical 
 
              payments as compared with a lump sum payment will 
 
              entail undue expense, hardship, or inconvenience upon 
 
              the employer liable therefor.
 
         
 
              The standard to be applied in determining whether a 
 
         commutation is in the best interest of claimant was originally 
 
         established in Diamond v. Parsons Company, 256 Iowa 915 (1964) 
 
         and affirmed in Dameron v. Neumann Brothers, Inc., 339 N.W.2d 160 
 
         (Iowa 1983).  Indeed, the Dameron court reasserted that the 
 
         industrial commissioner should not act as an unyielding 
 
         conservator of claimant's property in disregard of claimant's 
 
         desires and reasonable plans just because success in the future 
 
         is not assured.  Dameron further indicated that the statutory 
 
         guideline, best interest of claimant, should focus on the 
 
         worker's personal, family and financial circumstances and the 
 
         reasonableness of worker's plans for using the lump sum proceeds.  
 
         Under Dameron's analysis of Diamond, the following factors are to 
 
         be included in the consideration of whether claimant's desire for 
 
         a full commutation is consistent with claimant's best interest:
 
              
 
                 1.  The worker's age, education, mental and physical 
 
              condition, and actual life expectancy (as contrasted 
 
              with information provided by actuarial tables).
 
              
 
                 2.  The worker's family circumstances, living 
 
     
 
         
 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              arrangements, and responsibilities to dependents.
 
              
 
                 3.  The worker's financial condition, including all 
 
              sources of income, debts and living expenses.
 
              
 
                 4.  The reasonableness of the worker's plan for 
 
              investing the lump sum proceeds and the worker's 
 
              ability to manage invested funds or arrange for 
 
              management by others....
 
         
 
              The Dameron court characterized the Diamond analysis as 
 
         involving a benefit-detriment balancing of factors, with the 
 
         worker's preference and the benefits to the worker of receiving a 
 
         lump sum payment weighed against the potential detriment that 
 
         would result if the worker invested unwisely, spent foolishly or 
 
         otherwise wasted the funds so that it no longer provided the wage 
 
         substitute intended by the workers' compensation law.  It noted 
 
         that under Diamond, a request for commutation is approved on the 
 
         best interest balancing test unless the potential detriment to 
 
         the worker outweighs the worker's expressed preference and the 
 
         demonstrated benefits of commutation.
 
         
 
              Dameron further stated that the Diamond analysis, with its 
 
         emphasis on the worker's own personal and financial 
 
         circumstances, makes good sense and again highlighted that 
 
         commutation turns on what is in the best interest of the worker, 
 
         not on what is in the best interest of the employer or the 
 
         insurance carrier and that the statute does not permit denying 
 
         commutation because of expense, hardship or inconvenience to the 
 
         employer.
 
         
 
              Claimant has demonstrated that a full commutation is in her 
 
         best interest.  Claimant has training and job skills in three 
 
         different areas.  She is a young woman fully capable of greater 
 
         employment opportunities than those to which she now avails 
 
         herself.  While claimant's investment choices as demonstrated by 
 
         her current use of certificates of deposit and checking account 
 
         as ways of investing her income, may not present the highest 
 
         interest bearing or most lucrative forms of investment, 
 
         claimant's ability to acquire the assets that she has acquired as 
 
         well as her ability to achieve debt-free status in the time 
 
         subsequent to her spouse's death demonstrate that claimant is 
 
         capable of managing her own assets.  Likewise, while the income 
 
         that claimant can expect from purchase of farmland were it to 
 
         remain in the crop conservation program or were she to 
 
         subsequently rent it out may not be large, real estate both as 
 
         potentially productive farmland and as a home acreage are 
 
         valuable and appropriate assets for claimant.  Given claimant's 
 
         debt-free status; her ability to earn an income for daily living 
 
         expenses from her own education and training; and claimant's 
 
         expressed desire to fully commute funds in order to assist her in 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         acquiring this real estate without needing to undertake a 
 
         mortgage arrangement; claimant has demonstrated that full 
 
         commutation of her remaining benefits is in her best interest.
 
         
 
              Defendants have raised the specter of claimant's potential 
 
         remarriage to Mr. Junker.  We do not doubt that defendants likely 
 
         are correct in their surmising that should full commutation be 
 
         granted, claimant will remarry.  That defendants will incur less 
 
         expense were claimant to remarry while receiving weekly benefits 
 
         and, therefore, be entitled only to a two year lump sum payment 
 
         of benefits is not a proper consideration in determining whether 
 
         claimant's request for full commutation is appropriate.  The 
 
         standard is what is in claimant's best interest given claimant's 
 
         personal and financial circumstances.  Claimant's financial 
 
         circumstances both as measured by her current situation and as 
 
         measured by her plans for investment of the fully commuted funds 
 
         are certainly consistent with her preference for a full 
 
         commutation.  Likewise, claimant's personal circumstance, that 
 
         she would prefer to have the freedom to remarry as opposed to 
 
         needing to weigh remarriage versus cohabitation by financial 
 
         incentives and disincentives to remarriage is also in claimant's 
 
         best personal interest.
 
         
 
              Defendants argue that they are entitled to a credit for 
 
         benefits previously paid claimant.  We find no merit to 
 
         defendants' argument that failure to grant them a credit would 
 
         result in claimant receiving certain benefits twice under a full 
 
         commutation.  Claimant's full commutation is determined under the 
 
         life expectancy and remarriage tables.  It is then appropriately 
 
         discounted to account for the time between time of requested 
 
         commutation and the weeks between the date commutation was sought 
 
         and the upcoming anniversary of the decedent's death.  Hence, the 
 
         full commutation relates to prospective benefits only and not to 
 
         past benefits.  When the above formula is applied in claimant's 
 
         case, the appropriate discount factor is ***** [444.59413].  That 
 
         number when multiplied by claimant's weekly rate of compensation 
 
         of $353.68 results in a fully commuted value of ***** 
 
         [$157,244.05.  See attachments A1 and A2 for the computation used 
 
         by the industrial commissioner in arriving at a fully commuted 
 
         value of $157,244.05.]  Defendants shall pay claimant that amount 
 
         with credit for the actual sums paid out in weekly benefits to 
 
         claimant from the date she requested commutation, that is, 
 
         February 25, 1994, to the date of actual payment of the full 
 
         commutation.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
              
 
              THEREFORE, it is ordered:
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              That defendants pay claimant fully commuted benefits as set 
 
         forth in the above conclusions of law.
 
         
 
              That defendants shall pay the costs of this matter including 
 
         the transcription of the hearing.  
 
         
 
              Signed and filed this ____ day of September, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David J. Mansheim
 
         Attorney at Law
 
         1201 Highway 20
 
         Parkersburg, IA 50665
 
         
 
         Mr. Kevin R. Rogers
 
         Attorney at Law
 
         528 W 4th St
 
         P.O. Box 1200
 
         Waterloo, IA 50704
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       1200
 
                                       Filed September 30, 1994
 
                                       Byron K. Orton
 
                                       
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         KIMBERLY FRIELING,              :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 963069
 
         VIKING PUMP - HOUDAILLE,        :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         LIBERTY MUTUAL,                 :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         1200
 
         
 
              Deputy's determination that a full commutation of survivor 
 
         benefits was in the best interests of claimant affirmed on appeal 
 
         and arithmetical error on present value corrected.
 
         
 
 
            
 
            
 
            
 
            
 
                                              3303.10
 
                                              Filed June 17, 1994
 
                                              Helenjean M. Walleser
 
                      
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            KIMBERLY FRIELING,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 963069
 
            VIKING PUMP - HOUDAILLE, 
 
                                                E X P E D I T E D
 
                 Employer, 
 
                                                  H E A R I N G
 
            and       
 
                                                D E C I S I O N
 
            LIBERTY MUTUAL,     
 
                                                 (343 IAC 4.44)
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            3303.10
 
            
 
                 Twenty-nine-year-old surviving spouse who was only 
 
            dependent of decedent granted full commutation.  Claimant 
 
            was debt-free, had acquired monetary assets of over $140,000 
 
            since her spouse's death and had substantial job skills with 
 
            which she could support herself.  Claimant planned to 
 
            purchase farmland, an acreage for a home site and build a 
 
            home with proceeds of full commutation.  That claimant would 
 
            likely remarry were full commutation granted found not to be 
 
            a basis for denying commutation.  Standard is best interest 
 
            of claimant as determined by claimant's personal and 
 
            financial circumstances not that full commutation may result 
 
            in greater expense to defendants than would continued 
 
            receipt of weekly benefits and two year lump sum payment on 
 
            remarriage.  That continued receipt of weekly benefits would 
 
            produce a financial incentive to cohabitate and not remarry 
 
            found a personal circumstance that showed full commutation 
 
            was in claimant's best interest.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            KIMBERLY FRIELING,            :
 
                                          :       File No. 963069
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      E X P E D I T E D
 
                                          :
 
            VIKING PUMP - HOUDAILLE,      :        H E A R I N G
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :       (343 IAC 4.44)
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
                                          :
 
                                          :
 
            ------------------------------------------------------------
 
                           STATEMENT OF THE CASE
 
            
 
                 This is an expedited contested case proceeding 
 
            claimant, Kimberly Frieling, has brought against the 
 
            employer of her deceased spouse, Dennis Frieling, that is, 
 
            Viking Pump - Houdaille, and its insurance carrier, Liberty 
 
            Mutual, to receive a full commutation of benefits under rule 
 
            343 IAC 4.44(f).  This proceeding was held in Waterloo, 
 
            Iowa, on May 23, 1994, pursuant to a hearing assignment 
 
            order of March 15, 1994.
 
            
 
                 The record of the proceeding consists of the testimony 
 
            of claimant and of claimant's exhibits A through C and 
 
            defendants' exhibits 1 and 2.
 
            
 
                                       ISSUE
 
            
 
                 The sole issue presented is whether claimant is 
 
            entitled to a full commutation under section 85.45.  In that 
 
            the period during which compensation is payable can be 
 
            definitely determined by using the life expectancy and 
 
            remarriage probability table under rule 343 IAC 6.3(3), the 
 
            sole issue is whether commutation of benefits would be in 
 
            the best interest of claimant as a person entitled to 
 
            compensation pursuant to section 85.31(a).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered the evidence, finds:
 
            
 
                 Claimant is the 29-year-old surviving spouse of Dennis 
 
            Frieling, who died in an injury arose out of and in the 
 
            course of his employment on October 16, 1989.  Decedent had 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            no other dependents.  Claimant is a high school graduate and 
 
            has the equivalent of six years of post high school 
 
            training.  Claimant has an associate of applied science 
 
            degree in horticulture; is certified as a radiologic 
 
            technician; and, has an associate of arts degree in 
 
            accounting received in May 1993.  Claimant was working as a 
 
            radiologic technician on a full-time basis at the time of 
 
            decedent's death.  She then earned $10 per hour.  Claimant 
 
            left that position after decedent's death and did not again 
 
            seek employment until completion of her accounting program.  
 
            Claimant now works approximately 20 hours per week for $7 
 
            per hour as an administrative assistant with accounting and 
 
            bookkeeping duties.  Claimant acknowledges that she could 
 
            increase her earnings by increasing hours worked and has 
 
            voluntarily elected not to do so.
 
            
 
                 Claimant has received a weekly workers' compensation 
 
            benefit of $353.68 since decedent's death.  Claimant 
 
            currently lives rent-free in an older farm house on property 
 
            her boyfriend, Ted Junker, rents.  Her only current living 
 
            expenses are food, gas, clothing and utilities.  Claimant 
 
            has no current outstanding indebtedness.  She has assets as 
 
            follows:  Three certificates of deposit of $21,516.53, 
 
            $20,000, and $17,572, respectively, totaling $59,088.36; 
 
            additionally, claimant had a checking account balance as of 
 
            April 30, 1994, of $80,193.72.  Claimant has accumulated 
 
            these assets from the proceeds of decedent's life insurance 
 
            policy in the amount of $50,000 and from savings from weekly 
 
            workers' compensation benefits received.  As of May 5, 1994, 
 
            the insurer had paid claimant $83,973.87 in weekly benefits.  
 
            Additionally, claimant paid off approximately $2,000 in 
 
            outstanding debt on home appliances subsequent to decedent's 
 
            death as well as approximately $4,500 on an outstanding car 
 
            loan.  Claimant also paid all of her school expenses out of 
 
            pocket and purchased a car for $11,000 cash since decedent's 
 
            death.
 
            
 
                 Claimant would receive approximately $164,286.12 were 
 
            she to receive a full commutation at this time.  Claimant 
 
            plans to purchase 80 acres of farmland at $850 per acre, 
 
            totaling $68,000 and to purchase an acreage for $30,000 on 
 
            which to construct a house with an approximate construction 
 
            cost of $150,000.  Claimant would also need to use 
 
            approximately $100,000 of her accumulated personal funds to 
 
            achieve these goals.  Claimant reported she would receive 
 
            personal satisfaction from having a newer home and an 
 
            acreage which she could pursue her horticultural interests.  
 
            She indicated that were she to make a down payment with her 
 
            current funds and secure a loan for the balance, her 
 
            mortgage interest would be approximately 8 to 8.5 percent.  
 
            Of the 80 acres, 40 acres are tillable.  The tillable 
 
            acreage is in the Federal Crop Conservation Reserve Program 
 
            through 1998. The federal government pays the current owner 
 
            $100 per acre for the nonuse of the land for crop 
 
            production.  Claimant expressed her belief that she could 
 
            receive approximately $120 per acre or $4,800 per year were 
 
            she to rent the tillable acres for crop production.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant also felt that she could rent the remaining land as 
 
            pasture.  She was not aware of the going rate for pasture 
 
            rental, however.  Likewise, claimant was not aware of the 
 
            cost for maintenance of fences or cleaning of waterways and 
 
            did not know the appreciation of area farmland in the last 
 
            decade.
 
            
 
                 Claimant acknowledged that the 80 acre plot she wishes 
 
            to purchase is across from farm land that Ted Junker rents 
 
            and farms.  She acknowledged that she might rent her 
 
            property to Mr. Junker and also stated she might rent it to 
 
            another individual depending on the best price she would 
 
            receive.
 
            
 
                 Mr. Junker gave claimant a gold ring with five small 
 
            diamonds as a graduating gift when she received her 
 
            associate of arts in accounting degree.  The undersigned 
 
            observed that ring at the time of hearing.  The ring could 
 
            not be characterized as a traditional "engagement diamond."  
 
            The undersigned notes, however, that as between men and 
 
            women, rings containing diamonds generally are neither given 
 
            or received without some significance.  Claimant 
 
            acknowledged that Mr. Junker has expressed a desire to marry 
 
            claimant.  Claimant denied that she desired to marry Mr. 
 
            Junker.  Claimant reported that she wishes to keep her 
 
            freedom and that she does not wish to lose her workers' 
 
            compensation benefits.  She further agreed that she might 
 
            cohabit with Mr. Junker in lieu of marriage if the marriage 
 
            would result in the loss of her weekly benefits were the 
 
            full commutation not granted.  Should claimant marry without 
 
            having received a full commutation of benefits under the 
 
            life expectancy and remarriage tables, claimant's two year 
 
            lump sum payment would equal $36,782.72 (104 weeks x 
 
            $353.68).
 
            
 
                 Claimant's attorney representing her in this petition 
 
            for full commutation is being paid $75 per hour and had 
 
            devoted an estimated 12 to 15 hours to claimant's case as of 
 
            time of hearing.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Section 85.31(1)(a) provides:
 
            
 
                    1.  When death results from the injury, the 
 
                 employer shall pay the dependents who were wholly 
 
                 dependent on the earnings of the employee for 
 
                 support at the time of the injury, during their 
 
                 lifetime, compensation upon the basis of eighty 
 
                 percent per week of the employee's average weekly 
 
                 spendable earnings, commencing from the date of 
 
                 death as follows:
 
            
 
                    a.  To the surviving spouse for life or until 
 
                 remarriage, provided that upon remarriage two 
 
                 years' benefits shall be paid to the surviving 
 
                 spouse in a lump sum, if there are no children 
 
                 entitled to benefits.
 
            
 
                 Section 85.45, in relevant part, provides:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                    Future payments of compensation may be commuted 
 
                 to a present worth lump sum payment on the 
 
                 following conditions:
 
            
 
                    1.  When the period during which compensation 
 
                 is payable can be definitely determined.
 
            
 
                    2.  When it shall be shown to the satisfaction 
 
                 of the industrial commissioner that such 
 
                 commutation will be for the best interest of the 
 
                 person or persons entitled to the compensation, or 
 
                 that periodical payments as compared with a lump 
 
                 sum payment will entail undue expense, hardship, 
 
                 or inconvenience upon the employer liable 
 
                 therefor.
 
            
 
                 The standard to be applied in determining whether a 
 
            commutation is in the best interest of claimant was 
 
            originally established in Diamond v. Parsons Company, 256 
 
            Iowa 915 (1964) and affirmed in Dameron v. Neumann Brothers, 
 
            Inc., 339 N.W.2d 160 (Iowa 1983).  Indeed, the Dameron court 
 
            reasserted that the industrial commissioner should not act 
 
            as an unyielding conservator of claimant's property in 
 
            disregard of claimant's desires and reasonable plans just 
 
            because success in the future is not assured.  Dameron 
 
            further indicated that the statutory guideline, best 
 
            interest of claimant, should focus on the worker's personal, 
 
            family and financial circumstances and the reasonableness of 
 
            worker's plans for using the lump sum proceeds.  Under 
 
            Dameron's analysis of Diamond, the following factors are to 
 
            be included in the consideration of whether claimant's 
 
            desire for a full commutation is consistent with claimant's 
 
            best interest:
 
            
 
                    1.  The worker's age, education, mental and 
 
                 physical condition, and actual life expectancy (as 
 
                 contrasted with information provided by actuarial 
 
                 tables).
 
            
 
                    2.  The worker's family circumstances, living 
 
                 arrangements, and responsibilities to dependents.
 
            
 
                    3.  The worker's financial condition, including 
 
                 all sources of income, debts and living expenses.
 
            
 
                    4.  The reasonableness of the worker's plan for 
 
                 investing the lump sum proceeds and the worker's 
 
                 ability to manage invested funds or arrange for 
 
                 management by others....
 
            
 
                 The Dameron court characterized the Diamond analysis as 
 
            involving a benefit-detriment balancing of factors, with the 
 
            worker's preference and the benefits to the worker of 
 
            receiving a lump sum payment weighed against the potential 
 
            detriment that would result if the worker invested unwisely, 
 
            spent foolishly or otherwise wasted the funds so that it no 
 
            longer provided the wage substitute intended by the workers' 
 
            compensation law.  It noted that under Diamond, a request 
 
            for commutation is approved on the best interest balancing 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            test unless the potential detriment to the worker outweighs 
 
            the worker's expressed preference and the demonstrated 
 
            benefits of commutation.
 
            
 
                 Dameron further stated that the Diamond analysis, with 
 
            its emphasis on the worker's own personal and financial 
 
            circumstances, makes good sense and again highlighted that 
 
            commutation turns on what is in the best interest of the 
 
            worker, not on what is in the best interest of the employer 
 
            or the insurance carrier and that the statute does not 
 
            permit denying commutation because of expense, hardship or 
 
            inconvenience to the employer.
 
            
 
                 Claimant has demonstrated that a full commutation is in 
 
            her best interest.  Claimant has training and job skills in 
 
            three different areas.  She is a young woman fully capable 
 
            of greater employment opportunities than those to which she 
 
            now avails herself.  While claimant's investment choices as 
 
            demonstrated by her current use of certificates of deposit 
 
            and checking account as ways of investing her income, may 
 
            not present the highest interest bearing or most lucrative 
 
            forms of investment, claimant's ability to acquire the 
 
            assets that she has acquired as well as her ability to 
 
            achieve debt-free status in the time subsequent to her 
 
            spouse's death demonstrate that claimant is capable of 
 
            managing her own assets.  Likewise, while the income that 
 
            claimant can expect from purchase of farmland were it to 
 
            remain in the crop conservation program or were she to 
 
            subsequently rent it out may not be large, real estate both 
 
            as potentially productive farmland and as a home acreage are 
 
            valuable and appropriate assets for claimant.  Given 
 
            claimant's debt-free status; her ability to earn an income 
 
            for daily living expenses from her own education and 
 
            training; and claimant's expressed desire to fully commute 
 
            funds in order to assist her in acquiring this real estate 
 
            without needing to undertake a mortgage arrangement; 
 
            claimant has demonstrated that full commutation of her 
 
            remaining benefits is in her best interest.
 
            
 
                 Defendants have raised the specter of claimant's 
 
            potential remarriage to Mr. Junker.  We do not doubt that 
 
            defendants likely are correct in their surmising that should 
 
            full commutation be granted, claimant will remarry.  That 
 
            defendants will incur less expense were claimant to remarry 
 
            while receiving weekly benefits and, therefore, be entitled 
 
            only to a two year lump sum payment of benefits is not a 
 
            proper consideration in determining whether claimant's 
 
            request for full commutation is appropriate.  The standard 
 
            is what is in claimant's best interest given claimant's 
 
            personal and financial circumstances.  Claimant's financial 
 
            circumstances both as measured by her current situation and 
 
            as measured by her plans for investment of the fully 
 
            commuted funds are certainly consistent with her preference 
 
            for a full commutation.  Likewise, claimant's personal 
 
            circumstance, that she would prefer to have the freedom to 
 
            remarry as opposed to needing to weigh remarriage versus 
 
            cohabitation by financial incentives and disincentives to 
 
            remarriage is also in claimant's best personal interest.
 
            
 
                 Defendants argue that they are entitled to a credit for 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            benefits previously paid claimant.  We find no merit to 
 
            defendants' argument that failure to grant them a credit 
 
            would result in claimant receiving certain benefits twice 
 
            under a full commutation.  Claimant's full commutation is 
 
            determined under the life expectancy and remarriage tables.  
 
            It is then appropriately discounted to account for the time 
 
            between time of requested commutation and the weeks between 
 
            the date commutation was sought and the upcoming anniversary 
 
            of the decedent's death.  Hence, the full commutation 
 
            relates to prospective benefits only and not to past 
 
            benefits.  When the above formula is applied in claimant's 
 
            case, the appropriate discount factor is 464.5050.  That 
 
            number when multiplied by claimant's weekly rate of 
 
            compensation of $353.68 results in a fully commuted value of 
 
            $164,286.12.  Defendants shall pay claimant that amount with 
 
            credit for the actual sums paid out in weekly benefits to 
 
            claimant from the date she requested commutation, that is, 
 
            February 25, 1994, to the date of actual payment of the full 
 
            commutation.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants pay claimant fully commuted benefits as set 
 
            forth in the above conclusions of law.
 
            
 
                 Defendants pay costs of this proceeding.
 
            
 
                 Signed and filed this ____ day of June, 1994.
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David J Mansheim
 
            Attorney at Law
 
            1201 Highway 20
 
            Parkersburg IA 50665
 
            
 
            Mr Kevin R Rogers
 
            Attorney at Law
 
            528 W 4th St
 
            P O Box 1200
 
            Waterloo IA 50704
 
            
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         JUDITH M. WILSON,               :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 963361
 
         MEREDITH/BURDA, INC.,           :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         CNA INSURANCE,                  :
 
                                         :
 
              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 
 
         February 28, 1994 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         
 
              Dr. Turner did initially, upon first examining claimant, 
 
         causally connect claimant's depression with her work injury.  
 
         This opinion was based on the history claimant gave the doctor, 
 
         which did not fully advise him of her prior history with similar 
 
         psychological problems.  As Dr. Turner's course of treatment went 
 
         on, his views on the cause of claimant's mental state appear to 
 
         have changed.  By the time of his deposition, Dr. Turner was not 
 
         willing to attribute claimant's mental condition to her work 
 
         injury.
 
         
 
              It is acknowledged that claimant does not have to show that 
 
         her work injury was the only cause of her current condition; it 
 
         is sufficient if claimant has shown that her work injury is a 
 
         substantial cause.  However, taken as a whole, Dr. Turner's 
 
         testimony is so equivocal as to constitute, at best, an opinion 
 
         that claimant's condition may possibly be caused by her work 
 
         injury.  This does not meet claimant's burden of proof on this 
 
         issue. 
 
         
 
              Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of September, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         6959 University Ave.
 
         Des Moines, Iowa 50311-1540
 
         
 
         Ms. Janice Herfkens
 
         Mr. Charles E. Cutler
 
         Attorneys at Law
 
         729 Insurance Exchange Bldg
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
                                       5-1108
 
                                       Filed September 26, 1994
 
                                       Byron K. Orton
 
                                       
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         JUDITH M. WILSON,               :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 963361
 
         MEREDITH/BURDA, INC.,           :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         CNA INSURANCE,                  :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         5-1108
 
         
 
              Work injury not shown to cause fibromyalgia from "head to 
 
         toe" or mental impairment.
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUDITH M. WILSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 963361
 
            MEREDITH/BURDA, INC.,         :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                                  D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            in arbitration of claimant Judith M. Wilson against her 
 
            former employer, Meredith/Burda, Inc., and its insurance 
 
            carrier, CNA Insurance.  Ms. Wilson sustained a work related 
 
            injury in a fall on October 30, 1989, and now seeks benefits 
 
            under the Iowa Workers' Compensation Act.  The parties 
 
            dispute the extent of her disability, especially whether the 
 
            incident caused mental injury.  A hearing was accordingly 
 
            held in Des Moines, Iowa on August 17, 1993.  Joint exhibits 
 
            1-146 and defendants' exhibits 1-4 were received into 
 
            evidence along with the testimony of claimant, Rodney Young, 
 
            Jeff Johnson, Edna Schultz, Richard Schuster, Nancy Prall 
 
            and Diane McGuire.
 
            
 
                                     ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of her employment on 
 
                    October 30, 1989;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  If mental injury is not established, 
 
                    entitlement to healing period benefits 
 
                    should be from October 9, 1990 through 
 
                    December 16, 1991;
 
            
 
                    4.  Permanent disability should be 
 
                    compensated industrially;
 
            
 
                    5.  At the time of injury, claimant was 
 
                    married and entitled to two exemptions;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    6.  Psychiatric and psychological treatment 
 
                    and the cost thereof is reasonable and 
 
                    necessary; and,
 
            
 
                    7.  Defendants paid 137.714 weeks of 
 
                    compensation at the rate of $237.17 prior to 
 
                    hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether the work injury caused mental 
 
                    disability;
 
            
 
                    2.  If so, the extent of healing period 
 
                    entitlement;
 
            
 
                    3.  The extent of permanent disability;
 
            
 
                    4.  The rate of compensation; and,
 
            
 
                    5.  Entitlement to medical benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Judith Wilson, 50 years of age at hearing, left school 
 
            before completing the tenth grade and has no further 
 
            education.  She did not enter the competitive labor market 
 
            until the 1960's, following which she was employed as a 
 
            factory worker, laborer, and nurses' aide.  From July 1973 
 
            until October 1990, claimant was employed as a bookbinder II 
 
            for Meredith/Burda, a large publishing company.  Claimant's 
 
            duties include operation of various bookbinding machines and 
 
            hand repair of books.  According to Jeff Johnson, a 
 
            vocational rehabilitation specialist, all of claimant's 
 
            previous jobs were basically unskilled, requiring 30 days or 
 
            less of training.
 
            
 
                 Claimant was paid an hourly wage.  During the thirteen 
 
            weeks prior to October 30, 1989, she worked (not counting 
 
            overtime premiums) 226.20 hours at an hourly wage of $10.75, 
 
            36.0 hours at $10.38 and 212.50 hours at $9.66.  Total 
 
            earnings for those thirteen weeks, excluding overtime 
 
            premiums, were $4,858.08, or a weekly average of $373.69.  
 
            The hours claimant worked varied widely on a weekly basis, 
 
            from 22.2 up to 48.0.  Claimant even worked 52 hours during 
 
            the 14th week prior to the work injury.  The record does not 
 
            disclose that any of the 13 weeks prior to injury were 
 
            unrepresentative.  Claimant worked fewer than 30 hours 
 
            during three of the 13 weeks and in excess of 40 hours 
 
            during four weeks.  Claimant testified to being absent for 
 
            various reasons (illness, funerals, etc.) during weeks in 
 
            which fewer than 36 hours were worked.  She customarily 
 
            worked three 12-hour shifts per week, with some overtime.
 
            
 
                 The work injury occurred when claimant suffered a slip 
 
            and fall while loading a machine.  She claims that the fall 
 
            injured her right knee, hands, arms, shoulders and neck. 
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant underwent conservative treatment, but 
 
            complained of progressively worsening pain over the next 
 
            year.  She was eventually referred to an orthopedic surgeon, 
 
            Scott Neff, M.D., who undertook a surgical procedure of the 
 
            left shoulder on October 9, 1990.  Preoperative diagnosis 
 
            was of impingement syndrome of the left shoulder with 
 
            chronic subacromial bursitis and degenerative changes within 
 
            the acromioclavicular joint.  The surgery was described as: 
 
            (1) subacromial decompression and bursectomy; (2) excision 
 
            and release of the coracoacromial ligament; (3) Mumford 
 
            excision of clavicle.  Postoperative diagnosis was of 
 
            subacromial bursitis, degenerative changes in the 
 
            acromioclavicular joint and anterior acromial spurring.
 
            
 
                 Unfortunately, the procedure did not bring substantial 
 
            relief.  By February 18, 1991, Dr. Neff reported restricted 
 
            range of motion in the left shoulder and tenderness over the 
 
            medial border of the left scapula, the supraspinatus area 
 
            and left neck muscles.  The doctor concluded that claimant 
 
            had a soft tissue syndrome, which might be diagnosed as 
 
            fibromyalgia or myofascial syndrome.  Accordingly, he 
 
            referred claimant to a rheumatolgist, Lawrence J. 
 
            Rettenmaier, M.D.
 
            
 
                 On August 26, 1991, Dr. Neff wrote that claimant 
 
            suffered fibromyalgia and fibromyositis, but of non-work 
 
            origin.  By this time, Ms. Wilson was already complaining of 
 
            diffuse symptoms in the upper back, neck, legs "and so 
 
            forth."  Dr. Neff recommended a work hardening program, 
 
            since claimant was significantly deconditioned from her long 
 
            absence from work, and recommended a restriction against 
 
            "heavy repetitious lifting on a eight-hour basis the first 
 
            day."  By November 20, 1991, Dr. Neff concluded that 
 
            claimant could not return to her former job due to job 
 
            requirements not within her restrictions, presumably the 
 
            restriction against heavy repetitious lifting.  He assigned 
 
            50 percent of claimant's left shoulder problems to the 
 
            impingement syndrome which he had decompressed surgically 
 
            (and was work related) and 50 percent due to fibromyalgia 
 
            syndrome ("not specifically work related").  Claimant's 
 
            right shoulder problems were primarily due to 
 
            fibromyalgia.
 
            
 
                 On December 16, 1991, Dr. Neff rated impairment at 11 
 
            percent of the upper extremity pursuant to American Medical 
 
            Association Guides.  He assigned six percent of that 
 
            impairment to fibromyalgia or myofascial syndrome and five 
 
            percent to impingement syndrome related to work place 
 
            activities.
 
            
 
                 Dr. Rettenmaier saw claimant on a number of occasions 
 
            and developed an impression of fibryomalgia/chronic pain 
 
            syndrome.  His report of January 28, 1991 shows claimant 
 
            reporting that her work-related fall was only approximately 
 
            1.5-2.0 feet.  At first, claimant denied diffuse 
 
            musculoskeletal complaints.  However, by December 16, 1992, 
 
            when claimant followed up with Dr. Rettenmaier, complaints 
 
            were so diffuse that claimant described them as "as being 
 
            from head to toe."  Dr. Rettenmaier's letter of November 23, 
 
            1992 contained the following passage:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 (1)  Fibromyalgia/chronic pain syndrome.  As you 
 
                 are aware, the terminologies for these problems 
 
                 are often confusing.  She certainly meets criteria 
 
                 for fibryomalgia based on her diffuse 
 
                 musculoskeletal complaints and tender points.  As 
 
                 you are aware, the terminologies for the problems 
 
                 are quite confusing.  I believe chronic pain 
 
                 syndrome may also be an appropriate term for her 
 
                 situation.  Although not described in the 
 
                 scientific literature, it is often of note that 
 
                 patients may start out with one problem such as 
 
                 she had in her upper extremities, and seemingly 
 
                 develop the "all overs."  She seems to have 
 
                 developed this since her last evaluation here.
 
            
 
            (Exhibit 37, Page 74)
 
            
 
                 Dr. Rettenmaier also referred claimant to C. David 
 
            Smith, M.D., for evaluation of possible thoracic outlet 
 
            syndrome.  Dr. Smith concluded that the possibility of 
 
            thoracic outlet syndrome could not be excluded but remained 
 
            unconvinced that this was claimant's problem.  Other 
 
            diagnostic culprits could include carpal tunnel syndrome, 
 
            reflex sympathetic dystrophy, osteoarthritis of the neck and 
 
            myofascial pain syndrome.
 
            
 
                 Claimant was also seen for evaluation by Martin S. 
 
            Rosenfeld, D.O.  Dr. Rosenfeld's report of August 17, 1992 
 
            agreed that claimant had two diagnoses: impingement syndrome 
 
            to the left shoulder and fibryomalgia and chronic pain 
 
            problems.  Dr. Rosenfeld concluded that the fibryomalgia and 
 
            chronic pain were disabling "and with a negative history 
 
            prior to the injury" were probably a result of the work 
 
            injury, "but I feel these would be best dealt with by the 
 
            psychiatrist and psychologist and rheumatolgist on this case 
 
            rather than an orthopaedist."  Dr. Rosenfeld also assessed 
 
            impairment at 16 percent of the body as a whole, based five 
 
            percent for lack of strength and 11 percent for loss of 
 
            range of motion.  However, Dr. Rosenfeld's opinion on 
 
            causation is specifically based on an inaccurate history.  
 
            He reports that claimant denied any previous history of 
 
            shoulder problems or musculo-skeletal complaints prior to 
 
            the injury of October 30, 1989, and based his causation 
 
            opinion on that "negative history."  Chart notes of East Des 
 
            Moines Family Care Center, claimant's primary care 
 
            physicians, reflect a number of musculo-skeletal complaints 
 
            in 1989, but prior to the injury.  These include left 
 
            shoulder complaints on April 20 and September 21 (neck pain 
 
            and left shoulder pain for about one week; "claimant does 
 
            not recall any injury") with low back, neck pain and right 
 
            knee pain.
 
            
 
                 Claimant was also seen by a physiatrist, Donna J. 
 
            Bahls, M.D.  While Dr. Bahls does not specifically address 
 
            the causation issue with respect to fibryomalgia, the 
 
            following pertinent observation appears in her report of 
 
            March 11, 1992:
 
            
 
                 She also stated that her whole body hurts and she 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 was having this discomfort prior to the accident 
 
                 and stated they told her she had fibryomalgia.
 
            
 
                 Dr. Neff's opinion that the work injury did not cause 
 
            claimant's fibryomalgic condition is accepted as more 
 
            persuasive than the opinion of Dr. Rosenfeld.  Dr. Neff is a 
 
            treating surgeon, rather than a one-time evaluator.  Dr. 
 
            Rosenfeld's opinion is specifically based in part on an 
 
            incorrect history.  Claimant had symptoms predating the work 
 
            injury.  Dr. Rettenmaier, the rheumatologist, points out 
 
            that a fibryomalgic condition (which he has described as the 
 
            localized form of chronic pain syndrome) can appear first in 
 
            one joint, then in others.  This appears to be the case with 
 
            respect to Judith Wilson.  It is hard to see how a fall of 
 
            only two feet can cause progressive pain throughout the 
 
            body, from "head to toe."
 
            
 
                 Claimant also asserts that right knee pain is 
 
            attributable to the work injury.  She was seen for this 
 
            condition by Mark B. Kirkland, D.O., who reported in January 
 
            1993 that the knee pain was secondary to a prior right knee 
 
            injury and surgery in 1982, rather than the 1989 work 
 
            injury.  It is also noted that claimant saw her family 
 
            physician for right knee pain in 1989, but prior to the 
 
            injury.
 
            
 
                 Claimant also has substantial psychological problems.  
 
            These problems, which currently disable her totally from 
 
            employment, include depression, anxiety attacks, and a 
 
            seizure disorder of uncertain etiology and diagnosis.  Ms. 
 
            Wilson has a pre-injury history of anxiety disorder (panic 
 
            attacks and the like) and of seizure-like disorders.
 
            
 
                 Claimant's treating psychiatrist (not psychologist, as 
 
            is asserted in defendants' Contentions filed at hearing) is 
 
            Rick D. Turner, M.D.  Dr. Turner testified by deposition on 
 
            August 12, 1993.  
 
            
 
                 Dr. Turner agrees that the anxiety disorder is 
 
            independent of any work injury.  As to whether the work 
 
            injury caused or aggravated claimant's depressive order, Dr. 
 
            Turner has offered a wealth of diverse medical opinion all 
 
            by himself.
 
            
 
                 Dr. Turner originally concluded that claimant's 
 
            difficulties related to "her original injury as well as the 
 
            additional diagnosis of Fibromyalgia."  However, he was much 
 
            less certain by the time of his deposition.
 
            
 
                 Dr. Turner's original diagnosis was of major depressive 
 
            episode, history of generalized anxiety disorder, history of 
 
            shoulder injury, diagnosis of fibromyalgia, possible seizure 
 
            disorder and migraine headaches.  Incidentally, claimant's 
 
            history of migraine headaches also preexisted the work 
 
            injury.  As of July 21, 1993, Dr. Turner added a diagnosis 
 
            of "psychological factors affecting physical condition"; 
 
            that is, where significant psychological events worsen a 
 
            physical condition, in this case claimant's fibromyalgia and 
 
            shoulder injury.  The single most significant psychological 
 
            factor was illness in claimant's family, especially her 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            husband's serious heart ailment.  A secondary factor was the 
 
            actuality of disability and the litigation process.  Both 
 
            claimant's husband's heart attack and personal problems she 
 
            was having with her son probably had effect on her 
 
            psychiatric condition.
 
            
 
                 Dr. Turner offered testimony both supporting and 
 
            failing to support a causal link between the work 
 
            injury/fibromyalgia and claimant's depressive condition.  
 
            Examples include:
 
            
 
                    A.  Essentially.  It is possible the same could 
 
                 be said of her depression.  Depression may have a 
 
                 biological basis that might ultimately be genetic 
 
                 but was latent until the right combination of 
 
                 stresses ensued to precipitate or cause that 
 
                 depression.  The stresses of her disability, of 
 
                 the pain from her various maladies, and quite 
 
                 possibly the stresses of other life events, 
 
                 specifically her husband's illness, problems with 
 
                 her son, may have all contributed to the 
 
                 precipitation of this underlying biologic 
 
                 phenomenon.
 
            
 
                    Were she to have avoid the stresses of her 
 
                 injury, in other words, were she never to have the 
 
                 injury, she still may have experienced a 
 
                 depression.  I cannot say with a reasonable degree 
 
                 of medical certainty that she would have not 
 
                 experienced it.  In other words, it is difficult 
 
                 for me to say with certainty that the stresses of 
 
                 the injury and the pain result are the sole cause 
 
                 of her depression.  I would say with a reasonable 
 
                 degree of medical certainty they are at least a 
 
                 major factor.
 
            
 
                 And,
 
            
 
                    Q.  * * * If I understood your direct testimony 
 
                 correctly, please correct me if I'm wrong, you're 
 
                 telling me that you think the work incident of Ms. 
 
                 Wilson that she sustained on October 30, 1989, was 
 
                 a substantial factor in bringing about her 
 
                 depression, but was not the sole cause; am I 
 
                 correct?
 
            
 
                    A.  I'm saying that in my opinion it is a 
 
                 substantial factor, and it is difficult for me to 
 
                 say if it was the sole cause.
 
            
 
                    Q.  Right.  Exactly.  But there is no question, 
 
                 at least within a reasonable degree of certainty, 
 
                 that it was a substantial factor in bringing about 
 
                 her diagnosis of depression?
 
            
 
                    A.  In precipitating her depression, yes.
 
            
 
                 And,
 
            
 
                    Q.  That's fine.  I think, you told us on 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 direct, and I was writing as best I could, that it 
 
                 was difficult to say with certainty that the 
 
                 injury was the sole cause, but there is no 
 
                 question that the injury was a major factor; is 
 
                 that correct?
 
            
 
                    A.  Yes.
 
            
 
            (Turner Deposition, Pages 13, 17, 22, 23)
 
            
 
                 However, Dr. Turner simultaneously offered contrary 
 
            opinion:
 
            
 
                    Q.  Okay.  Given that, can you tell me, if 
 
                 that's your definition and my definition of 
 
                 substantial factor, did the 10-30-89 incident 
 
                 cause or aggravate her condition to the extent to 
 
                 bring about a diagnosis under affective disorders 
 
                 of 12.04? (Emphasis Supplied)
 
            
 
                    A.  My dilemma is that I literally do not know.
 
            
 
                    Q.  Okay.
 
            
 
                 And,
 
            
 
                    Q.  You understand when I ask this, Dr. Turner, 
 
                 I'm not asking about your knowledge.  I'm asking 
 
                 your opinion.  If it was your knowledge, we 
 
                 wouldn't have to ask your opinion.  In your 
 
                 opinion, did the 10-30-89 incident cause or 
 
                 aggravate her condition so as to cause a 
 
                 lightening up in her symptoms, make her more 
 
                 symptomatic in regard to the affective disorder 
 
                 that you told us she has? (Emphasis Supplied)
 
            
 
                    A.  I do not have a well-formed opinion on 
 
                 that.  I'm sorry that I can't answer more 
 
                 affirmatively.
 
            
 
                 And,
 
            
 
                    Q.  Do you think that your care and treatment 
 
                 that you rendered her is causally related to her 
 
                 work injury?
 
            
 
                    MS. HERFKENS:  Objection, asked and answered.
 
            
 
                    THE WITNESS:  I always wait for the judge.
 
            
 
                 BY MR. PRATT:
 
            
 
                    Q.  We don't have one.
 
            
 
                    A.  Yes.  I waited about five minutes kind of 
 
                 waiting for a response.  I'll have to go back to 
 
                 my testimony earlier that I am evenly split over 
 
                 whether it is caused.
 
            
 
            (Turner Deposition, Pages 21, 22, 39, 40)
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 As discussed later in this decision, claimant bears the 
 
            burden of proof in establishing the requisite causal nexus 
 
            between the work injury and her mental impairment.  Anxiety 
 
            attacks and ill defined seziure disorders predated the work 
 
            injury.  Dr. Turner agrees that the anxiety attacks are 
 
            completely independent of the work injury.  The seizure 
 
            activity is actually a factor which may exacerbate 
 
            claimant's depression.
 
            
 
                 As seen, Dr. Turner is ambivalent as to whether a 
 
            causal nexus exists between the work injury and claimant's 
 
            depressive condition.  Medical evidence must establish such 
 
            a causal nexus is probable rather than merely possible.  
 
            And, equally significant, Dr. Turner specifically treats 
 
            claimant's fibryomalgic pain as a causative factor, without 
 
            distinguishing that condition from the impingement syndrome 
 
            surgically treated by Dr. Neff.  Dr. Turner concedes that he 
 
            does not know whether the fibryomalgia is work related, and 
 
            this decision finds otherwise.  As a result, claimant has 
 
            not met her burden of proof in establishing a causal link 
 
            between the work injury and her current depressive 
 
            condition.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The evidence establishes a causal link between the 
 
            original work injury and the impingement syndrome surgery 
 
            performed by Dr. Neff.  The evidence, as has been seen, 
 
            fails to establish a causal link between claimant's right 
 
            knee problems or her extensive fibryomalgia, including that 
 
            of the left shoulder.  And, most significantly, the evidence 
 
            does not prove a causal link between the work injury and 
 
            claimant's current mental impairment.
 
            
 
                 The parties have agreed that healing period benefits 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            should be paid from October 9, 1990 through December 16, 
 
            1991 (62.0 weeks) if mental causation is not established.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which 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
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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 treating surgeon, Dr. Neff, has restricted claimant 
 
            from repetitive heavy lifting.  As a result of this 
 
            restriction, claimant is foreclosed from her former 
 
            employment at Meredith/Burda.  Claimant is much more 
 
            disabled than this, of course, but that additional 
 
            disability has not been causally linked to the work injury.  
 
            Industrial disability, must, accordingly, be calculated as 
 
            though that additional disability did not exist.  Claimant 
 
            is now 50 years of age and with a limited educational 
 
            background and work history.  However, the restriction 
 
            imposed by Dr. Neff, although disqualifying her from her 
 
            last job, would not necessarily foreclose other employment 
 
            for which claimant might be suited, including lighter 
 
            factory work or, more problematically, employment as a 
 
            nurses' aide.  Extensive retraining seems unlikely, even if 
 
            claimant did not suffer from fibryomalgia and emotional 
 
            problems.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Given then these factors in specific and the record 
 
            otherwise in general, it is held that claimant has sustained 
 
            a permanent partial disability equivalent to 20 percent of 
 
            the body as a whole, or 100 weeks.
 
            
 
                 The only unpaid medical benefits in dispute relate to 
 
            claimant's mental condition.  As seen, these expenses are 
 
            not shown to be causally related to the work injury.
 
            
 
                 As discussed above, claimant's gross average weekly 
 
            wage during the 13 weeks prior to injury was $373.69.  The 
 
            parties stipulated to a marital status of married and two 
 
            exemptions.  The rate tables published by the commissioner 
 
            in effect at the time of injury show that an individual so 
 
            situated is entited to a compensation rate of $237.74. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant sixty (60) weeks of 
 
            healing period benefits at the rate of two hundred 
 
            thirty-seven and 74/100 dollars ($237.74) commencing October 
 
            9, 1990.
 
            
 
                 Defendants shall pay one hundred (100) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred thirty-seven and 74/100 dollars ($237.74) commencing 
 
            December 17, 1991.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 Accrued weekly benefits shall be paid with statutory 
 
            interest calculated from the date each payment was due.
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines Iowa 50311-1540
 
            
 
            Ms Janice Herfkens
 
            Mr Charles E Cutler
 
            Attorneys at Law
 
            729 Insurance Exchange Building
 
            Des Moines Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1108
 
                                           Filed February 28, 1994
 
                                           DAVID R. RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUDITH M. WILSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 963361
 
            MEREDITH/BURDA, INC.,         :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                                 D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Work injury not shown to cause fibromyalgia from "head to 
 
            toe" or mental impairment.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         MICHAEL LYKINS,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :    File Nos. 1003228/996358
 
                                         :              963375/1043918
 
         3-M COMPANY,                    :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         OLD REPUBLIC INSURANCE CO.,     :
 
                                         :
 
              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 
 
         February 23, 1994 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         
 
              Claimant's industrial disability resulting from his 
 
         work-related injuries is 20 percent.
 
         
 
              That claimant and defendants shall share equally the costs 
 
         of the appeal including transcription of the hearing.
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jerry L. Schnurr, III
 
         Attorney at Law
 
         P.O. Box 952
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       5-1803
 
                                       Filed October 7, 1994
 
                                       Byron K. Orton
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         MICHAEL LYKINS,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :    File Nos. 1003228/996358
 
                                         :              963375/1043918
 
         3-M COMPANY,                    :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         OLD REPUBLIC INSURANCE CO.,     :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         5-1803
 
         
 
              Claimant awarded 20 percent industrial disability.
 
         
 
              He had sustained several injuries at work and underwent two 
 
         back surgeries.
 
         
 
              Work restrictions included limited lifting abilities and 
 
         bending activity.  His impairment was between 12 and 16 percent.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MICHAEL LYKINS,               :
 
                                          :        File Nos. 963375,  
 
                                                             996358
 
                 Claimant,                :          1003228, 1043918
 
                                          :
 
            vs.                           :
 
                                          :       A R B I T R A T I O N
 
            3-M COMPANY,                  :
 
                                          :          D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INS. CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Michael Lykins, against his employer, 3-M Company, 
 
            and its insurance carrier, Old Republic, as defendants.  
 
            Claimant filed three petitions in arbitration, and the 
 
            parties agreed to also have resolved a non-litigated case, 
 
            agency file number 1043918.  The first report in this file 
 
            indicates claimant sustained an injury to his back on 
 
            November 30, 1992.  Other injury dates pled include 
 
            September 10, 1990 (agency file number 963375); July 16, 
 
            1991 (agency file number 996358); and, October 3, 1991 
 
            (agency file number 1003228).  
 
            
 
                 The matter came on for hearing on January 31, 1994, at 
 
            Fort Dodge, Iowa.  The record in the case consists of 
 
            testimony from the claimant, Paula Lykins (claimant's wife), 
 
            Peggy Ann Pollard (safety/health supervisor for 3-M), and 
 
            Mary Beeson (production supervisor); and, joint exhibits 
 
            1-15. 
 
            
 
                                      ISSUES
 
            
 
                 The parties agreed that the only issue for resolution 
 
            is the extent of claimant's industrial disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Michael Lykins, was born on July 20, 1967.  
 
            At the time of the hearing, he was 26 years of age. After he 
 
            graduated from Roland Story high school in 1986, claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            began working for 3-M as a temporary worker.  He was 
 
            assigned to the packing department, where he packed 
 
            sandpaper.  His job duties required standing of more than 2 
 
            hours at a time, lifting, twisting and bending.  
 
            
 
                 Claimant attended Westmar College in Lemars for two and 
 
            one-half years, working towards a degree in elementary 
 
            education.  In January 1990, he quit school because he 
 
            obtained status as a permanent employee with 3-M.  Claimant 
 
            has pursued additional studies at Iowa State University, 
 
            totaling approximately 12 hours.  
 
            
 
                 As a permanent employee, claimant worked as an abrasive 
 
            packer until the summer of 1990.  His job was classified as 
 
            a grade 2 (out of 11 grades), one of the lowest job grades 
 
            on the floor.  The higher the job grade, the higher the 
 
            hourly wages.  
 
            
 
                 Claimant advanced to a position as a roll lock 
 
            operator, a grade 6 job in the plant.  He operated a machine 
 
            which cuts and glues discs used for drills.  His position 
 
            required setting up the machine, cleaning parts to insure 
 
            proper operation, lifting 10 to 15 pounds, bending and 
 
            twisting.  
 
            
 
                 In September of 1990, claimant was working at his 
 
            machine when some of the discs were sticking.  As he used 
 
            his hand to lift up the discs, it became caught in the 
 
            machine, and pulled his hand towards the heaters of the 
 
            machine.  He hit the emergency stop button and yelled for 
 
            help.  By the time help arrived, claimant had extracted his 
 
            hand, which was burned.  Eventually, he underwent hand 
 
            surgery, performed by Mark Reece, M.D., at Iowa Methodist 
 
            Hospital.  In October of 1990, he was released to return to 
 
            work on a light duty basis due to the condition of his hand.  
 
            (Joint exhibit 1, pp. 19-26; 160)  At this time, claimant 
 
            also complained of low back, left leg and hip pain.  The 
 
            notes state that "he feels the pain is as bad now as when it 
 
            was at its worst this spring.  However, it is not radiating 
 
            down the leg as far and tends to be more in the hip and 
 
            upper thigh region."  (Jt. Ex. 1, p. 27)  A CT scan was 
 
            recommended, the results of which showed intervertebral disc 
 
            herniations at the L3-4, L4-5 and L5-S1 levels, slight 
 
            posterior displacement of the right S1 nerve root, and 
 
            spondylolysis at the L5 level.  (Jt. Ex. 1, p. 28)
 
            
 
                 From October through November 1990, additional visits 
 
            to the McFarland Clinic resulted in epidural steroid 
 
            injections.   He was given work restrictions of no lifting 
 
            greater than 15 pounds, no bending or crawling.  During this 
 
            time, claimant also received follow-up treatment for his 
 
            hand injuries from Dr. Reece.  (Jt. Ex. 1, pp. 33-41)
 
            
 
                 In December 1990, claimant underwent an MRI, which 
 
            confirmed the CT scan test results.  On December 19, 1990, 
 
            Claimant underwent a lumbar laminotomy and diskectomy, 
 
            performed by Allen Lang, M.D.  (Jt. Ex. 1, pp. 44-45; 47-49)  
 
            Dr. Lang stated that claimant's "original symptoms were due 
 
            to a basketball injury in May of 1990 and then were 
 
            exacerbated with his work injury of September of 1990."  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            (Jt. Ex. 1, p. 50)
 
            
 
                 On January 25, 1991, claimant was released to return to 
 
            light duty work for three weeks, and once on regular duty, 
 
            was saddled with a permanent restriction of no lifting of 
 
            more than 50 pounds occasionally.  (Jt. Ex. 1, pp. 51-52)  
 
            Subsequently, claimant underwent additional therapy on his 
 
            left hand, and was required to use a pressure glove to 
 
            relieve pain.  Eventually, claimant was given a total 
 
            impairment of the left upper extremity of 5 percent.  (Jt. 
 
            Ex. 1, pp. 53-66; 96)
 
            
 
                 In July 1991, Dr. Lang decided that based on the single 
 
            level laminectomy/diskectomy with no residuals, claimant had 
 
            sustained a 7 percent permanent physical impairment of the 
 
            body as a whole.  (Jt. Ex. 1, p. 67)
 
            
 
                 On July 16, 1991, claimant was loading boxes at work, 
 
            and felt pain in his back.  Dr. Lange diagnosed a sprain, 
 
            took claimant off of work, prescribed pain medications, and 
 
            instructed him to begin flexibility exercises and a walking 
 
            program.  Another epidural injection was given in August 
 
            1991, and in September of 1991, claimant underwent an MRI to 
 
            rule out disc and impingement pathologies of the spinal 
 
            nerves.  (Jt. Ex. 1, pp. 68-83)
 
            
 
                 The results of the MRI showed a large disk herniation 
 
            at the L4 level, much larger than it was in December 1990.  
 
            Other notations include a small herniation at the L5 level, 
 
            and a small to moderately sized disk herniation at the L4-5 
 
            level, although it was small than in December, 1990.  (Jt. 
 
            Ex. 1, p. 86)
 
            
 
                 On October 3, 1991, claimant injured his back again 
 
            while packing sandpaper.  Several weeks later, he underwent 
 
            surgery to repair an extruded disc at the L3-4 level.  (Jt. 
 
            Ex. 1, pp. 97-114)  Follow-up visits chronicle claimant's 
 
            recovery.  (Jt. Ex. 115-120)  Claimant was released to 
 
            return to work, but the company was unable to accommodate 
 
            his 20 pound lifting restriction.  (Jt. Ex. 1, p. 121)
 
            
 
                 In August 1992, 3-M requested information from Dr. Lang 
 
            regarding claimant's ability to return to work as a packer.  
 
            A functional capacities evaluation form was supplied to Dr. 
 
            Lang, who believed claimant could not crawl or climb, but 
 
            could occasionally bend, squat, crouch, kneel and balance 
 
            and frequently reach above shoulder level, push and pull.  
 
            Weight to be carried was restricted to 10 pounds 
 
            continuously, up to 24 pounds frequently, up to 50 pounds 
 
            occasionally, and never more than 50 pounds.  While the 
 
            undersigned finds the results very difficult to read, 
 
            apparently claimant was able to lift up to 10 pounds 
 
            continuously, up to 24 pounds frequently, up to 50 pounds 
 
            occasionally and never more than 50 pounds.  Claimant could 
 
            use foot controls, was able to grasp repetitively with 
 
            either hand, and could frequently flex and rotate.  (Jt.   
 
            Ex. 1, p. 139)
 
            
 
                 According to the evidence, claimant returned to work in 
 
            September of 1992 and worked up to 56 hours per week.  In 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            November, he noticed increasing symptoms of pain in the 
 
            lumbar region and in the right leg.  He was removed from 
 
            full-time work. 
 
            
 
                 On December 15, 1992, Dr. Lang indicated in a letter 
 
            that claimant had not yet reached maximum medical 
 
            improvement.  He did, however, feel that since claimant had 
 
            two disc abnormalities with accompanying operations, that he 
 
            had sustained at least a 12 percent permanent impairment of 
 
            the whole person.  Dr. Lang calculated a 16 percent 
 
            impairment when his deposition was taken. (Jt. Ex. 15)  If 
 
            there were no resolution of his neurologic deficit, 
 
            additional permanency would be attributed to weakness, along 
 
            with permanent restrictions on lifting, pulling and bending 
 
            activities.  Dr. Lang stated that all of the back problems 
 
            appeared to be work aggravated.  (Jt. Ex. 1, p. 142)
 
            
 
                 Follow-up visits with Dr. Lang, as well as documents 
 
            from physical therapy sessions and a work hardening program, 
 
            can be found at joint exhibit 1, pages 144-156.  A final 
 
            functional capacities evaluation, dated June 2, 1993, 
 
            indicates claimant is able to squat, crawl, climb heights, 
 
            reach above shoulder level, crouch, kneel, balance and push 
 
            and pull up to 85 pounds on a continuous basis, but cannot 
 
            bend or stoop.  Furthermore, claimant can continuously carry 
 
            or lift up to 10 pounds, frequently lift or carry up to 34 
 
            pounds; occasionally lift or carry up to 50 pounds, but 
 
            cannot lift or carry more than 50 pounds.  He is able to 
 
            repetitively grasp and perform fine manipulations with his 
 
            hands, and can use his head and neck in static positions, 
 
            frequent flexing and rotating.  (Jt. Ex. 1, p. 157)
 
            
 
                 Dr. Lang confirmed these restrictions, but stated that 
 
            he would have imposed the same restrictions after claimant's 
 
            basketball injury in May, 1990.  (Jt. Ex. 15)  This is so 
 
            even though claimant had two back surgeries after May of 
 
            1990.  The undersigned would be remiss if she did not 
 
            mention claimant's basketball injury in May of 1990.  
 
            Apparently, claimant injured his low back and took some time 
 
            off of work.  He sought treatment at the McFarland Clinic, 
 
            where x-rays revealed mild to moderate disc space narrowing 
 
            at both the L4-5 levels, and mild "levo-scoliosis."  (Jt. 
 
            Ex. 1, p. 6)  He was treated conservatively, and returned to 
 
            light duty work in June of 1990.  (Jt. Ex. 1, pp 7-15)
 
            
 
                 Currently, claimant is still working as an abrasive 
 
            packer, which is a job grade 2, although he is a back-up 
 
            operator on a machine which has been assigned a job grade 10 
 
            classification.  This is a temporary assignment he can lose 
 
            at any time.  He works a considerable amount of overtime, 
 
            most of which is voluntary.  He has "posted," or applied for 
 
            two other jobs in the plant, but due to his restrictions, 
 
            was unable to secure these positions.  Physically, he stated 
 
            that his current job aggravates his condition, as he feel 
 
            pain in his low back and right leg on a regular basis.  Once 
 
            an avid basketball player, he is now unable to play, nor can 
 
            he golf, play tennis or climb hills.  He is able to fish.  
 
            
 
                 Prior to his injuries, claimant's job performance was 
 
            excellent, and he was considered a very good employee.  His 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            attendance was "100 percent."  (Jt. Ex. 2)  Currently, 
 
            claimant has missed so much work that his attendance is 
 
            being closely watched by the employer.  If claimant 
 
            continues to miss work, he can be discharged for cause.  
 
            Peggy Pollard explained that management will review why 
 
            claimant has missed work, and take appropriate actions.  She 
 
            also explained that his long-term disability was not counted 
 
            when the company was reviewing claimant's work attendance.    
 
            
 
                 Claimant has been educated with respect to the safety 
 
            policies he is to follow, and the appropriate actions he is 
 
            to take in order to work within his restrictions.  (Jt. Exs. 
 
            3-8; 10-13)
 
            
 
                 For some reason, the employer submitted evidence as to 
 
            claimant's average weekly earnings in 1990 calculated at the 
 
            rate used for 1994 wages.  The undersigned believes that 
 
            claimant's hourly rate, for a job grade 2 position prior to 
 
            the injury, was $8.27.  After he returned to his employment, 
 
            the hourly rate had increased to $8.67 for the same job 
 
            grade 2 position.  Currently, due to claimant's additional 
 
            job grade 10 duties, he earns $10.70 per hour.  (Jt. Exs. 9 
 
            and 14). 
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The sole issue to address is whether claimant has 
 
            sustained an industrial disability.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant is young, and is at the beginning of his most 
 
            productive years as an employee, especially as a production 
 
            employee.  
 
            
 
                 He has had a very rocky road to recovery after his 
 
            initial accident.  He has suffered numerous other injuries 
 
            to his low back, and has undergone two surgeries.  
 
            
 
                 Claimant has demonstrated his motivation by following 
 
            the physician's advice and participating in physical therapy 
 
            and work hardening programs.  Likewise, he has been able to 
 
            finally complete a successful return to work.  Claimant has 
 
            been able to work a substantial amount of overtime, and 
 
            earns an average of $637.64 per week.  
 
            
 
                 The employer has accommodated claimant's restrictions, 
 
            which do not seem to limit his ability to successfully 
 
            perform his job duties.  The troubling aspect of the case is 
 
            claimant's current problems with his attendance, and the 
 
            employer's method of disciplining his absences.  Some of his 
 
            lost time must be attributable to his ongoing back problems, 
 
            and it almost seems as though claimant is being punished for 
 
            having been injured at work.  Several of the documents have 
 
            a tone of admonishing the claimant for not following safety 
 
            procedures, but the undersigned believes claimant was always 
 
            just trying to perform his job functions in the best 
 
            possible way he could perform them. 
 
            
 
                 In any event, it is refreshing that the employer has 
 
            helped claimant return to suitable work in the plant, and 
 
            has provided help when claimant's job duties required 
 
            lifting heavier objects.
 
            
 
                 Claimant is earning more now than prior to his initial 
 
            injury.  He has no actual loss of earnings, and it is purely 
 
            speculative that claimant would have advanced to higher 
 
            paying jobs but for the injuries and resulting impairments 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            and work restrictions. 
 
            
 
                 After considering all of the factors enumerated above, 
 
            including claimant's age; his continued employment with the 
 
            defendant employer; a permanent impairment of 12-16 percent; 
 
            lifting and carrying restrictions of not more than 50 
 
            pounds; his recovery from two surgeries to his low back; 
 
            claimant's motivation; claimant's inability to perform all 
 
            functions of his job unassisted; and, his actual earnings, 
 
            it is determined that claimant has sustained a 20 percent 
 
            industrial disability. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred eighty-seven and 07/100 dollars ($287.07) per 
 
            week commencing June 1, 1992; 
 
            
 
                 That defendants shall pay accrued benefits in a lump 
 
            sum, and shall receive credit against the award for benefits 
 
            previously paid; 
 
            
 
                 That defendants shall pay interest on the award, as 
 
            provided for under Iowa Code section 85.20; 
 
            
 
                 That defendants shall pay the costs of this action; 
 
            
 
                 That defendants shall file a claims activities report 
 
            as required by the agency. 
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jerry Schnurr III
 
            Attorney at Law
 
            801 Carver Bldg
 
            P O Box 952
 
            Fort Dodge IA 50501
 
            
 
            Mr Roger L Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut St
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed February 23, 1994
 
                                                 Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MICHAEL LYKINS,               :
 
                                          :      File Nos. 963375,  
 
                                                           996358
 
                 Claimant,                       1003228, 1043918
 
                                          :
 
            vs.                           :
 
                                          :       A R B I T R A T I O N
 
            3-M COMPANY,                  :
 
                                          :          D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INS. CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            5-1803
 
            
 
            Claimant awarded 20 percent industrial disability.
 
            He had sustained several injuries at work and underwent two 
 
            back surgeries.
 
            Work restrictions included limited lifting abilities and 
 
            bending activity.  His impairment was between 12 and 16 
 
            percent.
 
            
 
 
            
 
 
 
 
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MICHAEL LYKINS,               :
 
                                          :      File Nos. 963375,  
 
                                                            996358
 
                 Claimant,                :          1003228, 1043918
 
                                          :
 
            vs.                           :
 
                                          :            A M E N D E D
 
            3-M COMPANY,                  :
 
                                          :              O R D E R
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INS. CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            The following language is added to the decision/order filed 
 
            February 23, 1994.
 
            That claimant shall pay a $65.00 filing fee for case No. 
 
            1043918.
 
            The decision remains the same in all other respects.
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
                                        ________________________________
 
                                        PATRICIA J. LANTZ
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jerry Schnurr III
 
            Attorney at Law
 
            801 Carver Bldg
 
            P O Box 952
 
            Fort Dodge IA 50501
 
            
 
            Mr Roger L Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut St
 
            Des Moines IA 50309