BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JUDITH A. WILLIAMS,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 964444
 
         UNITED PARCEL SERVICE,        :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE      :
 
         COMPANY,                      :
 
                                       :
 
              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 the deputy industrial commissioner erred in 
 
              finding that claimant's industrial disability was only 
 
              20%.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed January 5, 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.
 
         
 
              Judith A. Williams, 45 years of age at hearing, attended 
 
         school only through the tenth grade, but was awarded a GED 
 
         diploma in 1979.  She also has taken community college level 
 
         courses in accounting, typing, and psychology.  
 
         
 
              Ms. Williams' work history includes experience as a waitress 
 
         or carhop, work in a butcher shop, motel housekeeper, factory 
 
         worker, receptionist, and as a clerk and loader for defendant 
 
         United Parcel Service, a national package delivery enterprise.  
 
         Claimant worked for United Parcel Service (UPS) from March 1981 
 
         until February 1992.  Subsequently, claimant has held a part-time 
 
         clerical position (payroll and record keeping) for a trucking 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         concern.
 
         
 
              Claimant worked as a permanent part-time employee.  She 
 
         performed many clerical and miscellaneous tasks for UPS until 
 
         July 30, 1990, when she accepted a position as loader.  All jobs 
 
         at UPS require the ability to lift in excess of 70 pounds.
 
         
 
              Claimant was injured on September 19, 1990, when some 
 
         parcels fell on her left shoulder while she was loading a truck.  
 
         She eventually underwent arthroscopic surgery to her 
 
         (non-dominant) left shoulder on February 15, 1991.  The treating 
 
         surgeon, Mitchell H. Paul, D.O., reached a postoperative 
 
         diagnosis of detached anterior labrum, normal rotator cuff, some 
 
         nonspecific synovitis about the insertion of the biceps tendon; 
 
         and, subacromial impingement syndrome with chronic subacromial 
 
         bursitis.
 
         
 
              Dr. Paul eventually imposed permanent lifting restrictions 
 
         of 35 pounds frequently and 70 pounds occasionally.  Based on 
 
         instability of the shoulder, Dr. Paul rated impairment at ten 
 
         percent of the upper extremity or five percent of the whole 
 
         person.
 
         
 
              UPS was unable to accommodate these restrictions and 
 
         permanently discharged claimant effective July 15, 1992. 
 
         
 
              Since then, claimant has [conducted an extensive job 
 
         search], shown good motivation in returning to work and is 
 
         currently employed in a part-time clerical position with a 
 
         trucking company, but at a much lower wage ($5.00 per hour versus 
 
         $12.61 per hour with fringe benefits).  Claimant worked 20-25 
 
         hours per week with UPS, and perhaps 10-20 at her current 
 
         job.*****[Claimant's employment with UPS was located in 
 
         Burlington, Iowa, a commute of 58 miles (one way) from her home.  
 
         Due to the commuting distance and costs associated therewith, 
 
         claimant will no longer accept employment in Burlington unless it 
 
         pays as much as she was earning per week at UPS.]
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed January 5, 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.
 
         
 
              The parties dispute the nature of claimant's permanent 
 
         disability, whether it be to the arm or to the body as a whole.  
 
         It is clear from Dr. Paul's records that impairment in this case 
 
         is to the shoulder, not the arm.  Accordingly, the injury is to 
 
         the body as whole and must be compensated industrially, Lauhoff 
 
         Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Pearson v. 
 
         Firestone Tire & Rubber Co., (Appeal Decision, August 31, 1993).
 
         
 
              Since claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 
 
         N.W.2d 899 (1935) as follows: "It is therefore plain that the 
 
         legislature intended the term 'disability' to mean 'industrial 
 
         disability' or loss of earning capacity and not a mere 
 
         'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience, 
 
         motivation, loss of earnings, severity and situs of the injury, 
 
         work restrictions, inability to engage in employment for which 
 
         the employee is fitted and the employer's offer of work or 
 
         failure to so offer.  Olson v. Goodyear Serv. Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 
 
         285, 110 N.W.2d 660 (1961).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              Claimant's age, intelligence and work experience suit her 
 
         for retraining.*****[Her medical restriction is not severe and 
 
         the impairment rating is low.]  Indeed, of all the jobs claimant 
 
         has ever held, the only one which is now barred by her medical 
 
         restriction is the work at UPS.*****
 
         
 
              *****[On the other hand], claimant does have a [very] 
 
         substantial loss of actual earnings.*****The inability of UPS to 
 
         keep claimant employed is itself indicative of industrial 
 
         disability.  [Claimant's very substantial loss of actual earnings 
 
         coupled with the employer's failure to offer work to the claimant 
 
         causes the industrial commissioner to conclude the claimant has 
 
         sustained industrial disability beyond the 20 percent found by 
 
         the deputy.
 
         
 
              Claimant's unwillingness to accept employment in Burlington 
 
         at less than her pre-injury weekly earnings does not diminish the 
 
         extent of her industrial disability.  The claimant was simply 
 
         placing a reasonable restriction on her employability due to the 
 
         commuting distance from her home and costs associated therewith.  
 
         Such a reasonable restriction does not act to diminish the extent 
 
         of claimant's industrial disability.]
 
         
 
              Considering then all of these factors in specific and the 
 
         record otherwise in general, it is held that claimant has 
 
         sustained a permanent industrial disability equivalent to 35 
 
         percent of the body as a whole, or 175 weeks.
 
         WHEREFORE, the decision of the deputy is affirmed and modified.
 
         
 
                                      ORDER
 
         THEREFORE, it is ordered:
 
         
 
              That defendants shall pay claimant one hundred seventy-five 
 
         (175) weeks of permanent partial disability at the stipulated 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         rate of one hundred eighty-five and 54/100 dollars ($185.54) 
 
         commencing February 3, 1992.
 
         
 
              That any accrued benefits shall be paid in a lump sum 
 
         together with statutory interest.
 
         
 
              That costs of this action are assessed to defendants.
 
         
 
         
 
              Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Patrick L Woodward
 
         Attorney at Law
 
         321 N Third Street
 
         Burlington Iowa 52601
 
         
 
         Mr Greg A Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport Iowa 52801-1596
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803.1
 
                                              Filed May 23, 1994
 
                                              BYRON K. ORTON
 
                      
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUDITH A. WILLIAMS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 964444
 
            UNITED PARCEL SERVICE,        :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803.1
 
            Shoulder injury was compensated industrially.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUDITH A. WILLIAMS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 964444
 
            UNITED PARCEL SERVICE,        :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon a petition in 
 
            arbitration filed by claimant Judith A. Williams against her 
 
            former employer, United Parcel Service, and its insurance 
 
            carrier, Liberty Mutual Insurance Company.  Ms. Williams 
 
            sustained a work-related shoulder injury on September 19, 
 
            1990, and now seeks benefits under the Iowa Workers' 
 
            Compensation Act.
 
            
 
                 A hearing was accordingly held in Burlington, Iowa on 
 
            August 24, 1993.  The record consists of claimant's exhibit 
 
            1, defendants' exhibit A-G and the testimony of claimant and 
 
            Deb Johnston, a rehabilitation specialist.
 
            
 
                                      ISSUES
 
            
 
                 The parties entered into the following stipulations:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on September 
 
                    19, 1990;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  Entitlement to healing period benefits 
 
                    is no longer in dispute;
 
            
 
                    4.  The commencement date for permanent 
 
                    partial disability benefits is February 3, 
 
                    1992;
 
            
 
                    5.  The appropriate rate of weekly 
 
                    compensation is $185.54;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                    6.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    7.  Defendants are entitled to credit for 
 
                    benefits voluntarily paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether claimant's disability should be 
 
                    compensated industrially or as a scheduled 
 
                    member injury;
 
            
 
                    2.  The extent of permanent disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Judith A. Williams, 45 years of age at hearing, 
 
            attended school only through the tenth grade, but was 
 
            awarded a GED diploma in 1979.  She also has taken community 
 
            college level courses in accounting, typing, and psychology.  
 
            
 
                 Ms. Williams' work history includes experience as a 
 
            waitress or carhop, work in a butcher shop, motel 
 
            housekeeper, factory worker, receptionist, and as a clerk 
 
            and loader for defendant United Parcel Service, a national 
 
            package delivery enterprise.  Claimant worked for United 
 
            Parcel Service (UPS) from March 1981 until February 1992.  
 
            Subsequently, claimant has held a part-time clerical 
 
            position (payroll and record keeping) for a trucking 
 
            concern.
 
            
 
                 Claimant worked as a permanent part-time employee.  She 
 
            performed many clerical and miscellaneous tasks for UPS 
 
            until July 30, 1990, when she accepted a position as loader.  
 
            All jobs at UPS require the ability to lift in excess of 70 
 
            pounds.
 
            
 
                 Claimant was injured on September 19, 1990, when some 
 
            parcels fell on her left shoulder while she was loading a 
 
            truck.  She eventually underwent arthroscopic surgery to her 
 
            (non-dominant) left shoulder on February 15, 1991.  The 
 
            treating surgeon, Mitchell H. Paul, D.O., reached a 
 
            postoperative diagnosis of detached anterior labrum, normal 
 
            rotator cuff, some nonspecific synovitis about the insertion 
 
            of the biceps tendon; and, subacromial impingement syndrome 
 
            with chronic subacromial bursitis.
 
            
 
                 Dr. Paul eventually imposed permanent lifting 
 
            restrictions of 35 pounds frequently and 70 pounds 
 
            occasionally.  Based on instability of the shoulder, Dr. 
 
            Paul rated impairment at ten percent of the upper extremity 
 
            or five percent of the whole person.
 
            
 
                 Unfortunately, UPS was unable to accommodate these 
 
            restrictions and permanently discharged claimant affective 
 
            July 15, 1992. 
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Since then, claimant has shown good motivation in 
 
            returning to work and is currently employed in a part-time 
 
            clerical position with a trucking company, but at a much 
 
            lower wage ($5.00 per hour versus $12.61 per hour with 
 
            fringe benefits).  Claimant worked 20-25 hours per week with 
 
            UPS, and perhaps 10-20 at her current job.  However, 
 
            claimant will no longer accept work in Burlington, where she 
 
            worked pre-injury.
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The parties dispute the nature of claimant's permanent 
 
            disability, whether it be to the arm or to the body as a 
 
            whole.  It is clear from Dr. Paul's records that impairment 
 
            in this case is to the shoulder, not the arm.  Accordingly, 
 
            the injury is to the body as whole and must be compensated 
 
            industrially, Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 
 
            (Iowa 1986); Pearson v. Firestone Tire & Rubber Co., (Appeal 
 
            Decision, August 31, 1993).
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant's age, intelligence and work experience suit 
 
            her for retraining and suitable employment in the medium job 
 
            category in any number of semi-skilled positions.  Indeed, 
 
            of all the jobs claimant has ever held, the only one which 
 
            is now barred by her medical restriction is the work at UPS.  
 
            Unfortunately, UPS pays better wages in the Burlington area 
 
            than most comparable jobs.  And, while claimant is now 
 
            earning much less per hour, and for fewer hours, this may 
 
            well be in part due to her current refusal to consider work 
 
            in the Burlington area.
 
            
 
                 Nonetheless, claimant does have a substantial loss of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            actual earnings and substantial loss in earning capacity.  
 
            The inability of UPS to keep claimant employed is itself 
 
            indicative of industrial disability.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent industrial disability equivalent to 
 
            twenty percent of the body as a whole, or 100 weeks.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay claimant one hundred (100) weeks 
 
            of permanent partial disability at the stipulated rate of 
 
            one hundred eighty-five and 54/100 dollars ($185.54) 
 
            commencing February 3, 1992.
 
            
 
                 Any accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Patrick L Woodward
 
            Attorney at Law
 
            321 N Third Street
 
            Burlington Iowa 52601
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport Iowa 52801-1596
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803.1
 
                                               Filed January 5, 1994
 
                                               DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUDITH A. WILLIAMS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 964444
 
            UNITED PARCEL SERVICE,        :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Shoulder injury was compensated industrially.
 
            
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GARY LUNDEEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 964602
 
            IOWA NATURAL CASING,     
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            THE TRAVELERS INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration brought by the claimant, 
 
            Gary Lundeen, against his employer, Iowa Natural Casing, and 
 
            its insurance carrier, The Travelers Insurance Company, to 
 
            recover benefits under the Iowa Workers' Compensation Act, 
 
            as a result of an injury sustained on September 7, 1990.  
 
            This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner in Sioux City, Iowa on July 
 
            27, 1993.  A first report of injury has been filed.  The 
 
            record consists of the testimony of claimant and of joint 
 
            exhibits 1 through 18.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            agreed to the following:
 
            
 
                 (1)  An employer-employee relationship existed between 
 
            claimant and Iowa Natural Casing on the date of injury;
 
            (2)  Claimant did receive an injury arising out of and in 
 
            the course of his employment on September 7, 1990;
 
            (3)  A causal relationship exists between claimant's work 
 
            injury and a healing period or temporary total disability 
 
            for which claimant has been paid all weekly benefits due;
 
            (4)  Claimant was paid temporary partial disability benefits 
 
            for a period from November 28, 1990 through December 3, 
 
            1990, in the amount of $129.38 representing all temporary 
 
            partial disability benefits due claimant;
 
            (5)  The commencement date for any permanent partial 
 
            disability due claimant is September 17, 1991;
 
            (6)  Claimant was married and entitled to three exemptions 
 
            and had a gross weekly wage of $361.40 on his injury date 
 
            resulting in a weekly rate of compensation of $235.07; and
 
            (7)  Claimant has been paid weekly benefits, apparently 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            temporary total disability, of $5,381.86 to which defendants 
 
            are entitled to a credit.
 
            Issues remaining for resolution are:
 
            (1)  Whether a causal relationship exists between the injury 
 
            and claimed disability; and
 
            (2)  The extent of claimant's permanent partial disability 
 
            benefit entitlement, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
            The deputy, having heard the testimony and considered the 
 
            evidence, finds:
 
            Claimant is a 51-year old high school graduate.  Claimant is 
 
            now employed and was employed on the date of injury at Iowa 
 
            Natural Casing, apparently a subsidiary of the Rumsom 
 
            Corporation.  Iowa Natural Casing operates under a contract 
 
            in the John Morrell hog processing plant.  Iowa Natural 
 
            Casing's employees collect hog casings for medicinal use.  
 
            Claimant has substantial prior work experience in the 
 
            packinghouse industry.  He has also worked as a 
 
            cabinetmaker's apprentice, a job which involved a 
 
            significant amount of sanding and gluing and has worked as a 
 
            cement finisher pouring and finishing concrete, a job he 
 
            characterized as very heavy manual labor.  Additionally, 
 
            claimant was self-employed for approximately 18 years in his 
 
            own building and grounds maintenance business.  There, 
 
            claimant performed minor repairs, did interior cleaning, and 
 
            lawn service and snow removal work.  He also supervised 
 
            several employees.  Claimant discontinued this business for 
 
            economic reasons and began work with Iowa Natural Casing in 
 
            December 1988.  
 
            
 
            Claimant initially experienced left shoulder pain while 
 
            assisting his supervisor in carrying a large roll of plastic 
 
            bags down some steps.  Claimant reported that substantial 
 
            time passed between that incident and his seeing Bryce A. 
 
            Robison, M.D., a family practitioner, who treated claimant 
 
            initially on September 10, 1990.  Dr. Robison diagnosed 
 
            claimant as having left shoulder and right elbow tendonitis 
 
            and costochondritis.  On September 27, 1990, Robison 
 
            reported the costochondritis had resolved.  
 
            
 
            Doug Meidema, D.O., saw Claimant on September 12, 1990 and 
 
            diagnosed overuse syndrome with tendonitis.  
 
            Dr. Robison referred claimant to Alan Pechacek, M.D., an 
 
            orthopedic surgeon, who apparently initially saw claimant on 
 
            October 12, 1990.  Dr. Pechacek agreed with claimant's prior 
 
            diagnosis.  He noted that claimant did not really complaint 
 
            of neck pain, soreness or stiffness although claimant had 
 
            occasional discomfort in the interscapular region.  Claimant 
 
            had no cervical tenderness or pain on motion and had full 
 
            neck range of motion.  On October 29, 1990, Dr. Pechacek 
 
            indicated that claimant was unable to return to either light 
 
            duty work or restricted work and suggested that were 
 
            claimant to seek alternate work, that work should be light 
 
            manual activity with claimant avoiding moderate to heavy 
 
            lifting, carrying, pushing, or pulling on a repetitive 
 
            basis.  On November 27, 1990, Dr. Pechacek released claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to return to full duty work although initially for only four 
 
            hours a day with return to full time work as tolerated.  On 
 
            December 11, 1990, Dr. Pechacek reported claimant had 
 
            returned to his regular job and suggested that as long as 
 
            claimant was able to the job without problems claimant 
 
            should be left in that situation.  Claimant continued to 
 
            treat with Dr. Pechacek through May 20, 1991.  On that date, 
 
            Dr. Pechacek noted his impression of rotator cuff tendonitis 
 
            and impingement of the left shoulder and medial and lateral 
 
            epicondylitis or extensor flexor tendonitis of the right 
 
            elbow.  Dr. Pechacek opined that both conditions either 
 
            resulted from or were aggravated by repetitive motion 
 
            required in claimant's work.  Dr. Pechacek indicated that 
 
            claimant was able to modify his work so as to minimize 
 
            symptoms and again stated that claimant should continue 
 
            claimant's job as long as claimant was able to do so.  Dr. 
 
            Pechacek advised that claimant had no further need for 
 
            orthopedic follow-up.  On April 22, 1991, Dr. Pechacek had 
 
            stated that a large part of claimant's problem resulted from 
 
            his work activity of repetitive motion, gripping, squeezing, 
 
            pushing, and pulling.  He stated that claimant may 
 
            eventually need to consider changing to a job not involving 
 
            repetitive motion.  
 
            
 
            John D. Kuhnlein, D.O., medical director of the Center for 
 
            Occupational Health, initially examined claimant on November 
 
            8, 1990.  Claimant then had full range of motion of the left 
 
            [upper] extremity.  Sensation was intact and claimant had 
 
            5/5 muscle strength in all shoulder muscle groups tested.  
 
            Claimant had mild pain in the right elbow with forced 
 
            flexion and extension and also had full range of motion in 
 
            the right elbow as well as 5/5 muscle strength for the 
 
            forearm flexors and extensors.  Claimant underwent 
 
            functional capacity evaluation on November 15, 1990.  Dr. 
 
            Kuhnlein reported claimant had poor endurance with fair body 
 
            mechanics for lifting, pushing and pulling with the upper 
 
            extremities.  Dr. Kuhnlein recommended that claimant 
 
            participate in a work hardening program.  Claimant did 
 
            participate in that program and also underwent physical 
 
            therapy on various occasions.  Despite this, claimant's 
 
            symptoms remain static.  
 
            
 
            Dr. Kuhnlein reexamined claimant on August 2, 1991.  He 
 
            indicated claimant was at maximum medical improvement and 
 
            could return to work with restrictions of not working above 
 
            shoulder or below waist and of not pushing, pulling, or 
 
            lifting greater than ten pounds.  On approximately September 
 
            3, 1991, Dr. Kuhnlein opined that claimant had no permanent 
 
            partial impairment of either the left shoulder or the right 
 
            elbow under the AMA Guides, Third Edition, Revised.  In a 
 
            medical report of November 19, 1991, Dr. Kuhnlein stated 
 
            that one reason for the restrictions Dr. Kuhnlein advised 
 
            for claimant was to permit claimant to work comfortably and 
 
            to prevent further injury.  He noted that since the work 
 
            hardening program had not changed claimant's symptomatology, 
 
            some limitations [on claimant's activity] were necessary to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            prevent claimant from sustaining further work injury. 
 
            Apparently, claimant was off work on account of his injury 
 
            in Summer 1991.  Claimant was then on layoff from Iowa 
 
            Natural Casing for another period.  Claimant was not 
 
            recalled to Iowa Natural Casing in order of seniority on 
 
            account of his restrictions.  
 
            
 
            Claimant sought further evaluation with Timothy C. 
 
            Fitzgibbons, M.D., an orthopedic surgeon, who performed an 
 
            independent evaluation on November 20, 1991.  Dr. 
 
            Fitzgibbons' findings were similar to that of Drs. Robison, 
 
            Kuhnlein, and Pechacek.  Dr. Fitzgibbons' impressions were 
 
            of probable post-traumatic cervical strain with referred or 
 
            radicular pain to the left upper extremity; probable 
 
            secondary left shoulder impingement pain; and chronic right 
 
            medical epicondylitis.  Fitzgibbons opined that claimant's 
 
            work [with Iowa Natural Casing] from December 1988 through 
 
            July 1991 had caused claimant's symptoms.  Dr. Fitzgibbons 
 
            opined that claimant had a permanent partial impairment of 5 
 
            percent to the body as a whole on account of the cervical 
 
            strain and referred left upper extremity and left shoulder 
 
            impingement pain and 2 percent impairment of the right upper 
 
            extremity on account of the elbow condition.  Dr. 
 
            Fitzgibbons opined that he would "absolutely" not restrict 
 
            claimant and would let claimant do what claimant's pain 
 
            allowed since returning to his former job with Iowa Natural 
 
            Casing would not do claimant irreparable damage.  
 
            Subsequent to Dr. Fitzgibbons' report, claimant successfully 
 
            grieved Natural Casing's failure to return him to work and 
 
            return to work without restrictions.  Prior to returning to 
 
            work with Iowa Natural Casing, claimant had worked for 
 
            approximately five to eight weeks at the John Morrell 
 
            packing plant cutting thyroid glands.  He stated that this 
 
            was a straight knife job where he used his right hand.  
 
            Claimant did not advise John Morrell of any restrictions 
 
            stating he did not do so since he was operating under Dr. 
 
            Fitzgibbons' opinion that he could work without 
 
            restrictions.  Claimant subjectively felt he worked harder 
 
            than his John Morrell co-employees whom claimant 
 
            characterized as visiting too much.  
 
            
 
            At defendants' request, Michael T. O'Neil, M.D., an 
 
            orthopedic surgeon, examined claimant on or about June 17, 
 
            1992.  Dr. O'Neil agreed that claimant had sustained a left 
 
            shoulder injury on account of his work incident and stated 
 
            that claimant's history was compatible with aggravation of 
 
            mild degenerative changes found in the AC joint.  He also 
 
            stated that claimant might have mild impingement syndrome 
 
            although that could not be clinically substantiated.  He 
 
            stated that claimant had mild right elbow recurring medial 
 
            and lateral humeral epicondylitis resulting from his normal 
 
            work activities.  O'Neil opined that claimant could return 
 
            to work without restrictions and would be able to tolerate 
 
            his work activities without aggravation of either the 
 
            shoulder or elbow complaints.  Dr. O'Neil did not assign 
 
            permanent partial impairment ratings for either claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            shoulder or elbow.
 
            As recited above, claimant's treating and examining 
 
            physicians offer differing opinions as to whether claimant 
 
            needs work restrictions and as to whether claimant has any 
 
            permanent partial impairment.  Sufficient evidence exists in 
 
            the record as a whole relative to physicians' belief that 
 
            claimant should have restrictions on account of his 
 
            continuing symptomatology and relative to physicians' belief 
 
            that claimant has permanent bodily impairment on account of 
 
            his conditions to establish that claimant does have some 
 
            permanent loss of use of his left shoulder and right elbow 
 
            function is a result of his work-related activities.  [We 
 
            have weighed claimant's need to establish an ability to 
 
            return to work without restrictions in light of claimant's 
 
            employers refusal to permit claimant to return to work with 
 
            restrictions.  Claimant reports continuing symptomatology on 
 
            his job.  The symptomatology claimant now reports is consist 
 
            with the symptomatology claimant was reporting to Dr. 
 
            Pechacek and Dr. Kuhnlein in 1991.  Given that, it is 
 
            reasonable to presuppose that but for the economic necessity 
 
            of remaining employed, claimant would be working under 
 
            restrictions Dr. Kuhnlein imposed in fall 1991]. 
 
            Claimant works at a waist high table where a moving belt 
 
            brings casings to claimant's work station.  Claimant must 
 
            remove the casings from the table, hang the casings on hooks 
 
            and cut them.  Claimant acknowledged that both hand are 
 
            "somewhat" required to do this job.  Casings weigh 12 to 20 
 
            pounds and a worker cuts 100 to 115 casings per hour on 
 
            average with a maximum of 140 casings per hour.
 
            
 
            Claimant currently earns $9 per hour.  He was earning $8.25 
 
            per hour on September 9, 1990.  Claimant expressed concern 
 
            as to his continued ability to do his job and expressed 
 
            concerns as to whether his job would be available should the 
 
            John Morrell packinghouse close.  Claimant reported that he 
 
            has difficulties in hanging pictures, climbing ladders, 
 
            combing his hair, and in drying his back, all of which 
 
            involve reaching or extension.  Claimant reported that he 
 
            cannot do heavy lifting for any extended period and 
 
            expressed doubts as to his ability to now do construction 
 
            work or the majority of packinghouse jobs.  Claimant 
 
            acknowledged that he still does his own yard work albeit 
 
            with some modifications.  Claimant acknowledged that he had 
 
            taken a two month leave of absence from work in order to 
 
            build a house in Colorado.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Our first concern is whether claimant has established a 
 
            causal relationship between his work injury and any 
 
            permanent disability.  
 
            
 
                 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
            As noted in the above findings, the opinions of the 
 
            physicians and the other evidence in the record when 
 
            considered as a whole present sufficient credible evidence 
 
            to establish taut claimant has some permanent loss of 
 
            function relative to both the left shoulder and the right 
 
            elbow on account of his work injury.  
 
            
 
            We next consider the nature and extent of claimant's 
 
            permanent partial disability.  In that claimant's permanent 
 
            partial disability is a disability to the left shoulder and 
 
            a disability to the right elbow both resulting from a single 
 
            date of injury, we must decide whether claimant's injury is 
 
            to be compensated under section 85.34(2)(s) or section 
 
            85.34(2)(u).  
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
            In Prewitt v. Firestone Tire and Rubber, (Appeal Decn., 
 
            August 12, 1992) the commissioner relied upon a treating 
 
            physician's opinion that a surgical decompression of the 
 
            right shoulder resulted in impairment only to the arm, 
 
            notwithstanding that the procedure included excision of the 
 
            distal clavicle in the shoulder.  Prewitt, however, 
 
            emphasized that it is the anatomical situs of the permanent 
 
            injury or impairment which determines whether the injury 
 
            should be compensated industrially or under the schedule.  
 
            Claimant's residual disability is in the shoulder and not 
 
            the arm.  Claimant's symptoms involve the shoulder as a part 
 
            of the trunk of the body and are such that Dr. Fitzgibbons 
 
            has even characterized the symptoms as creating a cervical 
 
            and not a left shoulder problem.  Given such, claimant's 
 
            shoulder condition results in the body as a whole injury.  
 
            Under that circumstance, claimant's injury as a whole, that 
 
            is, claimant's injury involving both the left shoulder and 
 
            the right elbow is properly assessed as a body as a whole 
 
            injury.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Dr. Fitzgibbons has opined that claimant has a 5 percent 
 
            body as a whole permanent partial impairment on account of 
 
            the symptoms generally characterized as related to the left 
 
            shoulder and a 2 percent permanent partial impairment of the 
 
            right elbow on account of the right elbow symptoms.  Under 
 
            the AMA Guides, 2 percent of the upper extremity converts to 
 
            a 1 percent body as a whole impairment.  Under the combined 
 
            values charts of the AMA Guides a 5 percent and a 1 percent 
 
            body as a whole impairment results in a total body as a 
 
            whole impairment of 6 percent.  That overall body as a whole 
 
            impairment rating is consistent with claimant's reported 
 
            symptomatology and with the restrictions other physicians 
 
            have imposed.  Both the restrictions and the impairment 
 
            rating suggest that claimant has mild permanent loss of use 
 
            relative to the body as a whole on account of his work- 
 
            related condition.  As longnoted, functional impairment is 
 
            an element to be considered in determining industrial 
 
            disability which is the reduction of earning capacity 
 
            assessed under section 85.34(2)(u).  Consideration must also 
 
            be given to an injured employee's age, education, 
 
            qualifications, experience, motivation, loss of earnings, 
 
            the severity and situs of the injury, work restrictions, 
 
            inability to engage in employment for which the employee is 
 
            fitted and the employer's offer of work or failure to so 
 
            offer work.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181, 192 (Iowa 1980); Barton v. Nevada Poulty 
 
            Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            
 
            Claimant has returned to work performing the same duties as 
 
            he performed prior to the injury.  He experiences symptoms 
 
            in performing those duties although he is not likely to 
 
            suffer irreparable damage from performing those duties.  
 
            Claimant's symptoms are such that claimant might well be 
 
            precluded from doing a number of the heavy manual labor jobs 
 
            in either construction or packinghouse work for which he has 
 
            prior work experience.  Claimant has continuing 
 
            qualifications in building and ground maintenance and as a 
 
            small business operator who had supervised his own 
 
            employees, however.  Hence, while claimant remains employed 
 
            with the employer claimant has suffered some loss of job 
 
            market access which loss results in a reduction of earnings 
 
            capacity.  That loss of job market access and the  
 
            subsequent reduction in earnings capacity is, of course, 
 
            substantially less than would be claimant's loss of earnings 
 
            capacity had claimant been unable to return to work with his 
 
            employer under any circumstances and were claimant qualified 
 
            for  heavy manual work only.  Fortunately, claimant has 
 
            currently returned to work with the employer and has some 
 
            entrepreneurial and managerial skills.  These factors 
 
            substantially reduce claimant's loss of earnings capacity.  
 
            Claimant is found to have sustained an industrial disability 
 
            of 5 percent of the body as a whole.  
 
            
 
                                      ORDER
 
            THEREFORE, IT IS ORDERED:
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Defendants pay claimant permanent partial disability 
 
            benefits for twenty-five (25) weeks at the rate of two 
 
            hundred thirty-five and 07/100 dollars ($235.07) with those 
 
            payments to commence on September 17, 1991.  
 
            Defendants pay accrued amounts in a lump sum and pay 
 
            interest pursuant to section 85.30. 
 
            Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            Defendants file claim activity reports as ordered by the 
 
            agency.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Al Strugeon
 
            Attorney at Law
 
            Suite 314, Terra Centre
 
            P.O. Box 5311
 
            Sioux City, IA  51102
 
            
 
            Mr. Thomas Plaza
 
            Attorney at Law
 
            701 Pierce Street
 
            P.O. Box 3086
 
            Sioux City, IA  51102
 
            
 
 
            
 
            
 
            
 
            
 
                                                1803; 1803.1; 1808
 
                                                Filed August 24, 1993
 
                                                Helenjean M. Walleser
 
            
 
                         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GARY LUNDEEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 964602
 
            IOWA NATURAL CASING,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            THE TRAVELERS INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803; 1803.1; 1808
 
            
 
                 Claimant found to have an industrial loss where 
 
            claimant sustained injury to his left shoulder and right 
 
            elbow in a specific work incident and through repetitive 
 
            work.  Situs and symptoms relative to the left shoulder 
 
            condition were such that the left shoulder injury resulted 
 
            in a body as a whole condition.  Therefore, extent of 
 
            disability was properly determined under section 85.34(2)(u) 
 
            and not section 85.34(2)(s).  An evaluating physician 
 
            declined to issue impairment ratings but did impose work 
 
            restrictions.  Two subsequent evaluating physicians 
 
            indicated claimant could return to work without 
 
            restrictions.  One of these physicians opined that claimant 
 
            had a 5 percent body as a whole impairment relative to the 
 
            left shoulder condition and a 2 percent right upper 
 
            extremity impairment relative to the right elbow condition.  
 
            Claimant's treating orthopedic surgeon had permitted 
 
            claimant to return to work to tolerance.  Claimant 
 
            subsequently was off work on account of his condition and 
 
            then underwent layoff.  The employer refused to recall 
 
            claimant on a seniority basis.  Claimant grieved the failure 
 
            to recall arguing he lacked restrictions and could work to 
 
            tolerance.  Claimant then was returned to work.  While 
 
            neither the permanency rating or the restrictions were 
 
            accepted of themselves as determinative, both the 
 
            assignation of a permanent impairment rating and the 
 
            assignation of work restrictions when considered together 
 
            were sufficient to establish a mild body as a whole loss of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            physical function on account of the work condition.  
 
            Claimant awarded 5 percent permanent partial industrial 
 
            disability benefits.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         THERESA HEDRICK,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 964921
 
         EAGLE FOOD CENTERS,   
 
                                                   A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         ST. PAUL INSURANCE COMPANIES,   
 
                     
 
              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 
 
         August 6, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         That claimant and defendants shall share equally the costs of the 
 
         appeal including transcription of the hearing.  
 
         Signed and filed this ____ day of March, 1994.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                   BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Francis J. Lange
 
         Attorney at Law
 
         P.O. Box 1811
 
         Dubuque, Iowa 52004-1811
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801-1596
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1801; 5-2500
 
                                                Filed March 17, 1994
 
                                                Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            THERESA HEDRICK,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 964921
 
            EAGLE FOOD CENTERS,   
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            ST. PAUL INSURANCE COMPANIES,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant proved entitlement to 16.429 weeks of temporary 
 
            total disability benefits due to a flare-up of back pain 
 
            from a preexisting back injury.
 
            
 
            5-2500
 
            Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
            reasonable and necessary medical expenses and transportation 
 
            expenses incurred during the course of treatment for her 
 
            work-related injury.
 
            
 
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THERESA HEDRICK,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 964921
 
            EAGLE FOOD CENTERS, 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            ST. PAUL INSURANCE  
 
            COMPANIES,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Theresa 
 
            Hedrick, claimant, against Eagle Food Centers, employer, and 
 
            St. Paul Insurance Companies, insurance carrier, defendants, 
 
            to recover benefits under the Iowa Workers' Compensation Act 
 
            as a result of an injury sustained on October 17, 1990.  
 
            This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on July 23, 1993, in Dubuque, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying was William Hedrick.  
 
            The documentary evidence identified in the record consists 
 
            of joint exhibits A-Z (minus B, G, J, K, L, N).
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated July 
 
            23, 1993, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on October 17, 
 
            1990 which arose out of and in the course of employment with 
 
            employer; 
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            disability during a period of recovery;
 
            
 
                 3.  Whether the alleged injury is a cause of permanent 
 
            disability and if so, the extent thereof; and
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings:
 
            
 
                 Claimant was born on September 6, 1957 and completed 
 
            the 12th garde of school.  She has been a part-time student 
 
            at Northeast Iowa Community College since May 17, 1993.  
 
            Claimant commenced working for employer as a cashier on 
 
            August 29, 1973.  She was off work from October 18, 1990 
 
            through February 9, 1991 due to a back injury.  She returned 
 
            to her usual and customary job with employer on February 10, 
 
            1991.  She works four days per week (Tuesday, Thursday, 
 
            Friday and Saturday) for five hours a day. 
 
            
 
                 Claimant's medical history includes surgery on August 
 
            6, 1988 to remove a ruptured disc at L5-S1.  This was 
 
            performed at Mercy Health Center in Dubuque, Iowa by David 
 
            S. Field, M.D..  Claimant testified that in July 1988, while 
 
            swimming, she did a back flip in the water and experienced 
 
            acute pain in her low back.  She subsequently developed pain 
 
            and tingling down her left leg.  A myelogram and CAT scan 
 
            revealed an obvious defect at L5-S1 on the left (Exhibit E).
 
            
 
                 According to Dr. Field, who testified in a deposition 
 
            on October 30, 1990, claimant's post-operative course was 
 
            generally satisfactory but not excellent because she still 
 
            had some neuritic components to her leg pain.  Dr. Field 
 
            released claimant to return to work on November 7, 1988.  He 
 
            placed no restrictions on her work activities at this time 
 
            (Ex. M, pp. 1-10).
 
            
 
                 Claimant developed a flare-up of her sciatica on April 
 
            27, 1989.  She was seen by Dr. Field on May 1, 1989 and was 
 
            taken off work and assigned to participate in physical 
 
            therapy.  She was returned to work on November 1, 1989, with 
 
            a suggested 15 to 20 pound lifting restriction (Ex. M, pp. 
 
            11-20).
 
            
 
                 Dr. Field testified that he saw claimant on June 11, 
 
            1990 for an impairment evaluation.  Based upon surgical 
 
            excision of a disc, no spinal fusion, a moderate degree of 
 
            persistent pain and neuritic symptoms in the leg, Dr. Field 
 
            gave claimant a 15 percent permanent impairment rating.  
 
            This impairment rating was unrelated to any alleged 
 
            aggravation or work activity beginning in April of 1989 (Ex. 
 
            F, pp. 107-111 & Ex. M, pp. 26-33).
 
            
 
                 Claimant testified that while at work on October 17, 
 
            1990, she felt a sudden onset of sharp pain in her lower 
 
            back which radiated into her left hip.  She reported the 
 
            incident to the office manager and another worker who 
 
            finished out her shift.  She immediately sought medical 
 
            attention from Dr. Field but he was not available.  She was 
 
            referred to Thomas J. Hughes but he was also unavailable.  
 
            However, she did see Craig C. Schultz, M.D..  He diagnosed 
 
            chronic low back pain syndrome associated with sciatica and 
 
            acute lumbosacral strain.  She was taken off work and 
 
            advised to see Dr. Hughes (Ex. F, p. 49).
 
            
 
                 Claimant saw Dr. Hughes on October 22, 1990.  On 
 
            examination he diagnosed low back pain with probable left 
 
            lateral shift.  He prescribed Flexeril and Motrin and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            advised that she remain off work.  A return visit on October 
 
            26, 1990 revealed negative straight leg raising but pain 
 
            into the left hip.  Physical therapy was initiated (Ex. F, 
 
            p. 50).
 
            
 
                 A follow-up visit with Dr. Hughes on November 2, 1990 
 
            revealed that claimant's lateral shift was essentially gone.  
 
            She had very minimal positive straight leg raising on the 
 
            left and some pain into her hip and the posterior aspect of 
 
            her heel.  She was advised to increase her physical exercise 
 
            with an active walking program and physical therapy.  A 
 
            return visit on November 9, 1990 revealed that claimant was 
 
            doing extremely well except for some persistent pain in her 
 
            S1 region (Ex. F, p. 52).
 
            
 
                 Follow-up evaluations on November 16, 26 and December 
 
            10, 1990 revealed that claimant was receiving little benefit 
 
            from therapy.  Therefore, an MRI was performed to determine 
 
            if there was an underlying disc contributing to her problem.  
 
            The test was essentially negative other than revealing some 
 
            nerve root scaring at L5-S1 and degenerative changes at 
 
            L4-5, L5-S1 (Ex. 5, p. 54).
 
            
 
                 On January 2, 1991, Dr. Hughes felt that claimant had 
 
            plateaued and a return to work was discussed but resisted by 
 
            claimant.  She was fitted with a back support and encouraged 
 
            to increase her level of physical activity.  A follow-up 
 
            examination on February 14, 1991 revealed that claimant had 
 
            made exceptional progress and there was very little else to 
 
            offer her.  Dr. Hughes felt that claimant was seeking a 
 
            recommendation that she not return to work.  He felt that 
 
            although her present job involved prolonged standing there 
 
            was also a certain amount of mobility and flexibility which 
 
            she should be able to handle.  On January 28, 1991, Dr. 
 
            Hughes indicated that claimant had reached maximum medical 
 
            improvement (Ex. F, p. 55).
 
            
 
                 On February 5, 1991, Dr. Hughes indicated that claimant 
 
            could return to work on February 10, 1991.  He imposed no 
 
            physical work limitations (Ex. F, p. 136).
 
            
 
                 Dr. Hughes testified in a deposition taken on February 
 
            19, 1992.  In response to questions from claimant's 
 
            attorney, Dr. Hughes stated that, in his opinion, claimant 
 
            has a herniated lumbar disc between the fourth and fifth 
 
            lumbar vertebrae (Ex. T, p. 7).  He based his opinion on 
 
            claimant's subjective complaints of pain and a negative 
 
            straight leg raising test (Ex. T, p. 8).
 
            
 
                 Dr. Hughes also testified that claimant's L4-L5 disc is 
 
            a new injury which emanated from her job activities.  He 
 
            stated that he consulted the Guide to Evaluation of 
 
            Permanent Impairment, Third Edition, published by the 
 
            American Medical Association to evaluate claimant's 
 
            impairment.  Using these guidelines, Dr. Hughes gave 
 
            claimant a 5 percent permanent impairment rating (Ex. T, pp. 
 
            8-10).
 
            
 
                 In response to cross-examination by defendants' 
 
            attorney, Dr. Hughes testified that the MRI examination 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            performed on December 11, 1990 did not reveal a recurrent 
 
            disc problem (Ex. T, p. 13).  Dr. Hughes admitted that 
 
            patients who have had lumbar disc surgery have occasional 
 
            flare-ups of their condition (Ex. T, p. 14).  
 
            
 
                 Dr. Field testified in a deposition taken on September 
 
            22, 1992.  Dr. Field is a Board Certified Orthopedic 
 
            Surgeon.  In response to questions from defendants' 
 
            attorney, Dr. Field testified that based on x-ray and MRI 
 
            evidence taken on December 11, 1990, there is no clear 
 
            documentation of a new disc syndrome affecting the L4-5 disc 
 
            or the L5 nerve (Ex. U, p. 7).  He further stated that the 
 
            clinical findings discussed by Dr. Hughes represent a degree 
 
            of irritation of the L1 nerve root.  He opined that in order 
 
            to diagnose a disc herniation at L4-5, a specific study 
 
            including either a lumbar myelogram or CAT scan or 
 
            combination of the two or a MRI test is required.  He 
 
            reported that "... the symptoms of pain in the leg do not 
 
            necessarily support a diagnosis of a specific disk unless 
 
            you have the studies to correlate that with."  (Ex. U, p. 9, 
 
            lines 15-18).
 
            
 
                 Dr. Field explained in his deposition that when he 
 
            examined claimant on June 11, 1990, he gave her a 15 percent 
 
            impairment rating based on the fact that she had a large 
 
            ruptured disc, neurological deficits and neurological damage 
 
            to her nerve (Ex. U, p. 12).
 
            
 
                 Dr. Field testified that he disagreed with Dr. Hughes' 
 
            opinion that claimant has a ruptured disc at L4-5.  Dr. 
 
            Field indicated that claimant never regained full recovery 
 
            of the neuritic component of her pain following the original 
 
            surgery and since subsequent studies do not confirm a new 
 
            disc syndrome the majority of her symptoms emanate from the 
 
            original L5-S1 level (Ex. U, pp. 21-22).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained an injury on October 17, 1990 arising out of and 
 
            in the course of employment with employer.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural rforming her 
 
            duties as a cashier for employer, she experienced severe and 
 
            intractable back pain radiating into her hip and left leg.  
 
            She was unable to complete her work shift and immediately 
 
            sought medical attention.  Dr. Hughes saw claimant on 
 
            October 22, 1990.  He testified that her work activities 
 
            were a substantial factor in bringing about her symptoms 
 
            (Ex. T, pp. 8-9).  Dr. Field testified on September 22, 
 
            1992, that the lateral shift reported by Dr. Hughes on 
 
            October 22, 1990 was a sign of a flaring up of back pain or 
 
            back syndrome and reflects spasm in the back (Ex. U, p. 18).  
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that on October 17, 1990, 
 
            claimant's preexisting back injury was materially aggravated 
 
            by her work activities.  Therefore, claimant has met her 
 
            burden of proof.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of October 17, 1990, is causally related to the disability 
 
            on which she now bases her claim.  Bodish v. Fischer, Inc., 
 
            133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 Claimant was initially taken off work by Dr. Schultz on 
 
            October 18, 1990.  Dr. Hughes saw her on October 22, 1990.  
 
            She related to him that she has had considerable episodes of 
 
            sciatica flare-up type pain in the past.  Flexeril and 
 
            Motrin was prescribed and she was advised to remain off work 
 
            (Ex. F, p. 50).  On January 2, 1991, Dr. Hughes indicated 
 
            that claimant had plateaued.  A notation dated January 14, 
 
            1991 states that claimant had made very acceptable progress.  
 
            By January 28, 1991, Dr. Hughes felt that she had received 
 
            maximum benefit from conservative management (Ex. F, p. 55).  
 
            Dr. Hughes released her to return to work with no work 
 
            limitations effective February 10, 1991 (Ex. F, p. 136).
 
            
 
                 Claimant testified that she returned to her usual and 
 
            customary job with employer on February 10, 1991.  She 
 
            stated that she works on Tuesday, Thursday, Friday and 
 
            Saturday, five hours per day.  She has been attending 
 
            classes at Northeast Iowa Community College since May 17, 
 
            1993.  On Monday and Wednesday she is in school from 2 p.m. 
 
            - 4 p.m. and 6 p.m. - 8 p.m..  On Thursday she works her 
 
            normal five hour day and attends class from 2 p.m. - 4 p.m..  
 
            Claimant testified that she is unable to work more than four 
 
            days a week, five hours per day because of her class 
 
            schedule.  Claimant acknowledged that prior to enrolling in 
 
            school, she worked in excess of 20 hours per week and in 
 
            fact from August 2 through August 8, 1992 worked 31.9 hours 
 
            (Ex. P, p. 4).  Claimant testified that she has some control 
 
            over the number of hours she works but has been a part-time 
 
            employee since 1976 (Ex. S, pp. 5-6).  
 
            
 
                 The parties stipulate that claimant was off work from 
 
            October 18, 1990 through February 9, 1991.  Claimant 
 
            returned to her usual job as a cashier with employer.  She 
 
            was released to return to work without limitations or 
 
            restrictions.  Claimant's part-time work status is 
 
            self-imposed.  Claimant has received no active medical 
 
            treatment since being released to return to work by Dr. 
 
            Hughes.  Claimant has subjective complaints of back pain 
 
            with radiation into the left hip and left leg.  Although Dr. 
 
            Hughes gave claimant a 5 percent impairment rating, he 
 
            admitted that he based this on claimant's six month period 
 
            of subjective complaints (Ex. T, p. 9).  Dr. Field felt that 
 
            this rating was more than generous in view of the fact that 
 
            the flare-up was minor and no surgery was offered or 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            performed and no further treatment recommended (Ex. U, pp. 
 
            28-29).  
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant has not 
 
            carried her burden to show that her flare-up of back pain 
 
            represents a permanent impairment.  Her subjective 
 
            complaints of pain are insufficient to carry the causation 
 
            burden.   
 
            
 
                 It is determined that claimant proved entitlement to 
 
            16.429 weeks of temporary total disability benefits from 
 
            October 18, 1990 through February 9, 1991.  
 
            
 
                 Since claimant has shown that she sustained an injury 
 
            arising out of and in the course of employment with 
 
            employer, she is entitled to medical benefits and mileage 
 
            expenses incurred during the course of treatment for her 
 
            October 17, 1990 work injury.  Iowa Code section 85.27.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant temporary total 
 
            disability benefits from October 18, 1990 through February 
 
            9, 1991 at the stipulated rate of one hundred sixty-six and 
 
            07/100 dollars ($166.07) per week.  
 
            
 
                 That defendants pay all medical and mileage expenses 
 
            incurred by claimant for treatment of her October 17, 1990 
 
            work injury.  
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Francis J. Lange
 
            Attorney at Law
 
            P.O. Box 1811
 
            Dubuque, IA  52004-1811
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third Street
 
            Davenport, IA  52801-1596
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801, 5-2500
 
                                               Filed August 6, 1993
 
                                               Jean M. Ingrassia
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THERESA HEDRICK,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 964921
 
            EAGLE FOOD CENTERS, 
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            ST. PAUL INSURANCE  
 
            COMPANIES,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1801
 
            
 
                 Claimant proved entitlement to 16.429 weeks of 
 
            temporary total disability benefits due to a flare-up of 
 
            back pain from a preexisting back injury.
 
            
 
            5-2500
 
            
 
                 Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to reasonable and necessary medical expenses and 
 
            transportation expenses incurred during the course of 
 
            treatment for her work-related injury.  
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            HARRY BRANDT,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 964929
 
            IOWA POWER AND LIGHT,    
 
            (n/k/a MIDWEST POWER)           A R B I T R A T I O N
 
                                          
 
                 Employer,                     D E C I S I O N
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Harry 
 
            Brandt, claimant, against Iowa Power and Light, now known as 
 
            Midwest Power, employer and self-insured defendant for 
 
            benefits as a result of an injury which occurred on October 
 
            4, 1990.  A hearing was held in Council Bluffs, Iowa on 
 
            October 20, 1992, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Sheldon 
 
            M. Gallner.  Defendants were represented by Cecil L. 
 
            Goettsch.  The record consists of the testimony of Harry 
 
            Brandt, claimant, Randy Williams, area supervisor, and joint 
 
            exhibits 1 through 16.  Defendant's attorney submitted an 
 
            excellent statement of defendant's contentions at the time 
 
            of the hearing.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.  
 
            
 
                 Whether the injury of October 4, 1990, was the cause of 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to permanent partial 
 
            disability benefits, and if so, the extent of benefits to 
 
            which he is entitled.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                CAUSAL CONNECTION
 
            
 
                 It is determined that the injury of October 4, 1990, 
 
            was the cause of permanent impairment and disability.
 
            
 
                 Claimant injured his lumbar spine on October 4, 1990, 
 
            when the transmission of the truck that he was driving 
 
            locked up and jerked his lumbar spine one or more times.  
 
            Claimant was off work and received temporary disability 
 
            benefits from October 6, 1990 through November 25, 1990, and 
 
            defendants have also paid all of claimant's medical 
 
            expenses.  Claimant was released to return to work by Dr. 
 
            Rassekh on November 26, 1990, without any restrictions noted 
 
            on the return to work slip (Ex. 1j).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 On November 20, 1990, Behrouz Rassekh, M.D., a 
 
            neurosurgeon, stated that claimant's symptoms apparently 
 
            occurred on October 4, 1990, when the transmission in his 
 
            truck locked and he was thrown forward several times 
 
            (Exhibit 1f).  On March 8, 1991, Dr. Rassekh concluded "I do 
 
            believe this gentleman should be treated on the conservative 
 
            basis; however, in view of recurrent back pain and need of 
 
            muscle relaxants, I would estimate his partial permanent 
 
            disability at 5 percent as a whole body.  He was also 
 
            advised it would be best for him not to perform heavy 
 
            lifting and repeated bending and stooping." (Ex. 1d)
 
            
 
                 Daniel J. McGuire, M.D., an orthopedic surgeon, stated 
 
            on August 26, 1991, that claimant had a long standing 
 
            spondylolisthesis at L5,S1 which has currently flared up and 
 
            has been causing claimant persistent symptoms since his 
 
            on-the-job injury in October of 1990.  He added that this 
 
            pars defect is long standing but has been asymptomatic until 
 
            this injury (Ex. 3d).  Dr. McGuire said, "I believe he has 
 
            aggravated a pre-existing condition." (Ex. 3e(3)).  On 
 
            October 4, 1991, Dr. McGuire said that it may be appropriate 
 
            to place a few restrictions on him such as not lifting over 
 
            100 pounds on a repetitive basis (Ex. 3e(3)).  Dr. McGuire 
 
            further stated that he believed that claimant's permanent 
 
            partial disability associated with this injury since it is a 
 
            pre-existing condition would probably be at the 5 percent 
 
            range (Ex. 3e(3) & (4)).  
 
            
 
                 On January 15, 1992, Dr. Rassekh stated that claimant 
 
            did not have any functional disability with respect to his 
 
            cervical spondylosis (Ex. 1b).  However, in this case 
 
            claimant is asserting a claim for permanent disability to 
 
            his lumbar spine.  Dr. Rassehk on January 27, 1992, wrote 
 
            that he had re-examined claimant on January 25, 1992, and 
 
            reasserted a 5 percent permanent impairment rating.  Dr. 
 
            Rassekh stated "In the light of the persistent pain and the 
 
            requirement of medication, I am revising my previous 
 
            statement of no partial permanent functional disability to a 
 
            5 percent partial permanent functional disability." (Ex. 1a)
 
            
 
                 Dr. Rassekh's last examination of claimant and last 
 
            statement of permanent impairment based upon that 
 
            examination is considered to be his final opinion and the 
 
            one that is the most correct.  
 
            
 
                 Even though claimant has a full range of motion, a 
 
            normal straight leg raising test, has returned to work for 
 
            the same employer, and has not suffered any decrease in his 
 
            actual earnings, never-the-less, a 5 percent impairment 
 
            rating is found to be reasonable.  The Guides to the 
 
            Evaluation of Permanent Impairment, Third Edition (Revised), 
 
            published by the American Medical Association, state at 
 
            Table 53, Impairments Due to Specific Disorders of the 
 
            Spine, Part II Intervertevral disc and other soft-tissue 
 
            lesions; Subparagraph B, on page 80, that a soft-tissue 
 
            lesion which is unoperated, but which has a medically 
 
            documented injury and a minimum of six months of medically  
 
            documented pain and rigidity with or without muscle spasm 
 
            associated with none-to-minimal degenerative changes on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            structural tests carries a permanent impairment value of 5 
 
            percent.  Wherefore, it is determined that the injury of 
 
            October 4, 1990, was the cause of  permanent impairment.  It 
 
            is further determined that the injury was the cause of a 5 
 
            percent permanent impairment to the body as a whole.  It is 
 
            further determined that claimant is restricted from heavy 
 
            lifting based on the recommendations of both Dr. Rassekh and 
 
            Dr. McGuire.  
 
            
 
                                   ENTITLEMENT
 
            
 
                 It is determined that claimant has sustained a 5 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 25 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 Claimant is a 39-year employee of employer.  He started 
 
            in 1953 as a laborer and subsequently worked as a truck 
 
            driver and a ground man, gas distribution man and gas 
 
            foreman, apprentice lineman, lineman and line foreman and as 
 
            an electric service man (Ex. 10).  Claimant was previously 
 
            injured in 1975 when a double bucket broke and dropped him 
 
            40 feet to the ground (Ex. 8, p. 10) injuring his cervical 
 
            and lumbar spine (Ex. 15).  Cemal M. Adli, M.D., determined 
 
            that claimant had sustained a 10 percent permanent 
 
            impairment, which appears to be to his lumbar spine, (Ex. 
 
            15) and employer voluntarily paid claimant 50 weeks of 
 
            permanent partial disability benefits based upon a 10 
 
            percent impairment to the body as a whole (Ex. 9, p. 18).  
 
            Eventually both claimant and employer recovered on a third 
 
            party claim.
 
            
 
                 In 1976 a truck in which claimant was riding overturned 
 
            and injured his right shoulder (Ex. 8, p. 10).  As a result 
 
            of an arbitration proceeding claimant was awarded 15 percent 
 
            industrial disability to the body as a whole based upon a 35 
 
            percent permanent functional impairment rating to the right 
 
            upper extremity (Ex. 11).  
 
            
 
                 In 1986 claimant stepped off of a tractor and broke his 
 
            ankle (Ex. 8, p. 11).  It was determined at that time that 
 
            claimant had sustained a 10 percent impairment of the foot 
 
            which represented an 8 percent permanent impairment of the 
 
            leg.  According to the Guides to the Evaluation of Permanent 
 
            Impairment, Third Edition Revised, Table 46, on page 72, 8 
 
            percent of the lower extremity converts to 3 percent of the 
 
            body as a whole.
 
            
 
                 Claimant testified that after each of these injuries he 
 
            returned to work and did not miss any time from work on 
 
            account of them.  However, records of employer show that the 
 
            1976 roll over accident did aggravate his back injury in 
 
            addition to pulling his shoulder muscle, and he did lose 
 
            time from work.  Employer's injury record also shows three 
 
            other back complaints but claimant's testimony is verified 
 
            by this injury report and shows that he did not lose any 
 
            time from work (1) when he had a wrenched back on September 
 
            27, 1978), (2) when he strained his lower back on November 
 
            20, 1981, and (3) when he reported a backache on June 1, 
 
            1983 (Ex. 9).  Claimant further explained that these were 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            minor incidents and the only reason they were reported is 
 
            because he has instructions from the employer to report all 
 
            work injuries of any kind that occur at anytime to employer.  
 
            Claimant further testified that after his 1975 back injury 
 
            he bought a weight machine pursuant to the doctor's 
 
            instructions, which he worked out on regularly which kept 
 
            his back in good condition.  
 
            
 
                 The parties agreed that claimant did in fact have an 
 
            outstanding attendance record with employer and a minimal 
 
            amount of absences with the main exception being to keep 
 
            medical appointments.
 
            
 
                 Claimant admitted that he is still working for the same 
 
            employer.  He acknowledged that he has not suffered any 
 
            reduction in actual pay or compensation.  He further 
 
            admitted that he did not feel that his job was in jeopardy.  
 
            He also expressed his desire and intention to retire from 
 
            this employment in four more years at age 62, unless 
 
            employer should offer a voluntary early retirement program 
 
            before that time.
 
            
 
                 The fact that claimant at age 57 is at or near 
 
            retirement tends to reduce his industrial disability, as 
 
            does the lack of objective findings caused by this injury 
 
            and the fact that claimant feels that he has a secure 
 
            position with this employer.  
 
            
 
                 Claimant's high school education neither enhances nor 
 
            reduces his industrial disability at age 57.  Also due to 
 
            his age retraining appears not to be feasible or necessary.  
 
            Vocational rehabilitation is not a factor because employer 
 
            has continued to provide secure employment to claimant after 
 
            all of his injures.
 
            
 
                 The fact that claimant has been injured on previous 
 
            occasions and has either been voluntarily paid or awarded 
 
            permanent partial disability benefits based upon certain 
 
            permanent physical or functional impairment ratings in no 
 
            way reduces or restricts claimant's entitlement to 
 
            industrial disability at this time.
 
            
 
                 With the respect to the 1975 bucket drop back injury, 
 
            even though claimant was voluntarily paid 50 weeks of 
 
            permanent partial disability benefits by employer, there 
 
            never was any determination that claimant had sustained an 
 
            industrial disability as a result of that injury.  With 
 
            respect to the truck rollover right shoulder injury, the 
 
            industrial disability award of the deputy industrial 
 
            commissioner in that case was entirely based upon a shoulder 
 
            injury and none of it was attributable to any aggravation of 
 
            claimant's back pain which initially occurred from the 1975 
 
            bucket drop back injury (Ex. 11).  With respect to the 1986 
 
            step off of the tractor broken ankle injury, the impairment 
 
            rating in that case was to a scheduled member and there is 
 
            no evidence that any industrial disability was ever 
 
            ascertained, awarded or paid voluntarily or pursuant to a 
 
            settlement or an award (Ex. 16).  Thus, it would not be 
 
            proper to apportion any part of claimant's current 
 
            industrial disability for this lumbar spine injury to any of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant's prior injuries Bearce v. FMC Corporation, 465 
 
            N.W.2d 531 (Ia. App. 1991).  
 
            
 
                 The Bearce case held that it was improper to apportion 
 
            a claimant's industrial disability to a previous injury 
 
            where there was no substantial evidence to support a finding 
 
            that the earlier injury independently produced some 
 
            ascertainable portion of the industrial disability being 
 
            awarded for the subsequent work related injury.  In this 
 
            case we have prior injuries.  Permanent impairment ratings 
 
            were determined.  But there is no evidence that any of those 
 
            injuries independently produced any industrial disability 
 
            which is included in the award of industrial disability 
 
            being made at this time.  Simply stated, even though 
 
            claimant has sustained prior injuries, and impairment 
 
            ratings were ascertained, no industrial disability for his 
 
            lumbar spine was ever determined pursuant to an award or 
 
            settlement or otherwise.
 
            
 
                 Justice Lavorato in the Bearce case cites Larson as 
 
            follows:
 
            
 
                 "Nothing is better established in compensation law 
 
                 than  the rrce, was able to do so because he had built up his 
 
            physical condition by the daily use of weights as 
 
            recommended by his physician.  Brandt, like Bearce did 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            everything that was expected of him in all of the jobs that 
 
            he performed after these injuries.  Brandt, like Bearce 
 
            sought no further medical attention, met all work quotas, 
 
            lost no work and suffered no drop in pay.  There is no 
 
            record evidence that Brandt sought any medical attention for 
 
            his lower back after the 1975 bucket drop injury.  Likewise, 
 
            in the case of Brandt, like Bearce, there was no record 
 
            evidence that Brandt was suffering from any disability to 
 
            his lumbar spine affecting his earning capacity caused by 
 
            the prior injuries.  At that point the court defined 
 
            industrial disability as the inability on the part of the 
 
            injured employee to carry on the work the employee was doing 
 
            before the injury, or any work which the employee could 
 
            perform.
 
            
 
                 Claimant distinguished his prior 1975 back injury from 
 
            this back injury by testifying that after the 1975 back 
 
            injury he did not have any significant back problems, he did 
 
            not require any medical attention and he did not lose any 
 
            time from work.  He further testified that after the 1975 
 
            injury he did not have pain down his left leg whereas he 
 
            does have pain down his left leg after this injury.  He 
 
            further distinguished this injury from the 1975 injury 
 
            because after the earlier injury he was not required to take 
 
            medications and he is still required to take medications now 
 
            as a result of this injury.  
 
            
 
                 In the case of Brandt, like Bearce, there was no 
 
            substantial evidence to support a finding that the earlier 
 
            injuries were in any way disabling Brandt from performing 
 
            his assigned duties with employer at the time of this 
 
            injury.  Moreover, there is no substantial evidence to 
 
            support a finding that the prior back injury in 1975 
 
            independently produced some ascertainable portion of the 
 
            industrial disability which existed at the time of this 
 
            injury.  This case is further like Bearce because even 
 
            though a physician had determined an impairment rating for 
 
            the earlier back injury the physician's impairment rating 
 
            cannot be equated to the same percentage of industrial 
 
            disability Bearce, 465 N.W.2d 531, 536 and 537 (Ia. App. 
 
            1991).
 
            
 
                 Claimant's final examination by Dr. McGuire and his 
 
            final report occurred on October 4, 1991 (Ex. 3e(2)-(5)).  
 
            Dr. McGuire's notes also show that he had a conference on 
 
            the morning of October 2, 1991, with the attorney for Iowa 
 
            Power.  He said the attorney supplied new information to him 
 
            with respect to the permanent partial disability from the 
 
            incident of 1975.  
 
            
 
                 Dr. McGuire concluded his report of October 4, 1991, as 
 
            follows:
 
            
 
                 "He has had two previous claims.  He has had a 25 
 
                 percent permanent partial disability to the body 
 
                 as a whole as a result of those claims.  He is to 
 
                 be complimented for continuing to work.  I do not 
 
                 think this would really be an additional 5 percent 
 
                 on top of that 25 percent.  Instead from the 
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 records I have, he has already been awarded 10 
 
                 percent for his back for the exact same condition.  
 
                 I will leave that up to other people to figure out 
 
                 how they are going to handle that." (Ex. 3e(4)).
 
            
 
                 The first problem with the quoted material is that 
 
            there is no way of knowing what new information the attorney 
 
            for Iowa Power supplied to Dr. McGuire on October 2, 1991.  
 
            The second problem is that it cannot be determined whether 
 
            Dr. McGuire is talking about (1) permanent partial 
 
            disability, (2) industrial disability or (3) permanent 
 
            functional impairment, sometimes called permanent physical 
 
            impairment.  The supreme court pointed out in Bearce the 
 
            distinction between impairment and disability as follows:
 
            
 
                 "The accurate and proper use of medical 
 
                 information to assess impairment depends on the 
 
                 recognition that, whereas impairment is a medical 
 
                 matter, disability arises out of the interaction 
 
                 between impairment and external demands, 
 
                 especially those of an individual's occupation.  
 
                 As used in the Guides, "impairment" means an 
 
                 alteration of an individual's physical health 
 
                 status that is assessed by medical means," 
 
                 disability," which is assessed by nonmedical 
 
                 means, is an alteration of an individual's 
 
                 capacity to meet personal, social, or occupational 
 
                 demands or statutory or regulatory requirements.  
 
                 Stated another way, "impairment" is what is wrong 
 
                 with a body part or organ system and its 
 
                 functioning; "disability" is the gap between what 
 
                 the individual can do and what the individual 
 
                 needs or wants to do."  Guides to the Evaluation 
 
                 of Permanent Impairment Third Edition (Revised), 
 
                 Chapter 1 Concepts of Impairment Evaluation, 
 
                 Section 1.1 Basic Considerations Impairment, 
 
                 Disability, Handicap, page 1.
 
            
 
                 The third problem is that there has been no previously 
 
            established compensable industrial disability for claimant's 
 
            lumbar spine.
 
            
 
                 Industrial disability, or loss of earning capacity, for 
 
            this injury must be determined as of the date of this 
 
            injury.  From an examination of the evidence in this case of 
 
            claimant's age, education, physical condition, employment 
 
            record and prior injuries it is determined that claimant did 
 
            not have any loss of earning capacity or industrial 
 
            disability due to his lumbar spine on the date of this 
 
            injury on October 4, 1990.  Defendant's suggestion to the 
 
            effect that an employee begins employment life with 100 
 
            percent of earning capacity, and that each time he receives 
 
            payment for an injury a mathematical deduction must be made 
 
            from the initial 100 percent of earning capacity, is not 
 
            reasonable nor is it supported in law or in fact.
 
            
 
                 Defendant's counsel requested that consideration be 
 
            given to a reverse application of the principal affirmed by 
 
            the Iowa Supreme Court in the case of Oscar Mayer Foods 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992).  In Tasler four 
 
            separate injuries were alleged.  It was determined that none 
 
            of the four separate injuries alleged constituted an injury 
 
            but that all four of them combined to constitute one 
 
            cumulative, repetitive injury.  Defendant's counsel proposes 
 
            that claimant has already been compensated, if not over 
 
            compensated, industrially for this injury and the three 
 
            previous injuries by the amount of money claimant has 
 
            received for the three previous injuries.  The distinction 
 
            between this case and the Tasler case is that Tasler was a 
 
            cumulative injury case and this is a case of four distinct, 
 
            separate, specific, accidental, traumatic injuries with 
 
            different factual situations and each one constitutes it's 
 
            own compensable injury under the provisions of the Workers' 
 
            Compensation Act.  Iowa Code sections 85.3, 85.32 and 85.34.
 
            
 
                 Employer has been very accommodating for this 
 
            57-year-old 39-year employee as a result of this injury.  
 
            Even though claimant's disability has been tolerated by 
 
            employer this does not mean such gracious toleration would 
 
            transfer to another job.  Claimant's 5 percent functional 
 
            impairment rating and restriction of no heavy lifting 
 
            imposed upon a 57-year-old employee definitely reduces 
 
            claimant's access to other employment in the competitive job 
 
            market where younger healthy employees are preferred over 
 
            older disabled employees.  Hartwick v. Bishop Implement Co., 
 
            IV Iowa Industrial Commissioner Report 159 (Appeal Decision 
 
            June 28, 1984).  Claimant's versatility to perform jobs both 
 
            with this employer or other employers has been similarly 
 
            reduced due to chronic pain which requires regular 
 
            medication.    Claimant might not find other employers as 
 
            accepting and tolerant of his disability as this employer 
 
            has been Todd v. Department of General Services, Buildings 
 
            and Grounds, IV Industrial Commissioner Report 373 (1983).  
 
            
 
                 Claimant testified that since the injury he has never 
 
            been without pain or loss of feeling in his left leg.  
 
            Claimant testified that he is currently still taking two 
 
            medications for this back injury.  He testified that his job 
 
            is accommodated by two fellow employees who relieve him of 
 
            the jobs that he would find difficult to do on account of 
 
            his back and leg pain such as climbing poles. 
 
            
 
                 Randy Williams, area supervisor, testified that he has 
 
            supervised claimant for several years.  He was not aware 
 
            that co-employees were accommodating claimant's work.  
 
            Never-the-less, Williams testified that claimant's job was 
 
            not in jeopardy and that as far as he knew claimant could 
 
            work until he retires.
 
            
 
                 Claimant enumerated several limitations upon his 
 
            physical activity caused by this injury.  He stated 
 
            previously that he could drive 300 miles a day whereas now 
 
            he is limited to 150 miles per day.  Claimant testified that 
 
            he only gets four to five hours sleep per night and usually 
 
            sleeps sitting up.  Previous to this injury he said he could 
 
            walk on the treadmill but now he is unable to so.  He said 
 
            his sitting is limited to approximately one hour.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Never-the-less, claimant said that his current job as a 
 
            service man is the best job for him and the easiest one for 
 
            him to do. 
 
            
 
                 Claimant said that he is no longer able to garden, do 
 
            his yard work, walk long distances, walk on the treadmill, 
 
            shovel snow, raise horses, and raise strawberries.  
 
            Previously he would go home at the end of the day and garden 
 
            or work in his strawberry patch.  Presently when he goes 
 
            home he is not able to do anything after work.  
 
            
 
                 Claimant testified that he had a pain in his back at 
 
            the time of the hearing which goes into his left hip and 
 
            down to his left knee.
 
            
 
                 Claimant has sustained a 5 percent permanent impairment 
 
            of the lumbar spine.  He continues to have persistent pain 
 
            which continues two years after the accident for which he is 
 
            still receiving prescription medications.  Even though both 
 
            physicians have recommended against surgery claimant 
 
            testified that they told him it was a possibility and just 
 
            shortly before the hearing his pain reached a degree where 
 
            he thought he was ready to consent to surgery.  Claimant has 
 
            lost some access and employability in the competitive 
 
            employment market.  Claimant has lost some versatility in 
 
            the jobs he can perform for employer as well as other 
 
            employers.  
 
            
 
                 This employer's gracious accommodation made for this 
 
            57-year-old employee with 39-years of service and only four 
 
            years from retirement would not be afforded by other 
 
            employers in the competitive employment market.  Employer's 
 
            toleration of claimant's condition and the assistance he 
 
            gets from co-employees is probably not transferable to other 
 
            jobs in the competitive employment market.  Claimant is near 
 
            the end of his normal employment lifetime.  A high school 
 
            education does not particularly suit him for jobs after 
 
            normal retirement age.  Retraining is probably not feasible.  
 
            Vocational rehabilitation probably would be of no assistance 
 
            to claimant.
 
            
 
                 Wherefore, based upon (1) all of the evidence in the 
 
            record (2) the evidence summarized above (3) considering all 
 
            the factors used to determine industrial disability 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (App. Dec. March 26, 
 
            1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 
 
            State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (App. Dec. February 28, 1985) and (4) applying agency 
 
            expertise (Iowa Administrative Act 17A.14(5)) it is 
 
            determined that claimant has sustained a 5 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 25 weeks of permanent partial disability benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore based upon the foregoing and following 
 
            principles of law these conclusions are made.
 
            
 
                 That the injury of October 4, 1990, was the cause of 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 
 
            Iowa 296, 18 N.W.2d 607 (1945).  
 
            
 
                 That claimant has sustained a 5 percent industrial 
 
            disability to the body as a whole caused by the injury of 
 
            October 4, 1990, and is entitled to 25 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).  
 
            
 
                 That defendant has not sustained the burden of proof by 
 
            preponderance of the evidence that they are entitled to an 
 
            apportionment because of previous injuries received by this 
 
            employee while working for this employer Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Ia. App. 1991).  Varied 
 
            Industries v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendant pay to claimant twenty-five (25) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of four hundred twenty-four and 26/100 dollars 
 
            ($424.26) per week in the total amount of ten thousand six 
 
            hundred and six and 50/100 dollars ($10,606.50) commencing 
 
            on November 26, 1990, as stipulated to by the parties. 
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter hearing, are charged to 
 
            defendant pursuant to rule 343 IAC 4.33 and Iowa Code 
 
            section 86.40.
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Ave.
 
            P.O. Box 1588
 
            Council Bluffs, IA  51502
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            801 Grand Ave., Suite 3700
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Des Moines, IA  50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                           51108.50, 51401, 51402.40, 
 
                                           51803,
 
                                           52206, 52209, 1702, 1703, 
 
                                           1704,
 
                                           1806
 
                                           Filed October 30, 1992
 
                                           Walter M. McManus, Jr.
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            HARRY BRANDT,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 964929
 
            IOWA POWER AND LIGHT,    
 
            (n/k/a MIDWEST POWER)            A R B I T R A T I O N
 
                                          
 
                 Employer,                      D E C I S I O N
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            51108.50, 51401, 51402.40, 51803, 52206, 52209
 
            It was determined that the injury was the cause of permanent 
 
            impairment and disability.  Claimant was awarded 5 percent 
 
            industrial disability based upon a 5 percent impairment 
 
            rating and restrictions against heavy lifting.  Employer had 
 
            greatly accommodated this 57-year-old employee with 39-years 
 
            of service and who was only four years from retirement.
 
            
 
            1702, 1703, 1704, 1806
 
            Defendant was not entitled to an apportionment or a credit 
 
            for amounts previously paid to claimant for previous 
 
            separate traumatic injuries.  Bearce, discussed, quoted and 
 
            applied extensively.
 
            The earning capacity of claimant at the time of this injury 
 
            was the base point for determining industrial disability 
 
            from this injury.  The concept that every employee begins 
 
            employment life with a 100 percent earning capacity from 
 
            which is subtracted mathematically every injury for which 
 
            the employee is paid over his or her working lifetime was 
 
            rejected.
 
            A reverse application of the Tasler decision was also 
 
            rejected.