BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            GERALD BOROWIAK,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                             File Nos. 969403/1044783
 
            SIPCO, INC. d/b/a MONFORT       
 
            BEEF,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            HOME 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.
 
            
 
                                  ISSUES
 
            
 
            Claimant states the following issues on appeal:
 
            (1) Whether or not the deputy commissioner erred concerning 
 
            when claimant's healing period ended?
 
            (2) Whether or not the deputy commissioner erred in its 
 
            determination of the extent of claimant's industrial 
 
            disability that he suffered as a result of this cumulative 
 
            injury?
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed April 28, 1994 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed April 28, 1994 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            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 party who would suffer a loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R.App.P. 14 (f).
 
            
 
                 The first issues to address deal with whether claimant 
 
            has sustained work-related injuries which arose out of and 
 
            in the course of his employment.
 
            
 
                 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).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 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 processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets, 379 N.W.2d 
 
            368 (Iowa 1985).
 
 
 
                 *****It is ***** [determined] that claimant has 
 
            sustained a work-related injury on November 6, 1990.  This 
 
            is the date on which claimant discovered that because of 
 
            pain or physical disability, he was no longer capable of 
 
            working at his regularly assigned duties.  Dr. Berg has 
 
            causally related the November 6, 1990 work injury to 
 
            claimant's condition.  Medical opinion supports a conclusion 
 
            that claimant has sustained a work-related injury which 
 
            arose out of and in the course of claimant's employment.
 
            
 
                 The alleged injury of November 26, 1990 is not a 
 
            separate work injury.  Rather, on that date the same 
 
            condition as above manifested itself in such a fashion that 
 
            claimant was forced to seek additional medical treatment.  
 
            No new injury resulted.  Consequently, there was no new 
 
            injury date.  Claimant takes nothing from file number 
 
            1044783.
 
            
 
                 Claimant has demonstrated that his work injury of 
 
            November 6, 1990 is compensable and claimant is entitled to 
 
            certain benefits under the workers' compensation laws.  Dr. 
 
            Dubansky did perform a permanency evaluation on claimant on 
 
            July 18, 1991.  The orthopedic surgeon diagnosed claimant as 
 
            having "subscapular bursitis of the left shoulder."  Dr. 
 
            Dubansky opined that the functional impairment involved the 
 
            shoulder joint and the scapula.  He determined that claimant 
 
            had a seven percent permanent functional impairment rating 
 
            to the body as a whole.  Dr. Dubansky also placed permanent 
 
            restrictions on claimant.
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant was precluded from pushing, pulling, lifting and 
 
            from engaging in repetitive activities involving the left 
 
            upper extremity.
 
            
 
                 Dr. Berg and Dr. Wirtz did not perform permanency 
 
            evaluations on claimant.  However, Dr. Wirtz did opine that 
 
            claimant should be restricted from repetitive activities 
 
            with his left shoulder.  A TENS unit was also prescribed by 
 
            Dr. Berg.  Claimant used the unit up until the time he was 
 
            incarcerated. 
 
            
 
                 It is determined that claimant has sustained a 
 
            permanent condition to his left shoulder area as a result of 
 
            his employment with defendants.  The condition is permanent 
 
            in nature.  The injury is an injury to the body as a whole.
 
            
 
                 The functional impairment is in the seven percent range 
 
            as indicated by Dr. Dubansky.
 
            
 
                 Claimant argues that he has sustained an industrial 
 
            disability as a result of his permanent condition.  
 
            Defendants deny that an industrial disability exists in this 
 
            particular situation.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 
 
            660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 ***** Claimant, through his own actions, entered a plea 
 
            of guilty to aiding and abetting possession of 
 
            methamphetamines.  He was sentenced to 10 years in federal 
 
            prison.  He is currently serving that sentence.  This was 
 
            claimant's fourth felony conviction.  There is no question 
 
            that claimant's criminal conduct removed him from the formal 
 
            labor market.  From the date he was incarcerated, July 18, 
 
            1991, claimant was not employable.  However, his 
 
            employability was unrelated to the work injury in question.  
 
            The earliest possible date on which he could be released 
 
            from prison is April 15, 2000.  He cannot become a viable 
 
            member of the labor force until he is freed from prison.  
 
            Then he will serve another 10 years of supervised probation.  
 
            It is unknown what effect his felony record and his 10 year 
 
            probationary term will have upon his employability.
 
            
 
                 ***** After the work injury, claimant was "running 
 
            bets" in Las Vegas.  He proudly boasted during his 
 
            deposition that he had been earning $5,000.00 per week as an 
 
            independent contractor.  Claimant contracted as a runner 
 
            from December of 1990 through February of 1991.  He was 
 
            self-employed.  This is a period of approximately 12.857 
 
            weeks.  According to his exaggerated account, claimant had 
 
            devised a nearly "[f]ail safe method for betting on NBA 
 
            basketball games."  He freely admitted during his deposition 
 
            that had he not been incarcerated, he would have earned a 
 
            quarter of a million dollars in 1991.
 
            [A prison inmate that is injured while incarcerated is 
 
            barred from receiving workers' compensation benefits while 
 
            incarcerated pursuant to Iowa Code section 85.59.  Under 
 
            Iowa Code section 85.36(10)(d), the rate of compensation for 
 
            an inmate who is injured while an inmate is determined under 
 
            Iowa Code section 85.59.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Under Iowa Code section 85.45, an inmate is not entitled to 
 
            a commutation of benefits.  
 
            There is no prohibition in Iowa Code section 85.59 or 
 
            elsewhere in Iowa workers' compensation law against an 
 
            inmate continuing to receive workers' compensation benefits 
 
            after being awarded benefits for an injury received prior to 
 
            incarceration.  A claimant is entitled to receive 
 
            compensation for a work injury; absent specific statutory 
 
            authority to the contrary, the fact that the claimant later 
 
            becomes incarcerated does not remove this entitlement.  See 
 
            Larson's Workmen's Compensation Law, section 47.31(g); 
 
            Hoftender v. Arby Construction, Appeal Decision, March  10, 
 
            1994.
 
            However, in the instant case, claimant was not injured while 
 
            an inmate.  Claimant was injured prior to becoming an 
 
            inmate, but his entitlement to benefits had not yet been 
 
            adjudicated when he became incarcerated.  There is no 
 
            statute or prior case law to offer guidance.
 
            Normally, one of the factors of industrial disability is 
 
            claimant's earnings prior to and subsequent to the injury.  
 
            Claimant is clearly earning less in wages while incarcerated 
 
            than he was prior to his incarceration on July 30, 1991.  
 
            However, the factor of industrial disability relating to 
 
            lost earnings refers to a loss of earnings as a result of 
 
            the injury.  Claimant's loss of earnings subsequent to his 
 
            injury is due to his criminal activity, not his work injury.  
 
            Claimant's incarceration interjects facts and circumstances 
 
            unrelated to the work injury into claimant's ability to be 
 
            employed.  
 
            One of the factors of industrial disability is claimant's 
 
            earnings prior to and subsequent to the injury.  In this 
 
            case, claimant is not earning wages due to his 
 
            incarceration.  It would be speculative to posit what 
 
            claimant's wages would be were he not incarcerated.  
 
            Claimant's testimony as to his income from gambling 
 
            activities prior to his incarceration is given little
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            weight, in that by definition gambling is based on chance, 
 
            and in spite of claimant's assertion of a "system," gambling 
 
            income is not predictable.  Thus, due to claimant's 
 
            incarceration, there is no reliable evidence in the record 
 
            as to whether claimant's earnings are now more than or less 
 
            than what he was earning prior to the injury.  The record is 
 
            neutral in this regard.  However, earnings subsequent to the 
 
            injury are but one factor of industrial disability.]
 
            ***** Claimant was permanently restricted from engaging in 
 
            production line work in packing plants.  Claimant was 
 
            precluded from engaging in repetitive type activities.  
 
            Claimant had suffered a loss of earning capacity since he 
 
            was precluded from performing many factory type positions.  
 
            [Claimant was 41 years old at the time of the hearing.  
 
            Claimant has an impairment rating of seven percent of the 
 
            body as a whole as a result of his shoulder injury.  Based 
 
            on these and all other factors of industrial disability, 
 
            claimant is determined to have suffered an industrial 
 
            disability of 15 percent as a result of his work injury.]
 
            The issue of healing period benefits is in dispute in this 
 
            particular case.  Claimant is requesting benefits from 
 
            November 26, 1990 through July 18, 1991.  This is a period 
 
            of 33.571 weeks.  Claimant was removed from his job with 
 
            defendant-employer as of November 26, 1990.  *****  [Dr. 
 
            Berg opined that claimant was "nearing" maximum medical 
 
            improvement on March 8, 1991.  However, Dr. Berg did not 
 
            return claimant to work until May 29, 1991.  Dr. Dubansky 
 
            did not express an opinion that claimant's healing period 
 
            ended.  Dr. Wirtz was unable to state when claimant's 
 
            healing period ended, other than that it was after the last 
 
            time he saw claimant, which was on March 25, 1991.  
 
            There is a dispute between the parties as to the dates 
 
            during which claimant worked in Las Vegas.  A fair reading 
 
            of claimant's testimony is that he worked from December 
 
            1990, until the beginning of February 1991, and not 
 
            throughout February 1991.  The evidence of claimant 
 
            attending medical appointments in Iowa during February of 
 
            1991 corroborates this reading.  Claimant's healing period 
 
            will be intermittent and claimant shall not receive healing 
 
            period benefits for seven weeks during December 1990 and 
 
            January 1991.]
 
            
 
                 However, as of March, claimant had returned to Des 
 
            Moines.  He was not working.  Defendant employer maintained 
 
            claimant voluntarily quit his position with the company as 
 
            claimant had abandoned his job.  ***** As of February 22, 
 
            1991 claimant was terminated from his position even though 
 
            he was still under physical restrictions as imposed by the 
 
            two company physicians.  At the time of claimant's 
 
            termination, he had not been released to return to work with 
 
            defendant employer.  He was incapable of returning to 
 
            production work. Claimant had not abandoned his job.  He was 
 
            precluded from returning to it at that time.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            App. 1981).  Healing period benefits can be interrupted or 
 
            intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 ***** It is therefore determined that claimant is 
 
            entitled to healing period benefits from November 26, 1990 
 
            through November 30, 1990.  Claimant is again entitled to 
 
            healing period benefits from February 1, 1991 through May 
 
            29, 1991.  
 
            *****
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                    ORDER
 
            THEREFORE, it is ordered:
 
            
 
                 That with respect to file number 1044783 claimant takes 
 
            nothing from these proceedings.
 
            
 
                 That with respect to file number 969403, claimant is 
 
            entitled to healing period benefits at the stipulated rate 
 
            of two hundred fourteen and 00/l00 dollars ($214.00) per 
 
            week from November 26, 1990 through November 30, 1990; and 
 
            from February 1991 through May 29, 1991.
 
            
 
                 That with respect to file number 969403, claimant is 
 
            also entitled to seventy-five (75) weeks of permanent 
 
            partial disability benefits from May 29, 1991 at the 
 
            stipulated rate of two hundred fourteen and no/l00 dollars 
 
            ($214.00) per week.
 
            
 
                 That defendants shall take credit for all benefits 
 
            previously paid to claimant.
 
            
 
                 That accrued benefits are to be paid in a lump sum 
 
            together with statutory interest at the rate of ten percent 
 
            (10%) per year.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                       BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Gregory T. Racette
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Mr. Timothy W. Wegman
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
            
 
            
 
            
 
                                              1802; 1803
 
                                              Filed July 29, 1994
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            GERALD BOROWIAK,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File Nos. 969403/1044783
 
            SIPCO, INC. d/b/a MONFORT       
 
            BEEF,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            HOME INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1802
 
            Claimant was awarded some healing period benefits as a 
 
            result of a work injury which he had sustained while he was 
 
            working as a meat packer.
 
            
 
            1803
 
            Claimant had been evaluated as having a 7% functional 
 
            impairment rating to the body as a whole as a result of 
 
            claimant's work injury to his left shoulder.  
 
            Claimant alleged he had sustained an industrial disability.  
 
            Defendants denied that an industrial disability existed 
 
            because on July 18, 1991 claimant was arrested for aiding 
 
            and abetting the possession of methamphetamines.  Defendants 
 
            argued that as of the date of claimant's incarceration, he 
 
            had voluntarily removed himself from the labor market and 
 
            that any loss of earning capacity was purely speculative.
 
            Claimant was immediately incarcerated following his arrest 
 
            on July 18, 1991.  The earliest date on which claimant could 
 
            be released is April 15, 2000.
 
            During his deposition, claimant boasted that after his work 
 
            injury on November 26, 1990 he had contracted with a Kansas 
 
            City individual to "run bets on NBA basketball games."  
 
            Claimant testified that he had agreed to travel to Las 
 
            Vegas.  He also stated that he was given money with which he 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was to place bets.  Claimant indicated he performed his 
 
            duties and that he earned approximately $5,000.00 per week 
 
            in his capacity as a runner.  Claimant was self-employed in 
 
            this capacity from December 1, 1990 through February 28, 
 
            1991.  Claimant also exaggerated during his deposition that 
 
            had he not been incarcerated, he would have earned a quarter 
 
            of a million dollars in 1991 as he had devised a sure way 
 
            for betting on basketball games.
 
            It was held on appeal that claimant's incarceration did not 
 
            prevent him from receiving workers' compensation benefits.  
 
            Claimant's injury occurred prior to his incarceration, and 
 
            thus the ban under Iowa Code section 85.59 was inapplicable.
 
            Claimant's lack of earnings is due to his incarceration, not 
 
            to his work injury.  It was held speculative to project what 
 
            claimant's earnings would be were he not incarcerated.  It 
 
            was also held that in spite of claimant's assertions of a 
 
            "system," gambling is by definition a source of Income that 
 
            is not consistently predictable, and therefore little weight 
 
            was given to claimant's description of what his income would 
 
            be from gambling were he not incarcerated.
 
            Since claimant had voluntarily removed himself from the job 
 
            market through his criminal activity, it was impossible to 
 
            determine whether claimant's earnings subsequent to his 
 
            injury were less than his earnings prior to the injury.  
 
            However, this is but one factor of industrial disability and 
 
            the other factors were relied upon to determine that 
 
            claimant's industrial disability was 15 percent.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         GERALD BOROWIAK,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File Nos. 969403
 
         SIPCO, INC. d/b/a MONFORT     :                 1044783
 
         BEEF,                         :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         HOME INSURANCE COMPANY,       :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration upon the petitions of 
 
         claimant, Gerald Borowiak, against his former employer, SIPCO, 
 
         Inc. d/b/a Monfort Beef, and its insurance carrier, Home 
 
         Insurance Company, defendants.  In file number 969403, claimant 
 
         alleged he had sustained a work-related injury on November 6, 
 
         1990.  In file number 1044783, claimant alleged he had sustained 
 
         a work-related injury on November 26, 1990.  The cases were heard 
 
         on September 29, 1993 at the office of the industrial 
 
         commissioner in Des Moines, Iowa.  The record consists of 
 
         claimant's exhibits 1-30.  The record also consists of 
 
         defendants' exhibits A-G.  Claimant did not testify in person as 
 
         he was incarcerated at the federal penitentiary in El Reno, 
 
         Oklahoma on the date of the hearing.  His deposition was admitted 
 
         in lieu of claimant's live testimony.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  1) whether claimant 
 
         sustained work-related injuries which arose out of and in the 
 
         course of his employment; 2) whether there are causal 
 
         relationships between the alleged work injuries and any temporary 
 
         or permanent disabilities; and 3) whether claimant is entitled to 
 
         any healing period or permanent partial disability benefits.
 
         
 
                        
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
                                FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 41-years-old.  He is the married father of a 
 
         minor child.  Currently, claimant is incarcerated in the federal 
 
         correctional institution in El Reno, Oklahoma.  Claimant entered 
 
         a guilty plea to the crime of aiding and abetting possession of 
 
         methamphetamines.  He has been incarcerated since June of 1991.  
 
         Claimant's earliest release date from prison is April 15, 2000.
 
         
 
              For nearly 14 years claimant was employed by the Coptic 
 
         Church.  He described his employment as follows:
 
         
 
                 A  I worked for the Coptic Church.
 
         
 
                 Q  Can you spell that?
 
         
 
                 A  C-o-p-t-i-c.
 
         
 
                 Q  And where was that out of?
 
         
 
                 A  That was out of Des Moines.
 
         
 
                 Q  And what is the --
 
         
 
                 A  Well, there was an office in Des Moines there.  I 
 
              don't believe there is an office anymore.  There is a 
 
              newspaper published, THE COPTIC WORLD, out of Des 
 
              Moines right now.
 
         
 
                   But the main church was in Jamaica.  No, I never 
 
              went to Jamaica.  There was another church down on Star 
 
              Island in Florida.
 
         
 
                 Q  Where were you living when you did work for the 
 
              Coptic Church?
 
         
 
                 A  Right outside of Des Moines, out by Saylorville, 
 
              out by Saylorville Marina before it was a lake.
 
         
 
                 Q  Did they have a complex there of some sort or did 
 
              everybody live together?
 
         
 
                 A  No, no.
 
         
 
                 Q  What types of things did you do for them when you 
 
              were working for them?
 
         
 
                 A  Well, I helped with some of the bookkeeping.  I 
 
              helped organize different fund raising programs?
 
         
 
                 Q  ...What would you do?
 
         
 
                 A  Growing the food, distribution of foods, 
 
              foodstuffs.
 

 
         
 
         Page   3
 
         
 
         
 
         
 
                 Q  Was this kind of a co-op situation --
 
         
 
                 A  Yes.
 
         
 
                 Q  --the Coptic Church?
 
         
 
                 A  Everybody shared.  What you had belonged to -- 
 
              was equally somebody else's.
 
         
 
                 Q  And did you meet your wife there?
 
         
 
                 A  No.
 
         
 
                 Q  How long did you stay with the Coptic Church or 
 
              work for them?
 
         
 
                 A  About thirteen years, fourteen.
 
         
 
         (Exhibit 28, page 12, line 15 - page 14, line 5)
 
         
 
              Claimant's current incarceration is not claimant's first 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         experience with the prison system.  On three prior occasions 
 
         claimant was imprisoned in correctional institutions in the State 
 
         of Iowa.  In those instances claimant was incarcerated for other 
 
         crimes involving illegal drugs, primarily involving the growing 
 
         of marijuana.  
 
         
 
              Claimant initially commenced employment with Swift Packing 
 
         Company in 1984.  He was hired to work in the warehouse, to load 
 
         trucks, and to stack boxes.  Claimant was forced to terminate his 
 
         employment the first time because he was sentenced to Anamosa for 
 
         five years for growing marijuana.  He was released from a 
 
         correctional institution at some point.  However, in 1986, 
 
         claimant was again convicted of growing marijuana and he was 
 
         subsequently incarcerated at the facility in Rockwell City.  In 
 
         February of 1988, he was released to a halfway house and claimant 
 
         was re-employed in the packing plant, although Swift Packing had 
 
         been purchased by the present defendant, SIPCO, Inc.
 
         
 
              When claimant returned to the packing plant in 1988, he was 
 
         assigned the task of "boxing chucks."  His job involved grabbing 
 
         cuts of meat which weighed in the area of 50 to 60 pounds each.  
 
         Claimant grasped the meat with his hands and he pulled the 
 
         product from the conveyor belt and into boxes.  Claimant 
 
         testified he handled as much as 2400 bags of meat per day.  The 
 
         procedures involved the use of both of his hands.
 
         
 
              Later claimant was transferred to the position known as 
 
         "boxing rounds."  He testified his duties were more strenuous 
 
         because claimant's partner could not keep up with claimant.  
 
         Claimant indicated he used both hands in this operation too.  He 
 
         remained on this job until after his work injuries occurred.
 
         
 
              In his deposition, claimant testified he experienced pain in 
 
         the front portion of his left shoulder, in his shoulder blade and 
 
         in his neck.  He attributed the pain to the pulling activities 
 
         involving his left shoulder. As of October 27, 1990, restrictions 
 
         were imposed.  They included:  "No use of left arm or shoulder 
 
         until further notice."
 
         
 
              The evidence indicated claimant's first appointment with a 
 
         medical provider occurred on November 6, 1990.  Defendants sent 
 
         claimant to the company physician, David Timothy Berg, M.D.
 
         
 
              Dr. Berg testified by way of deposition.  He opined that 
 
         claimant had sustained a diagnosis of cervical and thoracic 
 
         strain.  According to Dr. Berg, the following occurred with 
 
         respect to claimant's shoulder condition:
 
         
 
                 Q.  Would it be your opinion again -- Well, let me 
 
              ask you this:  Do you have an opinion based on 
 
              reasonable medical certainty and probability that he 
 
              had suffered a cervical and thoracic strain as a result 
 
              of his work as described to you here today?
 
         
 
                 A.  Yes, sir.
 
         
 
                 Q.  What is that opinion?
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
                 A.  I believe that he could have sustained that type 
 
              of injury with the work he does at Monfort?
 
         
 
                 Q.  Is that your opinion when you wrote these notes 
 
              too?
 
         
 
                 A.  Yes, sir.
 
         
 
                 Q.  Okay.  Now, it says "continue present light 
 
              duty" on your prescription there; is that correct?  
 
              11-6-90.  I'm sorry.  Here, Doctor.
 
         
 
                 A.  That is all right.  I've got it.
 
         
 
                 Q.  You've got it?
 
         
 
                 A.  Yeah.
 
         
 
                 Q.  The reason I want to ask you about that, were 
 
              you made aware that he was already on light duty, or do 
 
              you recall?
 
         
 
                 A.  When he came in that day, he told the nurse that 
 
              he was doing light duty.  I assumed that the medical 
 
              department at Monfort had changed his job and put him 
 
              on light duty because of the pain that he was having.
 
         
 
                 Q.  Did you think that should be done at that point?
 
         
 
                 A.  Yes, sir.
 
         
 
                 Q.  And why is that?
 
         
 
                 A.  Just to reduce the muscle strain and the 
 
              inflammation.
 
         
 
                 Q.  Did you think the type of work that he described 
 
              to you if he went back to it would aggravate his 
 
              situation and make it worse?
 
         
 
                 A.  Yes, sir.
 
         
 
         (Ex. 29, p. 13, l. 4 - p. 14, l. 16)
 
         
 
              Later in the same month, Dr. Berg referred claimant to Peter 
 
         Wirtz, M.D., an orthopedic specialist.  Medications were 
 
         prescribed, including the anti-inflammatory medication, Indocin.  
 
         Dr. Berg also restricted claimant as follows:  "No lifting over 
 
         20 pounds, no pushing or pulling -- I believe it's with left 
 
         arm."
 
         
 
              On November 26, 1990, Dr. Berg removed claimant from the 
 
         workplace.  The company physician testified he restricted 
 
         claimant from work because the doctor wanted to determine whether 
 
         claimant would improve with rest.  Claimant also continued seeing 
 
         Dr. Wirtz.
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
              While claimant was restricted from work he performed some 
 
         independent contracting work as a runner.  In his deposition 
 
         claimant described his self-employment:
 
         
 
                 Q  So you hadn't looked for work by that time; is 
 
              that correct?  By the time you got arrested.
 
         
 
            A  Well, I was out in Las Vegas placing bets for a 
 
         friend of mine.  He set me up out there with funds, and 
 
         I would call him and talk to him or he would call me 
 
         every day.  So, you know, I was making money doing 
 
         that.
 
         
 
                   As far as going out and actively seeking some 
 
              other job, no, I wasn't.
 
         
 
         (Ex. 28, p. 73, ll. 9-17)
 
         
 
              Under cross-examination, claimant described his career as a 
 
         runner.  He testified under oath:
 
         
 
                 Q  Because my concern is employment in the Des 
 
              Moines area based upon what happened in your plea 
 
              bargain may have some impact.
 
         
 
                 A  Let's just say I can't live in Des Moines again.
 
         
 
                 Q  That's what I'm getting at.  When you get 
 
              released --
 
         
 
                 A  I'm not going back to Des Moines.  And if it is, 
 
              it's to fill out papers to leave there.  Not for danger 
 
              so much to myself, but what's the possibility that they 
 
              testified against me.
 
         
 
         (Ex. 28, pp. 92, l. 5 - l. 15)
 
         
 
                  ...
 
         
 
                 Q  Did you fill out any applications in 1991 after 
 
              Monfort?
 
         
 
                 A  No. No, like I say, I was out there in Las Vegas, 
 
              and I was making pretty good money placing those bets, 
 
              along with I was putting my own money in there, too, 
 
              and I was doing pretty well.
 
         
 
                   See, this Mike Dannerville, the guy that was 
 
              arrested in Kansas City with the methamphetamine, his 
 
              father came up with a betting system for NBA 
 
              basketball, and he was making about a $100,000 doing it 
 
              a year, just through the basketball season.
 
         
 
                   So I was off work, and he said, Go out there and, 
 
              you know, he'd leave me with money and I could place 
 
              these bets for him and take what money I made plus my 
 
              own and make some money.
 
         
 
                 Q  How much do you think you were making there?
 
         
 
                 A  Five thousand a week.
 
         
 
                 Q  You were making five thousand a week?
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
                 A  (Nods yes) And since I've been in here -- or 
 
              actually, before I got here -- He would never tell me 
 
              how the system worked, how this --
 
         
 
                   But I inadvertently -- I was trying to come up 
 
              with my own system and I discovered his, and I improved 
 
              his thirty percent.  So now I'm sitting in here, and if 
 
              I could get back to Las Vegas, on the play-offs alone I 
 
              would have made $105,000.  That's just off the 
 
              play-offs of the NBA.  That's not even counting the 
 
              regular season.  You know, I could have made a quarter 
 
              of a million dollars this year.
 
         
 
                 Q  How long were you out in Las Vegas doing that?
 
         
 
                 A  I was out there from December to February.
 
         
 
                 Q  December of '91?
 
         
 
                 A  '90.
 
         
 
                 Q  December of '90 until February?
 
         
 
                 A  Of '91.
 
         
 
                 Q  Why did you come back?
 
         
 
                 A  Mike was arrested in Kansas City.  I had no means 
 
              of finding out the next day's bets, you know, who to 
 
              bet on or how much or anything like that.  I had a 
 
              couple of teams that we were chasing.  I stuck around 
 
              for them and won and flew back.
 
         
 
         (Ex. 28, p. 99, l. 11 - p. 101, l. 4)
 
         
 
              On approximately February 15, 1991, Dr. Wirtz modified 
 
         claimant's work restrictions to no lifting greater than 15 pounds 
 
         and no work above shoulder height.  Claimant felt he was unable 
 
         to return to work because of his shoulder condition.  He remained 
 
         off work until February 22, 1991, then he again returned to Dr. 
 
         Berg for a follow-up examination.
 
         
 
              As of February 22, 1991, Dr. Berg held the opinion that 
 
         claimant was not going to improve over time and the physician 
 
         advised claimant to return to work.  Dr. Berg imposed the 
 
         following restrictions relative to claimant's then condition as:  
 
         "...15-pound repetitive lifting and 5-pound occasional limit."  
 
         Claimant was to remain on the aforementioned restrictions until 
 
         March 22, 1991.
 
         
 
              Claimant explained to the treating physician that he was 
 
         still encountering problems with his shoulder.  He indicated he 
 
         had inflammation at the top of his shoulder where the humeral 
 
         head was.  Dr. Berg opined that the inflammation was consistent 
 
         with the type of repetitious work which claimant was required to 
 
         perform.  While Dr. Berg recommended an evaluation for the 
 
         purpose of rendering an impairment rating, the physician 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         indicated he did not believe claimant's condition at that time 
 
         was a permanent condition.
 
         
 
              Claimant continued follow-up care.  Dr. Berg testified to 
 
         the following relative to claimant's condition at about the time 
 
         claimant was to return to work:
 
         
 
                 A.  I agree that he wasn't going to get any better.  
 
              Every kind of treatment failed.  He was off work, 
 
              didn't get any better.  Probably at that point in time 
 
              he was at MMI.
 
         
 
         (Ex. 29, p. 37, ll. 16-19)
 
         
 
              In the spring of 1991, Dr. Berg prescribed physical therapy 
 
         and he ordered a tens unit for claimant.  Dr. Berg opined the 
 
         following with respect to the rationale behind ordering physical 
 
         therapy:
 
         
 
                 A.  ...Physical therapy modalities, ultrasound which 
 
              is a way of getting cortisone into that junction, 
 
              electrical stimulation, stretching the muscle, et 
 
              cetera, certainly could be beneficial and reduce his 
 
              symptoms.
 
         
 
         (Ex. 29, p. 47, 11. 2-7)
 
         
 
              In early May of 1991, Dr. Berg and claimant held a 
 
         conversation relative to the types of work which claimant could 
 
         perform.  According to the physician's testimony, he opined that 
 
         claimant could return to work as long as he did not use his left 
 
         arm above chest or shoulder level (Ex. 29, p. 59).  Later in the 
 
         same month, Dr. Berg determined it would be possible for claimant 
 
         to return to work.  A slip allowing a return to work without 
 
         restrictions was issued on May 29, 1991 (Ex. 29, p. 59).  As of 
 
         that date, Dr. Berg diagnosed claimant as having a "left scapular 
 
         thoracic levator scapula syndrome" (Ex. 29, p. 60, ll. 7 & 8).
 
         
 
              The office notes of Dr. Wirtz for November 26, 1990 
 
         contained the subsequent opinion:
 
         
 
                 This patient has noted symptoms in the shoulders on 
 
              various occasions as well as grating in the left 
 
              shoulder blade recently.  He also notes some tenderness 
 
              in the soft tissue mass on the right neck and right 
 
              shoulder area.
 
         
 
                 Exam shows he has a lipoma in the subcutaneous 
 
              tissue which is tender over the distal end of the 
 
              acromium on the right.  Forward flexion of the shoulder 
 
              is 180/180 degrees.  There is a lipoma at approximately 
 
              T6 level to the right side of the midline of the neck 
 
              area which is likewise tender.  His neck flexion is 
 
              full.  Left shoulder has crepitus on motion of 
 
              flexion/extension on the shoulder blade to the rib cage 
 
              area.
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
                 Diagnosis:
 
         
 
                 1.  Crepitus from left shoulder grating.
 
            2.  Lipoma, right shoulder and right neck.
 
         
 
                 The left shoulder is symptomatic with the grating in 
 
              that it causes pain and loss of strength.
 
         
 
                 It would be recommended that the continuous 
 
              repetitive left shoulder activity be restricted.
 
         
 
                 Diagnostic studies would include an MRI to rule out 
 
              the association of the shoulder blade to the rib cage.
 
         
 
         (Ex. 1, p. 1)
 
         
 
              Dr. Wirtz continued to treat claimant through March 25, 
 
         1991.  His notes for his last day of treatment are contained in 
 
         the evidence.  The physician indicated:
 
         
 
                 Patient continues with symptoms in the left shoulder 
 
              blade area and the medial aspect.
 
         
 
                 Exam shows he is tender in the rhomboid muscle on 
 
              the left.  There is crepitus of the left shoulder with 
 
     
 
         
 
         
 
         Page  11
 
         
 
         
 
         
 
              shoulder blade motion on the rib cage.  He has no 
 
              tenderness in the left shoulder area.
 
         
 
                 X-ray, cervical spine, shows narrowing C4-5 in 
 
              relationship to the other spaces.
 
         
 
            Diagnosis:
 
         
 
                 1.  Disc degeneration cervical spine with left                  
 
              rhomboid muscle pain.
 
                 2.  Congenital left scapula grating rib cage.
 
                 3.  MRI diagnosis of a tendinitis of the left                   
 
         shoulder area.
 
         
 
                 At the present time the chief complaint would relate 
 
              to the left rhomboid muscle pain and the disc 
 
              degeneration versus non symptomatic condition of left 
 
              rotator cuff tendinitis and congenital shoulder blade 
 
              grating on rib cage.
 
         
 
                 Management of his chief complaint would relate to 
 
              physical therapy, medications, and activities within 
 
              his physiologic strength and dexterity.
 
         
 
         (Ex. 1, p. 3)
 
         
 
              In the course of his treatment Dr. Wirtz authored several 
 
         reports.  As of February 11, 1991, the orthopedic surgeon 
 
         determined that the following restrictions should be placed upon 
 
         claimant:
 
         
 
                 Presently this patient would have job restrictions 
 
              of repeated over-shoulder-height activities and lifting 
 
              greater than 25 pounds on occasion.  He is to recheck 
 
              again prn.
 
         
 
         (Cl. Ex. 2)
 
         
 
              One week later, Dr. Wirtz authored another report.  He 
 
         wrote:
 
         
 
                 This condition would limit his activities as far as 
 
              over-shoulder-height activities and pulling and pushing 
 
              activities on a repetitive basis.  Employment within 
 
              these restrictions is feasible.  Surgical intervention 
 
              to aid and benefit this is likely to improve his range 
 
              of motion and strength postoperatively following the 
 
              rehabilitation.  Patient has been advised of such and 
 
              he has taken MRI records for other opinion.
 
         
 
         (Cl. Ex. 3)
 
         
 
              In his report of April 15, 1993, the orthopedic surgeon 
 
         authored another medical opinion.  Dr. Wirtz opined:
 
         
 
                 The work activities caused the symptoms to develop 
 
              in the left shoulder area that resulted in the Levator 
 
              scapulae syndrome.
 
         
 
                 This type of work is consistent with tendon 
 
              inflammation such as found on the 1/7/91 MRI.
 
         
 
                 Review of the MRI shows there is a tendon 
 

 
         
 
         Page  13
 
         
 
         
 
         
 
              inflammation, no tendon structure tearing.
 
         
 
                 The healing period specifically is not known in that 
 
              I saw him last on 3/25/91 with symptoms and it would 
 
              have been a period of time following that when he 
 
              reached his maximum medical benefit.
 
         
 
                 The specific evaluation as to a permanent impairment 
 
              requires examination; therefore, such cannot be 
 
              determined based on my last examination 3/25/91.
 
         
 
                 The symptoms in the shoulder area with repetitive 
 
              activity will continue to be symptomatic; therefore, 
 
              recommendations would be possible avoidance of such.
 
         
 
         (Cl. Ex. 5)
 
         
 
              After treating with both Dr. Berg and Dr. Wirtz for a period 
 
         of time, claimant desired another opinion from an orthopedic 
 
         specialist.  He sought an examination from Marvin H. Dubansky, 
 
         M.D.  In the report to claimant's attorney, Dr. Dubansky opined:
 
         
 
                 Mr. Borowiak was seen again on July 18, 1991.  At 
 
              that time he said there has been little or no change in 
 
              his shoulder symptoms.  If he pulls backward, that is 
 
              when it gives him the most trouble.
 
         
 
                 On examination, his shoulder motion was pretty much 
 
              normal.  However, as he pulled backward and moved the 
 
              scapula against the chest wall, there was a loud 
 
              grating and crepitus that could be heard and felt.
 
         
 
                  ...
 
         
 
              1. I do feel his current problem is caused by injury or 
 
                 aggravation of his work at pulling and pushing 
 
                 chucks and rounds from 2/29/88 to 11/6/90 at 
 
                 Monfort.
 
         
 
              2. I feel his diagnosis is that of a subscapular 
 
                 bursitis of the left shoulder.
 
         
 
              3. As he has had Voltaren, Anaprox and Ansaid 
 
                 anti-inflammatories without help, I would suggest a 
 
                 trial of an injection beneath the scapula with some 
 
                 steroid.  The patient, however, refuses to consider 
 
                 this treatment.  How much it would do for him is 
 
                 again unknown.
 
         
 
              4. I don't know.  He tells me he has not been working 
 
                 or doing things to aggravate this so he still has it 
 
                 and when and if it will end, I don't know.  I have 
 
                 no other suggestions, but the injection and I can't 
 
                 be certain that there will be no further 
 
                 improvement.  Therefore, as he does not want a shot, 
 
                 I feel that we should say that he has reached the 
 
                 end of his healing period, but I can't give you any 
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
                 dates in retrospect.
 
         
 
              5. I don't feel he has any neck injury.  Using the AMA 
 
                 Guide [sic] to Physical Impairment, Third Edition, 
 
                 Revised on page 38, joint crepitus which is moderate 
 
                 and constant during active ROM is 20% impairment of 
 
                 the joint which would be of the shoulder joint.  
 
                 This would amount to 12% impairment of the upper 
 
                 extremity.  The shoulder joints relationship to the 
 
                 whole person is 36% impairment, so that 20% of 36% 
 
                 impairment would be 7% impairment of the whole 
 
                 person.
 
         
 
              6. I feel that work requiring pushing, pulling, lifting 
 
                 and repetitious activities with the left upper 
 
                 extremity will aggravate his left shoulder.  I 
 
                 believe it will more likely be permanent.
 
         
 
         (Cl. Ex. 8, pp. 1-2)
 
         
 
              With respect to claimant's employment with defendant, it is 
 
         clear that as of February 8, 1991, the company issued an 
 
         "Employee Separation Form."  A supervisor for the company issued 
 
         the separation form.  He indicated on the face of the document 
 
         that claimant had voluntarily quit because he had an unreported 
 
         absence from work.  It was also uncontroverted evidence that the 
 
         company personnel manager issued a termination notice. It is 
 
         dated February 8, 1991.  On that document, the personnel manager 
 
         determined the reason for the termination notice was that 
 
         claimant had "quit showing" (Cl. Ex. 23).  It was also 
 
         acknowledged that as of November 26, 1990, claimant was off work 
 
         per Dr. Berg's instructions.  Other than the following sentence 
 
         in Dr. Wirtz's office note for the same date, there is no medical 
 
         return to work slip:
 
         
 
                 Q.  Do you have any Monfort records -- and this is 
 
              what I'm asking you -- that release him to go back to 
 
              work before he was terminated on February 8 of '91?
 
         
 
                 A.  Other than the notes on November 26 of 
 
         '90 that says, "He can continue repetitive left 
 
         shoulder activity with restrictions."
 
         
 
         (Ex. 30, p. 37, ll, 19-25)
 
         
 
              Subsequent to his termination, claimant did not actively 
 
         seek traditional forms of employment.  He was arrested in July of 
 
         1991.  He remained incarcerated until he was transferred to the 
 
         Oklahoma facility.  Since his transfer, claimant has worked in 
 
         the penitentiary as a welder in the metals factory shop.  He 
 
         assists in the welding of metal beds.  Michael Wayne Morris, Unit 
 
         Manager, Federal Bureau of Prisons, testified that claimant has 
 
         been a good worker since his admittance, and that he has had no 
 
         incident reports.
 
         
 

 
         
 
         Page  15
 
         
 
         
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              The party who would suffer a loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. App. P. 14 (f).
 
         
 
              The first issues to address deal with whether claimant has 
 
         sustained work-related injuries which arose out of and in the 
 
         course of his employment.
 
         
 
              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).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              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 processes of nature and thereby 
 
         impairs the health, interrupts or otherwise destroys or damages a 
 
         part or all of the body.  Although many injuries have a traumatic 
 
         onset, there is no requirement for a special incident or an 
 
         unusual occurrence.  Injuries which result from cumulative trauma 
 
         are compensable.  McKeever Customhis work injury of November 
 
         6, 1990 is compensable and claimant is entitled to certain 
 
         benefits under the workers' compensation laws.  Dr. Dubansky did 
 
         perform a permanency evaluation on claimant on July 18, 1991.  
 
         The orthopedic surgeon diagnosed claimant as having "subscapular 
 
         bursitis of the left shoulder."  Dr. Dubansky opined that the 
 
         functional impairment involved the shoulder joint and the 
 
         scapula.  He determined that claimant had a seven percent 
 
         permanent functional impairment rating to the body as a whole.  
 
         Dr. Dubansky also placed permanent restrictions on claimant.  
 
         Claimant was precluded from pushing, pulling, lifting and from 
 
         engaging in repetitive activities involving the left upper 
 
         extremity.
 
         
 
              Dr. Berg and Dr. Wirtz did not perform permanency 
 
         evaluations on claimant.  However, Dr. Wirtz did opine that 
 
         claimant should be restricted from repetitive activities with his 
 
         left shoulder.  A TENS unit was also prescribed by Dr. Berg.  
 
         Claimant used the unit up until the time he was incarcerated. 
 
         
 
              It is determined that claimant has sustained a permanent 
 
         condition to his left shoulder area as a result of his employment 
 
         with defendants.  The condition is permanent in nature.  The 
 
         injury is an injury to the body as a whole.
 
         
 
              The functional impairment is in the seven percent range as 
 
         indicated by Dr. Dubansky.
 
         
 
              Claimant argues that he has sustained an industrial 
 
         disability as a result of his permanent condition.  Defendants 
 
         deny that an industrial disability exists in this particular 
 
         situation.
 

 
         
 
         Page  17
 
         
 
         
 
         
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which the employee is 
 
         fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. 
 
         Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 

 
         
 
         Page  18
 
         
 
         
 
         
 
         
 
         as a whole.  Section 85.34.
 
         
 
              The undersigned acknowledges that this situation is a unique 
 
         one.  Claimant, through his own actions, entered a plea of guilty 
 
         to aiding and abetting possession of methamphetamines.  He was 
 
         sentenced to 10 years in federal prison.  He is currently serving 
 
         that sentence.  This was claimant's fourth felony conviction.  
 
         There is no question that claimant's criminal conduct removed him 
 
         from the formal labor market.  From the date he was incarcerated, 
 
         July 18, 1991, claimant was not employable.  However, his 
 
         employability was unrelated to the work injury in question.  The 
 
         earliest possible date on which he could be released from prison 
 
         is April 15, 2000.  He cannot become a viable member of the labor 
 
         force until he is freed from prison.  Then he will serve another 
 
         10 years of supervised probation.  It is unknown what effect his 
 
         felony record and his 10 year probationary term will have upon 
 
         his employability.
 
         
 
              It is just too speculative to determine whether claimant has 
 
         a loss of earning capacity since the date he has been imprisoned.  
 
         In fact, it may be the opposite situation in claimant's 
 
         particular case, as he had a greater earning capacity after the 
 
         work injury than he had before the work injury.  After the work 
 
         injury, claimant was "running bets" in Las Vegas.  He proudly 
 
         boasted during his deposition that he had been earning $5,000.00 
 
         per week as an independent contractor.  Claimant contracted as a 
 
         runner from December of 1990 through February of 1991.  He was 
 
         self-employed.  This is a period of approximately 12.857 weeks.  
 
         According to his exaggerated account, claimant had devised a 
 
         nearly "[f]ail safe method for betting on NBA basketball games."  
 
         He freely admitted during his deposition that had he not been 
 
         incarcerated, he would have earned a quarter of a million dollars 
 
         in 1991.
 
         
 
              It is this deputy industrial commissioner's decision that 
 
         once claimant was incarcerated on July 18, 1991, he was no longer 
 
         available for suitable work.  He had voluntarily removed himself 
 
         from the labor market.  It is also this deputy's determination 
 
         that it is impossible to determine any loss of earning capacity 
 
         as of the date of his incarceration.  However, it is this 
 
         deputy's determination that claimant is entitled to permanent 
 
         partial disability benefits from the date claimant reached 
 
         maximum medical improvement, until July 18, 1991.  It is noted 
 
         that during this time frame, claimant was permanently restricted 
 
         from engaging in production line work in packing plants.  
 
         Claimant was precluded from engaging in repetitive type 
 
         activities.  Claimant had suffered a loss of earning capacity 
 
         since he was precluded from performing many factory type 
 
         positions.
 
         
 
              The issue of healing period benefits is in dispute in this 
 
         particular case.  Claimant is requesting benefits from November 
 
         26, 1990 through July 18, 1991.  This is a period of 33.571 
 
         weeks.  Claimant was removed from his job with defendant-employer 
 
         as of November 26, 1990.  However, from about December 1, 1990 
 
         through February 28, 1991, claimant was self-employed as the 
 
         aforementioned runner.  Claimant was earning approximately 
 

 
         
 
         Page  19
 
         
 
         
 
         
 
         
 
         $5,000.00 per week in his capacity as a runner.  Since he was 
 
         employed for that 12 week period, defendants are not liable for 
 
         healing period benefits during this time frame.
 
         
 
              However, as of March, claimant had returned to Des Moines.  
 
         He was not working.  Defendant employer maintained claimant 
 
         voluntarily quit his position with the company as claimant had 
 
         abandoned his job.  This deputy determines that as of February 
 
         22, 1991 claimant was terminated from his position even though he 
 
         was still under physical restrictions as imposed by the two 
 
         company physicians.  At the time of claimant's termination, he 
 
         had not been released to return to work with defendant employer.  
 
         He was incapable of returning to production work. Claimant had 
 
         not abandoned his job.  He was precluded from returning to it at 
 
         that time.
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical 
 
         recovery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
         be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              Both Drs. Berg and Wirtz indicated that in March of 1991, 
 
         claimant was near maximum medical improvement.  Dr. Wirtz opined 
 
         that maximum medical improvement occurred on March 25, 1991.  
 
         This deputy is in agreement with the two treating physicians with 
 
         respect to maximum medical improvement.  It is therefore 
 
         determined that claimant is entitled to healing period benefits 
 
         from November 26, 1990 through November 30, 1990.  Claimant is 
 
         again entitled to healing period benefits from March 1, 1991 
 
         through March 25, 1991, the date Dr. Wirtz determined maximum 
 
         medical improvement had taken place.  This is a period of 4.285 
 
         weeks.  Prior to the date of the hearing, defendants paid 
 
         claimant 5.429 days of healing period benefits.
 
         
 
              As aforementioned, claimant would be entitled to permanent 
 
         partial disability benefits from March 26, 1991, the date he 
 
         reached maximum medical improvement, through the date claimant 
 
         was incarcerated on July 18, 1991.  This is a period of 16.429 
 
         weeks.  Claimant is entitled to 16.429 weeks of permanent partial 
 
         disability benefits for this period at the stipulated rate of 
 
         $214.00 per week.
 
         
 
                              
 
         
 
         
 
         Page  20
 
         
 
         
 
         
 
         
 
                                    ORDER
 
         
 
              With respect to file number 1044783 claimant takes nothing 
 
         from these proceedings.
 
         
 
              With respect to file number 969403, claimant is entitled to 
 
         four point two-eight-five (4.285) weeks of healing period 
 
         benefits at the stipulated rate of two hundred fourteen and 
 
         no/l00 dollars ($214.00) per week.
 
         
 
              With respect to file number 969403, claimant is also 
 
         entitled to sixteen point four-two-nine (16.429) weeks of 
 
         permanent partial disability benefits from March 26, 1991 through 
 
         July 18, 1991, at the stipulated rate of two hundred fourteen and 
 
         no/l00 dollars ($214.00) per week.
 
         
 
              Defendants shall take credit for all benefits previously 
 
         paid to claimant.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year.
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of April, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Gregory T. Racette
 
         Attorney at Law
 
         2700 Grand Avenue
 
         Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Timothy W. Wegman
 
         Attorney at Law
 
         405 Sixth Avenue Suite 700
 
         PO Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1802; 1803
 
                                              Filed April 29, 1994
 
                                              MICHELLE A. McGOVERN
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GERALD BOROWIAK,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File Nos. 969403
 
            SIPCO, INC. d/b/a MONFORT                      1044783
 
            BEEF,     
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1802
 
            Claimant was awarded some healing period benefits as a 
 
            result of a work injury which he had sustained while he was 
 
            working as a meat packer.
 
            
 
            
 
            1803
 
            For nearly 14 years, claimant had worked as a bookkeeper and 
 
            a fund raiser for the Coptic Church in Des Moines.  During 
 
            his tenure with the church, claimant had a variety of 
 
            duties.  Often claimant assisted with the distribution of 
 
            food to the other members of the organization. At the time 
 
            of his employment with the Coptic Church, claimant worked in 
 
            the area which is now known as Saylorville Lake.  However, 
 
            the Coptic Church is headquartered in Jamaica.  Claimant 
 
            testified he never visited headquarters.  It is not known 
 
            why claimant's position with the church was terminated.
 
            Prior to his work injury on November 26, 1990, claimant had 
 
            been convicted of three felony drug charges.   At least two 
 
            of the charges involved the growing of marijuana. 
 
            Nevertheless, defendant-employer had always been ready to 
 
            hire claimant whenever claimant applied for a position 
 
            following his release from prison.   Claimant had a good 
 
            work record during his periods of employment with this 
 
            employer
 
            Claimant had been evaluated as having a 7% functional 
 
            impairment rating to the body as a whole as a result of 
 
            claimant's work injury to his left shoulder.  
 

 
            
 
 
 
            Claimant was determined to have sustained a work related 
 
            injury which occurred on November 26, 1990.  He was removed 
 
            from work by the company physicians.  Claimant was 
 
            restricted from returning to production line work.    
 
            In February of 1992 claimant was notified that he had been 
 
            terminated by the employer because claimant allegedly 
 
            abandoned his job as a meat packer.  However, it was 
 
            determined that claimant had not reached maximum medical 
 
            improvement until March 25, 1991.  
 
            
 
            Claimant alleged he had sustained an industrial disability.  
 
            Defendants denied that an industrial disability existed 
 
            because on July 18, 1991, claimant was arrested for aiding 
 
            and abetting the possession of methamphetamines. Defendants 
 
            argued that as of the date of claimant's incarceration, he 
 
            had voluntarily removed himself from the labor market and 
 
            that any loss of earning capacity was purely speculative.
 
            Claimant was immediately incarcerated following his arrest 
 
            on July 18, 1991.  Eventually claimant entered a guilty 
 
            plea.  This was his fourth felony conviction involving 
 
            illegal drugs.  As a consequence of his plea entry, claimant 
 
            was sentenced to 10 years in the federal penitentiary in El 
 
            Reno, Oklahoma.  The earliest date on which claimant could 
 
            be released is April 15, 2000.
 
            
 
            During his deposition, claimant boasted that after his work 
 
            injury on November 26, 1990, he had  contracted with a 
 
            Kansas City individual to "run bets on NBA basketball 
 
            games".  Claimant testified that he had agreed to travel to 
 
            Las Vegas.  He also stated that he  was given money with 
 
            which he was to place bets.  Claimant indicated he performed 
 
            his duties and that he earned approximately $5,000.00 per 
 
            week in his capacity as a runner.  Claimant was 
 
            self-employed in this capacity from December 1, 1990 through 
 
            February 28, 1991. Claimant also exaggerated during his 
 
            deposition that had he not been incarcerated, he would have 
 
            earned a quarter of a million dollars in 1991 as he had 
 
            devised a sure way for betting on basketball games.
 
            HELD:  The deputy industrial commissioner held that claimant 
 
            had sustained a permanent partial disability to the body as 
 
            a whole and that claimant was entitled to permanent partial 
 
            disability benefits from the date claimant had been 
 
            determined to have reached maximum medical improvement to 
 
            the date claimant was incarcerated.  However, the deputy 
 
            held that claimant's criminal conduct voluntarily removed 
 
            claimant from the labor market.  The deputy also determined 
 
            that it would have been speculative to determine whether 
 
            claimant had sustained a loss of earning capacity since 
 
            claimant was incarcerated with no hopes of a release until 
 
            the year 2000.  The deputy additionally determined that 
 
            despite claimant's loss of his job, he may have had an 
 
            increase in his earning capacity.  Given his self-employment 
 
            as a runner in the gambling industry, and given claimant's 
 
            fail safe system for betting on the NBA basketball games, he 
 
            potentially increased his capacity for earning wages.  
 
            Held:  Claimant was entitled to 16.429 weeks of permanent 
 
            partial disability benefits.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
EARL STRAIT,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                   File No. 969547
 
CONTRACT SERVICES, LTD.,     
 
                                 A R B I T R A T I O N
 
     Employer, 
 
                                   D E C I S I O N
 
and       
 
          
 
LIBERTY MUTUAL INSURANCE CO., 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
                     STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Earl Strait, claimant, 
 
against Contract Services, employer, and Liberty Mutual Insurance 
 
Company, insurance carrier, defendants, for workers' compensation 
 
benefits as a result of an alleged injury on November 20, 1990.  On 
 
December 14, 1994, a hearing was held on claimant's petition and the 
 
matter was considered fully submitted at the close of this hearing.
 
 
 
The parties have submitted a hearing report of contested issues and 
 
stipulations which was approved and accepted as a part of the record of 
 
this case at the time of hearing.  The oral testimony and written 
 
exhibits received during the hearing are set forth in the hearing 
 
transcript.
 
 
 
According to the hearing report, the parties have stipulated to the 
 
following matters:
 
 
 
1.  An employee-employer relationship existed between claimant and 
 
Contract Services at the time of the alleged injury.
 
 
 
2.  On November 20, 1990, claimant received an injury arising out of 
 
and in the course of employment with Contract Services.
 
 
 
3.  Claimant is not seeking additional temporary total or healing 
 
period benefits.
 
 
 
4.  If the injury is found to have caused permanent disability, the 
 
type of disability is an industrial disability to the body as a whole.
 
 
 
5.  If permanent partial disability benefits are awarded, they shall 
 
begin as of April 1, 1991 for the period as stipulated.
 
 
 
6.  At the time of injury claimant's gross rate of weekly compensation 
 
was $623.00; he was single; and, he was entitled to one exemption.  
 
 
 
Therefore, claimant's weekly rate of compensation is $348.90 according 
 
to the Industrial Commissioner's published rate booklet for this 
 
injury.
 
 
 
7.  Medical benefits were not in dispute.
 
 
 
                              ISSUES
 
 
 
The parties submitted the following issues for determination in this 
 
proceeding:
 
 
 
 I.  The extent of claimant's entitlement to permanent disability 
 
benefits; and,
 
 
 
II.  The extent of defendant's entitlement to credit for salary 
 
continuation during the healing period.
 

 
 
 
 
 
 
 
                        FINDINGS OF FACT
 
 
 
Having heard the testimony and considered all of the evidence, the 
 
deputy industrial commissioner finds as follows:
 
 
 
A credibility finding is necessary to this decision as defendants 
 
placed claimant's credibility at issue during cross-examination as to 
 
the nature and extent of the disability.  From his demeanor while 
 
testifying, claimant is found credible.
 
 
 
Claimant worked for Contract Services since 1983 and continues to do so 
 
at the present time.  Initially, he was a lead person or foreman but at 
 
the time of injury he was plant manager over the crew at the Armour 
 
plant in Mason City.  Claimant's employer contracts with meatpacking 
 
plants for cleanup operations at the plant.  This work, prior to 1983 
 
and the purchase of Armour by Con Agra, was performed directly by 
 
Armour employees.  According to claimant's boss, claimant is in charge 
 
at the Mason City plant and is considered a good employee.  Although he 
 
is a manager, he routinely is expected to perform physical work to 
 
assist his crew or to fill in for absent crew members.
 
 
 
The injury in this case occurred when he slipped and hurt his back.  
 
Claimant first received conservative care from physicians but was later 
 
referred to David Beck, M.D., who upon a diagnosis of a herniated disc, 
 
performed surgery on claimant's back in February 1991.  Claimant, 
 
however, had continuing problems after surgery and returning to work.  
 
 
 
He was eventually referred to another physician, Charles Burton, M.D., 
 
at the Institute for Low Back Care in Minnesota.  Upon a diagnosis of 
 
recurrent herniated disc, claimant underwent a second surgery by Dr. 
 
Burton in May 1993.  Claimant again continued to have problems and was 
 
referred back to the Low Back Institute.  Dr. Burton and others on 
 
staff have recommended a third surgery.  Upon further evaluation, 
 
physicians at the Mayo Clinic in Minnesota have recommended against 
 
this third surgery.  Claimant has justifiably refused this third 
 
surgery.  Claimant has received ratings from 5 percent to 23 percent 
 
for permanent partial impairment to the body as a whole from effects of 
 
this work injury.  Claimant is currently restricted permanently from 
 
repetitive bending; persistent positioning greater than 30 degrees at 
 
the hips; any lifting over 30 pounds with only frequent lifting from 15 
 
to 20 pounds; and, only occasional lifting up to 30 pounds.  All 
 
physicians rendering opinions in this case relate claimant's current 
 
problems to the injury in this case although claimant had some back 
 
pain and was off work for as much as a week on one occasion.
 
 
 
It is found that the work injury was a cause of significant permanent 
 
impairment to the body as a whole.  There was no evidence that claimant 
 
had impairment prior to this work injury.  Prior to the injury, 
 
claimant was able to fully perform physical tasks involving heavy 
 
lifting; repetitive lifting; bending; twisting and stooping; and, 
 
prolonged standing and sitting.
 
 
 
Claimant is 50 years of age. Claimant's past employment has always 
 
involved heavy work beginning with his first full time employment at 
 
the Armour plant in 1963.  His only other work was shoveling grain for 
 
a grain dealer.  Claimant certainly would have great difficulty 
 
performing such work today.  Claimant would not be easily retrained 
 
today as he has only an eighth grade education, having dropped out of 
 
school in the ninth grade.  He has not earned a GED.
 
However, claimant is essentially a manager and to date is able to 
 
perform his managerial duties satisfactorily within his current work 
 
restrictions.  Claimant's earnings today are greater than his earnings 
 
at the time of injury.
 
 
 
On the other hand, a good deal of the labor market is no longer 
 
available to him due to his permanent work restrictions.  Should he 
 
lose his job at Contract Services he would certainly find it difficult 
 
to secure replacement employment given his age, lack of education and 
 
past heavy labor employment.  Claimant and his supervisor at Contract 
 
Services agree that claimant's current earnings are about $100 less per 
 
week due to his inability to return to trouble shooting work that he 
 
did prior to 1988.  He was taken off trouble shooting then at the 
 
request of Armour management but management personnel has since 
 
changed.  Therefore, despite his current employment, claimant's 
 

 
 
 
 
 
 
 
 
 
 
 
disability is significant and must be compensated.
 
 
 
From examination of all of the factors of industrial disability, it is 
 
found that the work injury of November 20, 1990 was a cause of a 25 
 
percent loss of earning capacity.
 
 
 
In the hearing report, it was agreed that claimant received salary in 
 
lieu of compensation during his healing period.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
 I.  Claimant must next establish by a preponderance of the evidence 
 
the extent of weekly benefits for permanent disability to which 
 
claimant is entitled.  As the claimant has shown that the work injury 
 
was a cause a permanent physical impairment or limitation upon activity 
 
involving the body as a whole, the degree of permanent disability must 
 
be measured pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
scheduled member disabilities, the degree of disability under this 
 
provision is not measured solely by the extent of a functional 
 
impairment or loss of use of a body member.  A disability to the body 
 
as a whole or an "industrial disability" is a loss of earning capacity 
 
resulting from the work injury.  Diederich v. Tri-City R. Co., 219 Iowa 
 
587, 593, 258 N.W. 899 (1935).  A physical impairment or restriction on 
 
work activity may or may not result in such a loss of earning capacity. 
 
 
 
 Examination of several factors determines the extent to which a work 
 
injury and a resulting medical condition caused an industrial 
 
disability.  These factors include the employee's medical condition 
 
prior to the injury, immediately after the injury and presently; the 
 
situs of the injury, its severity and the length of healing period; the 
 
work experience of the employee prior to the injury, after the injury 
 
and potential for rehabilitation; the employee's qualifications 
 
intellectually, emotionally and physically; earnings prior and 
 
subsequent to the injury; age; education; motivation; functional 
 
impairment as a result of the injury; and inability because of the 
 
injury to engage in employment for which the employee is fitted.  Loss 
 
of earnings caused by a job transfer for reasons related to the injury 
 
is also relevant.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
Decision, February 28, 1985).
 
 
 
A showing that claimant had no loss of his job or actual earnings does 
 
not preclude a finding of industrial disability. Michael v. Harrison 
 
County, 34 Bien Rep., Ia Ind. Comm'r 218, 220 (App. Dec. 1979); Bearce 
 
v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held that continued 
 
employment with no loss of earnings is significant evidence that should 
 
not be overlooked in measuring loss of earning capacity.  Loss of 
 
potential employment is also a factor to consider in assessing 
 
industrial disability.  Collier v. Sioux City Comm. Sch. Dist., File 
 
No. 953453 (App. Dec. Filed February 25, 1994).
 
 
 
In the case sub judice, it was found that claimant suffered a 25 
 
percent loss of his earning capacity as a result of the work injury.  
 
Although he is employed, his disability is aggravated by his age, 
 
limited education and past history of only heavy labor jobs which he 
 
can no longer perform.  Such a finding entitles claimant to 125 weeks 
 
of permanent partial disability benefits as a matter of law under Iowa 
 
Code section 85.34(2)(u) which is 25 percent of 500 weeks, the maximum 
 
allowable number of weeks for an injury to the body as a whole in that 
 
subsection. 
 
 
 
II.  According to the hearing report, defendants are seeking full 
 
credit for continuation of claimant's salary.  Such a credit is limited 
 
to the amount of worker's compensation benefits that would have been 
 
paid.  Payments of salary in excess of that amount, by specific rule, 
 
cannot offset other disability entitlements.  Division of Industrial 
 
Services Rule 343 IAC 8.4.  Also, there is no credit for payroll taxes 
 
paid on this income.
 
 
 
                                 ORDER
 
 
 
1.  Defendants shall pay to claimant one hundred twenty-five (125) 
 
weeks of permanent partial disability benefits at a rate of three 
 
hundred forty-eight and 90/l00 dollars ($348.90) per week from April 1, 
 
1991.
 
 
 
2.  Defendants shall pay accrued weekly benefits in a lump sum and 
 
shall receive credit against this award for healing period benefits 
 

 
 
 
 
 
 
 
 
 
previously paid.  The credit for salary payments against this award is 
 
limited to the weekly rate of compensation for each week in which a 
 
salary was paid.
 
 
 
3.  Defendants shall pay interest on weekly benefits awarded herein as 
 
set forth in Iowa Code section 85.30. 
 
 
 
4.  Defendants shall pay the costs of this action pursuant to rule 343 
 
IAC 4.33, including reimbursement to claimant for any filing fee paid 
 
in this matter.
 
 
 
5.  Defendants shall file activity reports on the payment of this award 
 
as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of January, 1995.                           
 
                               ______________________________                              
 
                                LARRY P. WALSHIRE                            
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Robert W. Pratt
 
Attorney at Law
 
6959 University Ave
 
Des Moines IA  50311-1540
 
 
 
Mr. Richard G. Book
 
Attorney at Law
 
500 Liberty Bldg
 
Des Moines  IA  50309
 
     
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                5-1803
 
                                Filed January 23, 1995
 
                                LARRY P. WALSHIRE
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
EARL STRAIT,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 969547
 
CONTRACT SERVICES, LTD.,     
 
                                     A R B I T R A T I O N
 
     Employer, 
 
                                        D E C I S I O N
 
and       
 
          
 
LIBERTY MUTUAL INSURANCE CO., 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
5-1803
 
Non-precedential, extent of disability case.
 
     
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
BRENT L JENKINS,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 969619
 
DEE ZEE MANUFACTURING,  
 
                                   A R B I T R A T I O N
 
     Employer, 
 
                                      D E C I S I O N
 
and       
 
          
 
AMERICAN PROTECTION INS.,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Brent Jenkins against 
 
his former employer, Dee Zee Manufacturing, Inc. based upon an alleged 
 
injury of December 6, 1990.  The date of injury alleged is based upon 
 
the discovery rule.  The date of the last exposure was October 31, 
 
1990.  Claimant seeks compensation for healing period running from July 
 
20, 1991 through the date of hearing.  He also alleges that he is 
 
permanently and totally disabled.  He seeks payment of medical expenses 
 
in the total amount of $4,564.12.  Claimant's claim is that he was 
 
exposed to injurious dusts while he was employed by Dee Zee 
 
Manufacturing, Inc., that the exposure caused him to develop chronic 
 
sinusitis which in turn led to the development of depression.  
 
 
 
Defendants dispute that there was any injury which arose out of and in 
 
the course of employment.  They dispute that any alleged injury is a 
 
cause of any temporary or permanent disability.  They dispute the 
 
reasonableness of the medical care which the claimant has received and 
 
that the expenses incurred are causally connected to any alleged 
 
injury.
 
 
 
The case was heard at Des Moines, Iowa on September 16, 1994.  The 
 
record consists of jointly offered exhibits 1 through 83; testimony 
 
from Brent L. Jenkins, Kevin F. Smith, M.D., and Joyce Jenkins.
 
 
 
                     FINDINGS OF FACT
 
 
 
Brent Jenkins is a 25-year-old man who did not complete high school.  
 
His medical history is significant for a 1985 accident which caused a 
 
compression fracture in his back.  In 1987 he underwent three 
 
surgeries.  After the first, a tonsillectomy, there was sufficient 
 
concern about his psychological status that a psychiatrist became 
 
involved in his care and prescribed amitriptyline, an anti-depressant.  
 
No actual diagnosis of any psychological condition appears in the 
 
records.  (Exhibits 1, 2, 3)  In the fall of 1986 claimant had appeared 
 
to be depressed in the common sense of the term and to exhibit general 
 
apathy.  (Ex. 6, pp. 7, 8)  
 
 
 
After leaving high school in early 1987 claimant moved to Des Moines.  
 
Most of his employment was in the field of retail sales at department 
 
stores but he had also worked as a busboy and as a security officer.  
 
In May 1989 he was apparently employed at Prairie Meadows.  He resumed 
 
living in his parents' home in late 1989 but returned to Des Moines in 
 

 
 
 
 
 
 
 
 
 
February 1990 shortly after he had commenced employment with Dee Zee 
 
Manufacturing, Inc. on January 23, 1990.
 
 
 
At Dee Zee Brent worked principally in the buffing room where he used a 
 
large sander to remove the outer layer from aluminum parts.  The 
 
process created a considerable volume of dense dust.  The ventilation 
 
system was inadequate.  Personal respirator devices were not properly 
 
used.  Some employees were exposed to levels of dust which exceeded the 
 
permissible exposure level set by OSHA.  (Exs. 82, 83)
 
 
 
Claimant testified that he and his coworkers had a lot of difficulty 
 
such as nasal congestion, upper respiratory infections, sinusitis, 
 
bloody noses, productive cough, and chest pains.  He spoke of a thick, 
 
mucus discharge from the nose and mouth.  Claimant testified at hearing 
 
that he did not seek medical attention while he was employed at Dee Zee 
 
because he did not know that the symptoms would cause a chronic 
 
condition.  While employed at Dee Zee Brent developed dermatitis due to 
 
exposure to cutting oils.  (Exs. 20, 21)  The condition cleared with 
 
treatment and avoidance of further exposure.  He also developed a 
 
severe infection as a result of a trauma to his ear.  (Exs. 16, 18)
 
 
 
Claimant became quite concerned when he learned of the possibly 
 
injurious exposures in his workplace.  He contacted legal counsel and 
 
sought to organize other employees.  On September 19, 1990 claimant was 
 
given a written warning by his employer for excessive tardiness and 
 
placed on a 90-day probation.  The warning makes mention of court 
 
dates.  The attendance calendar, exhibit 8, shows that a court date was 
 
scheduled for October 18.  It shows no other absences subsequent to 
 
September 19, 1990.  Nevertheless, claimant's employment was terminated 
 
on October 31, 1990.  The reason stated is excessive points for 
 
tardiness.  (Ex. 12)  This supports cl This supports cl's contention 
 
that the termination was retaliatory.
 
 
 
On December 4, 1990 claimant sought care at the Lutheran Hospital 
 
emergency department.  He complained of troubled breathing off and on 
 
since mid-October with the onset of the recent episode having occurred 
 
earlier in the day.  Examination of his head, eyes, ears, nose, and 
 
throat was negative.  (Ex. 17)  Similar examinations on other dates 
 
were likewise negative.  During a pre-employment physical conducted on 
 
September 5, 1990 claimant's condition was normal with no evidence of 
 
sinusitis.  (Ex. 22)  No indication of sinusitis was noted when 
 
claimant was treated for the ear injury in July 1990.  (Exs. 15, 16)  
 
No sinusitis or respiratory symptoms were noted when claimant was 
 
treated for the dermatitis in August 1990.  (Exs. 20, 21)  
 
 
 
Claimant conducted a great deal of research investigating the potential 
 
health hazards of workplace dust exposures.  On or about December 6, 
 
1990 he wrote to Dee Zee Manufacturing, Inc. to notify the company that 
 
he had been seriously injured while working at its facility.  In the 
 
letter he states that he is still unemployed and can't work due to his 
 
health condition.  He asked that his claim be referred to the workers' 
 
compensation insurance carrier and that he be provided treatment.  (Ex. 
 
13, p. 17)  A few days later, on December 10, 1990, claimant wrote to 
 
Kemper Insurance Company informing them that he has received several 
 
serious, long-term, work-related injuries while employed by Dee Zee 
 
Manufacturing.  He speaks of having respiratory problems and other 
 
health impairments due to the employment.  He states that his health 
 
impairments are serious and that he is unable to take a job because he 
 
is not capable of performing physical work.  He requests assistance in 
 
regaining his health.  (Ex. 44)  Claimant also wrote to Schaffner 
 
Manufacturing relating that he had skin rashes and was searching to 
 
find the chemicals to which he was allergic.  He requested information 
 
on four products.  (Ex. 46)
 
 
 
Claimant entered into a course of care with Kevin Smith, M.D.  He was 
 
diagnosed as having chronic sinusitis which he felt was caused by the 
 
nuisance dust to which claimant was exposed at Dee Zee Manufacturing, 
 
Inc.  Dr. Smith is the only physician who has diagnosed sinusitis.  Dr. 
 
Smith was unwilling to state that the depression had resulted from the 
 
workplace exposures to dust.  When claimant was seen by Dennis M. 
 
Porto, M.D., on January 30, 1991, no definite abnormality was noted.  
 
(Ex. 51)  When seen on March 11, 1991, at the University of Iowa 
 

 
 
 
 
 
 
 
 
 
Hospitals, Laurence J. Fuortes, M.D., found that claimant probably had 
 
an adjustment disorder subsequent to acute respiratory illness which 
 
occurred as a result of dust exposure in the workplace.  (Ex. 53)  On 
 
April 9, 1991 a diagnosis of possible major depressive disorder was 
 
made by Dr. Fuortes.  (Exs. 54, 55)  
 
 
 
In summary, this claimant has been extensively tested.  The only 
 
long-term objective abnormality or diagnosis is that of depression.  
 
That diagnosis is consistently confirmed by Mark Preston, M.D., a 
 
psychiatrist.  Dr. Preston identified the possibility that claimant's 
 
absenteeism problems at Dee Zee were possibility due to depression and 
 
alcoholism.  (Ex. 80, pp. 10-11)  He felt that it was unlikely that 
 
exposure to toxins at Dee Zee Manufacturing caused claimant's 
 
depression.  (Ex. 80, pp. 20-21)  Dr. Preston accepted the diagnosis of 
 
chronic sinusitis as being accurate and stated that it was probably a 
 
significant factor in developing claimant's depression though it was 
 
less significant than other causes.  (Ex. 80, pp. 29, 45, 46, 56, 57)  
 
In making his opinion Dr. Preston noted that the claimant's perceived 
 
injustice and injuries were also important factors.  
 
 
 
Claimant was also evaluated by Mark E. Thoman, M.D., a specialist in 
 
clinical toxicology.  Dr. Thoman found no sign of sinusitis when he 
 
examined claimant in April 1994.  Dr. Thoman stated that depression is 
 
seen commonly in association with alleged or true toxic exposure.  He 
 
stated that the depression can result due to frustration over not 
 
getting well.  (Ex. 81, p. 32)  Dr. Thoman related that typically 
 
individuals afflicted with depression are frustrated and ruminate over 
 
their condition.  He stated that they read and send away for references 
 
to help investigate their condition.  (Ex. 81, p. 33-35)  Dr. Thoman 
 
indicated that claimant's depression came from him thinking about his 
 
condition rather than from the actual exposure itself.  (Ex. 81, p. 55) 
 
 
 
He stated that it was claimant's fixation on his exposure rather than 
 
the exposure itself that produced the depression.  (Ex. 81, pp. 55-57)  
 
 
 
Chronic sinusitis of the type which was described in the record of this 
 
case is not a severe or life threatening condition.  It is not 
 
disabling in the sense of making a person unable to work.  It is very 
 
difficult for the undersigned to accept the proposition that such a 
 
minor condition could produce depression in an otherwise 
 
psychologically normal or healthy individual.  Where the injury and 
 
physical disability is severe, it is understandable that depression can 
 
occur.  In this case, however, the injury, if any, appears to have been 
 
negligible and disability from the dust exposure appears to be 
 
nonexistent.  
 
 
 
The record in this case does show a great deal of rumination and 
 
fixation on the dust exposure.  There is no showing of sinusitis 
 
symptoms at any point during the time that the claimant was employed at 
 
Dee Zee Manufacturing but it would not be uncommon or unexpected for 
 
some to have existed.  Almost anyone has running noses, hay fever type 
 
symptoms, colds and upper respiratory infections at random times.  It 
 
is doubtful that claimant being employed at Dee Zee Manufacturing would 
 
have made him immune from such common ailments.  There is no medical 
 
opinion in the record of this case which directs work restrictions or 
 
finds a permanent impairment as a result of sinusitis.  The evidence 
 
simply fails to show that it is probable, rather than merely possible, 
 
that the workplace caused chronic sinusitis.  It is impossible to know 
 
all of claimant's exposures which could produce symptoms such as those 
 
of sinusitis which have been observed.  It is extremely unlikely that 
 
an exposure that ended on October 31, 1990 would not be producing those 
 
symptoms in September 1990 but would produce the symptoms on and after 
 
December 4, 1990.  
 
 
 
Though claimant was not receiving medical care and was not closely 
 
observed prior to the time he left Dee Zee Manufacturing there is 
 
reason to believe that his depression may have already been ongoing, 
 
though perhaps not fully developed.  There is evidence which suggests 
 
that he might be particularly susceptible to developing depression.  
 
Simply stated, it is difficult to attribute this claimant's depression 
 
to his work at Dee Zee Manufacturing, Inc. because the chronic 
 

 
 
 
 
 
 
 
 
 
sinusitis has not been established as having its origin in that 
 
employment.  Further, from the record made, it does not appear that the 
 
exposure was particularly great or that the effects of the exposure 
 
were of a disabling magnitude.  The undersigned finds that the evidence 
 
which attributes this claimant's depression to his employment at Dee 
 
Zee Manufacturing, Inc. is simply unpersuasive.  The evidence to the 
 
contrary is stronger.  
 
 
 
                     CONCLUSIONS OF LAW
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. of App. P. 14(f).
 
 
 
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).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
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 processes of nature 
 
and thereby impairs the health, interrupts or otherwise destroys or 
 
damages a part or all of the body.  Although many injuries have a 
 
traumatic onset, there is no requirement for a special incident or an 
 
unusual occurrence.  Injuries which result from cumulative trauma are 
 
compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
(1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. 
 
Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An 
 
occupational disease covered by chapter 85A is specifically excluded 
 
from the definition of personal injury.  Iowa Code section 85.61(5); 
 
Iowa Code section 85A.8.
 
 
 
Since this claim is based upon an allegation of trauma from injurious 
 
dust exposure the "impact rule" is available as a basis for 
 
compensation.  Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848 (Iowa 
 
1969); Gosek v. Garmer & Stiles Co., 158 N.W.2d 731, 733 (Iowa 1968)  
 
 
 
In order for the impact rule to be applied, however, the trauma must be 
 
real, not imagined.  Newman v. John Deere Ottumwa Works, 372 N.W.2d 199 
 
(Iowa 1985)  In this case it is concluded that the alleged trauma was 
 
so mild as to be nonexistent or imagined.  While claimant may well have 
 
had sinusitis several months after his employment ended, the record 
 
simply fails to show that the employment at Dee Zee Manufacturing, Inc. 
 
caused this claimant to develop sinusitis.
 
 
 
It is also appropriate to examine this case as a mental-mental injury 
 

 
 
 
 
 
 
 
 
 
claim.  In cases of nontraumatically-caused mental injury, the 
 
industrial commissioner follows the "Wisconsin" rule which is favored 
 
in 1B Larson The Law of Workmen's Compensation, 42.23(b).  Desgranges 
 
v. Dep't of Human Services, File No. 760747 (App. Dec. August 19, 
 
1988).
 
 
 
Under the "Wisconsin" rule, a nontraumatically-caused mental injury is 
 
compensable only when the injury "resulted from a situation of greater 
 
dimensions than the day-to-day mental stresses and tensions which all 
 
employees must experience."  Swiss Colony v. Dep't of Indus., 
 
L._&_H._R., 72 Wis. 2d 46, 240 N.W.2d 128 (1976).  In other words, both 
 
medical and legal causation must be resolved before finding an injury 
 
arising out of employment.  The medical causation issue involves an 
 
examination into the cause and effect relationship between the stresses 
 
and tensions at work and the mental difficulties.  If the medical 
 
causation issue is resolved in favor of the claimant, legal causation 
 
is examined.  Legal causation involves a determination of whether the 
 
work stresses and tensions, when viewed objectively and not as 
 
perceived by claimant, were "out of the ordinary from the countless 
 
emotional strains and differences that employees encounter daily 
 
without serious mental injury."  School Dist. #1 v. Dep't of Indus., L. 
 
& H. R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974).
 
 
 
The record of this case fails to show that this claimant was subjected 
 
to any level of stress which was out of the ordinary from that which 
 
employees encounter on a daily basis without sustaining serious mental 
 
injury.
 
 
 
It is therefore concluded that Brent Jenkins has failed to prove by a 
 
preponderance of the evidence that either his sinusitis or depression 
 
was proximately caused by anything associated with his employment at 
 
Dee Zee Manufacturing, Inc., either directly or as an aggravation of a 
 
preexisting condition.  The apparent lack of sinusitis symptoms at the 
 
times claimant received medical care while he was employed at Dee Zee 
 
Manufacturing, Inc. when combined with the interval between his leaving 
 
that employment and the diagnosis by Dr. Smith outweighs the 
 
explanation from Dr. Smith in view of the other opinion evidence in the 
 
record.  The undersigned determines that the claimant has failed to 
 
carry his burden of proof on the issue of causation.
 
 
 
                             ORDER
 
 
 
IT IS THEREFORE ORDERED that claimant take nothing in this proceeding.  
 
 
 
Each party is responsible for paying the costs incurred in 
 
participating in this proceeding.  Neither party shall recover costs 
 
from the other.
 
 
 
Signed and filed this __________ day of December, 1994.
 
                              
 
                              ______________________________
 
                              MICHAEL G. TRIER
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Max Schott
 
Attorney at Law
 
6959 University Ave
 
Des Moines, Iowa  50311-1540
 
 
 
Mr. Harry Dahl III
 
Attorney at Law
 
974 - 73rd St, STE 16
 
Des Moines, Iowa  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                             51108.30 51402.30 52205 52204
 
                             Filed December 16, 1994
 
                             Michael G. Trier
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
BRENT L JENKINS,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 969619
 
DEE ZEE MANUFACTURING,  
 
                                  A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
AMERICAN PROTECTION INS.,    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
 
 
51108.30 51402.30 52205 52204
 
Claimant with proven diagnosis of depression sought to attribute the 
 
condition to nuisance dust exposure at his place of employment.  While 
 
the evidence showed a possibility of exposure exceeding OSHA standards, 
 
the evidence failed to show that such exposure caused any health 
 
impairment.  A long interval of time between the claimant's termination 
 
of employment and onset of medical care rendered the likelihood of 
 
causation remote for a sinusitis condition.  The claimant alleged that 
 
the sinusitis condition caused him to develop depression.  The 
 
claimant's evidence was found to be unconvincing.
 
 
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            EARL S. KEENER,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 969789
 
            HARRETT CORPORATION,     
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            GREAT WEST CASUALTY COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Earl S. 
 
            Keener, claimant, against Harrett Corporation, employer and 
 
            Great West Casualty Company, insurance carrier, for benefits 
 
            as the result of an injury which occurred on November 19, 
 
            1990.  A hearing was held in Des Moines, Iowa, on June 1, 
 
            1993, and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Greg S. Noble.  
 
            Defendants were represented by Terrance D. Brown.  The 
 
            hearing, which was scheduled for six hours, actually 
 
            consumed approximately 12 hours, and generated a 445 page 
 
            transcript.  The record consists of the testimony of Earl S. 
 
            Keener, claimant, Linda Keener, claimant's wife, Roger 
 
            Marquardt, vocational rehabilitation consultant, Michael J. 
 
            Taylor, M.D., a board certified psychiatrist, Kent Jayne, a 
 
            vocational rehabilitation consultant, and Glen McCravy, 
 
            vice-president of risk management, claimant's exhibit's 1 
 
            through 3, exhibit 5 (a video), exhibits 6 through 21, 27, 
 
            28 and 36, and defendants' exhibits F, G, H, I, K, M, V 
 
            (surveillance video), W (surveillance video), X 
 
            (surveillance video), and exhibits LL, MM, and NN.  Martha 
 
            Eschliman, defendants' workers compensation claim 
 
            administrator, was also present in the courtroom at the time 
 
            of the hearing.  The deputy ordered a transcript of the 
 
            hearing.  Both attorneys submitted outstanding post-hearing 
 
            briefs.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant is entitled to temporary disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which he is entitled to include whether claimant is entitled 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to pain management treatment and a running award of 
 
            temporary disability benefits; 
 
            
 
                 Whether the injury of November 19, 1990 was the cause 
 
            of permanent disability to include a mental depression 
 
            caused by a scheduled member injury;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which he is entitled, to include whether claimant sustained 
 
            an injury to a scheduled member or members or whether 
 
            claimant sustained an injury to the body as a whole, to 
 
            include whether claimant is an odd-lot employee;
 
            
 
                 Whether claimant is entitled to medical benefits; and
 
            
 
                 Whether claimant is entitled to penalty benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                   entitlement to temporary disability benefits
 
            
 
                 It is determined that claimant is entitled to 53.857 
 
            weeks of temporary (healing period) disability benefits for 
 
            the period from November 19, 1990, the date of the injury to 
 
            December 1, 1991, the date on which the treating orthopedic 
 
            surgeon stated that claimant could return to his usual 
 
            employment as a truck driver (Exhibit K, pp. 13-15).  Iowa 
 
            Code section 85.34(1).  
 
            
 
                 After the accident, claimant's left tibial plateau 
 
            fracture was repaired by Jay L. Levin, M.D., with a metal 
 
            plate and ten metal screws.  The right arm was immobilized 
 
            by a sling to promote the healing of the a nondisplaced 
 
            fracture of the right scapula (Ex. K, p. 1).
 
            
 
                 Claimant returned home to Ashland, Ohio and was then 
 
            treated by Stephen Yoder, M.D., an orthopedic surgeon.  Dr. 
 
            Yoder ordered a right shoulder arthrogram on January 28, 
 
            1991 and it was negative for a rotator cuff tear (Ex. 6, p. 
 
            7).  A bone scan of the right shoulder ordered by Dr. Yoder 
 
            on February 6, 1991 was essentially normal but the bone scan 
 
            of the left knee was abnormal.  The radiologist reported 
 
            "Slightly abnormal uptake of the radionuclide in the right 
 
            shoulder." (Ex. 6, p. 9).  The bone scan of the left knee on 
 
            the same date disclosed "Diffuse abnormal uptake of the 
 
            radionuclide in the left knee and left ankle." (Ex. 6, p. 9) 
 
            (emphasis supplied).  
 
            
 
                 Claimant became unhappy with Dr. Yoder because he did 
 
            not feel that he was improving under his care and the 
 
            insurance carrier transferred claimant's care to another 
 
            orthopedic surgeon, Richard F. Rose, M.D., who first saw 
 
            claimant on April 1, 1991.  
 
            
 
                 Defendants emphasized, and claimant admitted at the 
 
            hearing, that in his deposition claimant described Dr. 
 
            Yoder, who is a board certified orthopedic surgeon, as a 
 
            "fruitcake" and a "nut". (Tran. p. 155).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Dr. Rose stated that the open reduction and internal 
 
            fixation of the left tibia with a long plate and screws 
 
            produced excellent alignment.  He added that x-rays of the 
 
            scapula fracture showed that it was stable.  Dr. Rose 
 
            commented that the shoulder was not injured, only the 
 
            scapula.  Claimant continued to complain of pain in his left 
 
            knee and discomfort in his right shoulder (Ex. K, p. 6).  
 
            
 
                 On May 5, 1991, Dr. Rose performed an arthroscropic 
 
            surgery on the left knee.  He also removed three of the 
 
            screws in claimant's left knee because one of them was 
 
            protruding.  It was believed that this was causing 
 
            claimant's left knee pain at this time.  
 
            
 
                 While anaesthetized Dr. Rose put claimant's right arm 
 
            and shoulder through a full range of motion and stated that 
 
            there was no impingement in the right shoulder or any 
 
            adhesive capsulitis (E. K, pp. 5 & 6).  Dr. Rose said that 
 
            once the screws were taken out that claimant should have no 
 
            more pain in his left knee (Ex. K, p. 4).  Dr. Rose said 
 
            that claimant's continued complaints about his right 
 
            shoulder were so "varied and extreme" that Dr. Rose referred 
 
            claimant to a shoulder specialist for evaluation (Ex. K, p. 
 
            5).
 
            
 
                 Claimant saw Robert Bell, M.D., an orthopedic surgeon 
 
            and shoulder specialist on September 17, 1991.  Dr. Bell 
 
            ordered an arthrogram of the right shoulder on October 2, 
 
            1991.  It showed no evidence of a rotator cuff tear but it 
 
            did show some degenerative spurring of the acromioclavicular 
 
            joint (Ex. 7, p. 1).  Dr. Rose said that claimant's fracture 
 
            was to the body of the scapula and not in the 
 
            acromioclavicular joint.  Dr. Bell said that he had no 
 
            explanation for the tenderness, discomfort, pain, auditory 
 
            disturbances in claimant's right ear, paresthesias in his 
 
            right arm and paraspinal spasms in claimant's lumbosacral 
 
            spine.  Dr. Bell said he did not know of anything he could 
 
            do for claimant.  He recommended against surgery.  Dr. Bell 
 
            concluded, "It is difficult to piece all these together but 
 
            I think it best that I not do anything surgically with him." 
 
            (Ex. M, p. 5).  
 
            
 
                 The notes of Dr. Rose show that he discussed Dr. Bell's 
 
            examination of claimant with Dr. Bell on September 24, 1991 
 
            and that possible pain management and possible malingering 
 
            were discussed (Ex. K, p. 5).
 
            
 
                 Defendants emphasized that Dr. Rose noted that claimant 
 
            strenuously resisted his examination of his right shoulder 
 
            and that the doctor told claimant "... if he used as much 
 
            strength on his therapy as he does to resist my exam, he 
 
            would be probably doing better." (Ex. K, p. 4). 
 
            
 
                 On August 29, 1991, Glen McCravy, vice-president of 
 
            insurance and safety, wrote to Dr. Rose to find out if 
 
            claimant could drive a truck or perform light duty work in 
 
            the shop on trailers.  He included job descriptions of each 
 
            job (Ex. K, pp. 9 & 10).  Dr. Rose responded on September 
 
            10, 1991 that he recommended against heavy work due to the 
 
            right shoulder complaints but that eventually claimant would 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            have a good shoulder.  He mentioned that claimant had been 
 
            referred to Dr. Bell for an evaluation of his right 
 
            shoulder.  Because of the undetermined status of the right 
 
            shoulder, Dr. Rose recommended that claimant perform light 
 
            duty in the trailer shop as good therapy for his shoulder 
 
            until he regains full strength and pain-free motion of his 
 
            right shoulder (Ex. K, p. 12).
 
            
 
                 Light work is not equated to medically capable of 
 
            returning to substantially similar employment when that 
 
            employment involved heavy work.  McCravy's description of 
 
            claimant's job as a truck driver involved heavy work (Ex. K, 
 
            p. 10).
 
            
 
                 No doctor had issued a permanent impairment rating.  
 
            Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 
 
            (Ia. Ct. App. 1984); Lowe v. Iowa State Penitentiary, file 
 
            number 776977 (App. Decn., December 16, 1988); Schutt v. 
 
            Riverside Book and Bible, file number 666100 
 
            (Review-Reopening Decn., January 22, 1990).
 
            
 
                 Claimant was still being actively treated.  Armstrong 
 
            Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 
 
            (1981); Keifer v. Iowa Public Service Company, file no. 
 
            830461 (Arb. Decn. June 27, 1991) Keifer is a final 
 
            decision.
 
            
 
                 Furthermore, there is no duty on the part of the 
 
            employee to return to light duty work or work with 
 
            restrictions, nor is there any obligation on the part of an 
 
            injured employee to seek out the employer and attempt to 
 
            return to light duty work or work with restrictions.  If 
 
            either the employer or insurance carrier wish to mitigate 
 
            the amount of workers' compensation benefits which they 
 
            rightfully owe for the full period of temporary disability 
 
            recovery, then the burden is on defendants to obtain a 
 
            release to return to work light duty or with restrictions 
 
            and then seek out the employee and make an offer of light 
 
            duty work or work within the doctor's restrictions.  Morris 
 
            v. Mike Brooks, Inc., file number 891286, filed July 12, 
 
            1991 and affirmed by the industrial commissioner in a short 
 
            form affirmance on August 27, 1992.  This holding also is 
 
            compatible with Iowa Code section 85.33(2)(3)(4) with 
 
            respect to temporary partial disability.  This statement of 
 
            the law is further supported by Helmle v. Beatrice Cheese, 
 
            Inc., file no. 918749 (Arb. Decn. November 27, 1991).
 
            
 
                 Furthermore, the industrial commissioner has determined 
 
            that temporary disability is not terminated even when the 
 
            employer offers light duty work to the employee which the 
 
            employee declines.  Webb v. Lovejoy Construction Co., II 
 
            Iowa Industrial Commissioner Report 430, 441 (Appeal Decn. 
 
            1981).
 
            
 
                 On November 27, 1991, Dr. Rose wrote to the vocational 
 
            rehabilitation case manager that with respect to claimant's 
 
            left knee, 
 
            
 
                    He has since gone on to make a complete 
 
                 recovery from the knee problem.  He has a good 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 knee and I don't anticipate him having any further 
 
                 problems or disability involving the left knee.  I 
 
                 think that he can return to work without any 
 
                 limitations for use of the left knee (Ex. K, p. 
 
                 13).
 
            
 
                 On November 27, 1991, with regard to claimant's right 
 
            shoulder, Dr. Rose wrote the following.
 
            
 
                    The second problem is his right shoulder.  He 
 
                 sustained a minor fracture of the right scapula.  
 
                 He, subsequently, had persistent pain in the 
 
                 shoulder and this was treated with physical 
 
                 therapy and anti-inflammatory medication.  His 
 
                 progress was poor.  He was seen by a shoulder 
 
                 specialist, Dr. Robert Bell, who performed an 
 
                 arthrogram of the right shoulder to rule out the 
 
                 possibility of any rotator cuff or intra articular 
 
                 problems.  The shoulder arthrogram was normal.  
 
                 The advice of Dr. Bell was that time alone would 
 
                 cure this and that he did not require any further 
 
                 physical therapy.  I feel that he has healed the 
 
                 fracture of the right scapula.  The present pain 
 
                 that he is having is secondary to disuse atrophy, 
 
                 but that there is no significant pathology in the 
 
                 right shoulder.  I believe that there is no 
 
                 permanent disability related to this right 
 
                 shoulder.  I believe that he has obtained 80% of 
 
                 his maximum medical return.  I do feel that he has 
 
                 made a significant return due the fact that he is 
 
                 able to paint and used a jackhammer at home during 
 
                 the summer of 1991.  I do not feel that he has 
 
                 obtained maximum medical improvement on the right 
 
                 shoulder, but I think that he definitely will some 
 
                 time in the near future.  I think this can be 
 
                 greatly aided by his performing the exercises that 
 
                 he was taught in physical therapy (Ex. K, pp. 13 & 
 
                 14).
 
            
 
                 On November 27, 1991, with respect to claimant's 
 
            ability to return to work, Dr. Rose reported as follows.
 
            
 
                    In regards to your fourth question regarding 
 
                 when I anticipate he'll return to his job as a 
 
                 truckdriver on a fulltime basis, I feel that he is 
 
                 physically able to drive a truck, I think that 
 
                 there is a tremendous problem with patient 
 
                 cooperation and that this may make it difficult 
 
                 for him to return right now.  The fact that he is 
 
                 able to paint and use a jackhammer at home 
 
                 suggests that he has the physical capacity to 
 
                 return to his job as a truckdriver.  The fact that 
 
                 he is able to walk three miles a day, by history, 
 
                 indicates that the knee has fully recovered enough 
 
                 to enable him to return to work.  I think that he 
 
                 has no permanent disability related to either his 
 
                 knee or his shoulder problem.  I believe that he 
 
                 has made a complete maximum medical improvement 
 
                 for the left knee and an 80% recovery from the 
 
                 right shoulder.  I feel that in the next two 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 months he should certainly resolve the right 
 
                 shoulder problem.  I feel that by history he has 
 
                 made the complete improvement of both shoulder and 
 
                 knee, but that patient cooperation has been an 
 
                 exceedingly frustration problem in his recovery.  
 
                 I feel that there is no problem in his returning 
 
                 to his work as a truckdriver at the begining [sic] 
 
                 of December 1991.  I believe that he will do no 
 
                 harm to the shoulder by returning to his work as a 
 
                 truckdriver (Ex. K, pp. 14 & 15).
 
            
 
                 Whether temporary disability is to be terminated 
 
            pursuant to Iowa Code section 85.33(1) in the case of where 
 
            there is no permanent disability, or whether it is to be 
 
            terminated pursuant to Iowa Code section 85.34(1) in the 
 
            case of where there is permanent disability, in either case, 
 
            temporary disability terminates when it is determined that 
 
            the employee is "medically capable of returning to 
 
            employment substantially similar to the employment in which 
 
            the employee was engaged at the time of the injury..."  
 
            Thus, on November 27, 1991, even though claimant had not in 
 
            fact returned to work, and even though claimant had not 
 
            attained maximum medical improvement, nevertheless, Dr. Rose 
 
            said that he was able to perform his old job as a truck 
 
            driver.  Therefore defendants have proven that claimant was 
 
            medically capable of returning to substantially similar 
 
            employment at that time. 
 
            
 
                 Therefore, it is determined that claimant is entitled 
 
            to 53.857 weeks of temporary disability benefits for the 
 
            period from November 19, 1990, the date of the injury, until 
 
            December 1, 1991, the date on which Dr. Rose, the treating 
 
            orthopedic surgeon, determined that claimant could return to 
 
            driving a truck again.  
 
            
 
                 Claimant contends that he was and is entitled to pain 
 
            management treatment and is entitled a running award of 
 
            temporary disability benefits.  However, when Dr. Rose and 
 
            Dr. Bell considered pain management treatment, they also 
 
            considered whether claimant was malingering, according to 
 
            the notes of Dr. Rose on September 24, 1991, and after this 
 
            discussion neither Dr. Rose nor Dr. Bell either considered 
 
            or recommended pain management treatment (Ex. K, p. 5).  On 
 
            the contrary, Dr. Bell said that there was nothing more that 
 
            he could do for claimant.  Dr. Rose said that Dr. Bell said 
 
            that the only remedy was the passage of time (Ex. K. p. 13).  
 
            Dr. Rose said in his final report of November 27, 1991 that 
 
            claimant was fully recovered, or that his shoulder would be 
 
            fully recovered in a couple of months (Ex. K, p. 14).
 
            
 
                 Subsequent to the treatment of Dr. Rose and Dr. Bell, 
 
            other physicians, primarily Roger Snyder, M.D., claimant's 
 
            family physician and other medical care providers that Dr. 
 
            Snyder referred claimant to, recommended pain management.  
 
            However, these recommendations were based on the subjective 
 
            symptoms and complaints that claimant related to these 
 
            persons rather than objective medical tests or other 
 
            objective evidence of incapacitating pain.  Furthermore, it 
 
            will be demonstrated later that Dr. Snyder and these other 
 
            medical care providers were not provided with a complete 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            history of claimant with respect to his previous mental 
 
            depression and also their opinions are discredited by 
 
            defendants' videos of claimant performing manual labor which 
 
            is inconsistent with the condition that claimant related to 
 
            these medical providers.  Michael J. Taylor, M.D., a board 
 
            certified psychiatrist, and Kent Jayne, MA, CRC, ABVE, 
 
            defendant's vocational rehabilitation specialist, testified 
 
            that the work claimant performed in the videos was totally 
 
            inconsistent with the subjective symptoms and complaints 
 
            that he related to these other medical providers.  Even Dr. 
 
            Ward, claimant's board certified independent evaluating 
 
            orthopedic surgeon did not recommend pain management (Exs. 9 
 
            & 21).  Wherefore, it is determined that claimant is not 
 
            entitled to additional healing period benefits for the 
 
            purpose of obtaining pain management treatment, nor is 
 
            claimant entitled to a running award of temporary disability 
 
            benefits as contended by claimant on the basis that he has 
 
            not received reasonable medical treatment pursuant to Iowa 
 
            Code section 85.27.
 
            
 
                causal connection/entitlement/permanent disability
 
            
 
                 It is determined that the injury to claimant's left 
 
            knee is an injury to a scheduled member and that the injury 
 
            to claimant's right scapula is an injury to the body as a 
 
            whole.  
 
            
 
                 It is further determined that the injury to the left 
 
            knee was the cause of permanent disability and that the 
 
            injury to the right scapula was not the cause of permanent 
 
            disability.  
 
            
 
                 It is determined that claimant has sustained a 15 
 
            percent permanent impairment to his left leg because of the 
 
            injury to his left knee and that claimant is entitled to 33 
 
            weeks of permanent partial disability benefits. 
 
            
 
                 It is further determined that the left knee and right 
 
            scapula injury of November 19, 1990 was not the cause of 
 
            mental depression; and therefore claimant has not sustained 
 
            an injury to the body as a whole for that reason and he is 
 
            not entitled to industrial disability benefits for that 
 
            reason.
 
            
 
                 As previously mentioned, Dr. Rose, the treating 
 
            orthopedic surgeon, determined that claimant had (1) 
 
            achieved a complete recovery of his left knee and (2) a 
 
            nearly complete recovery of his right scapula and (3) that 
 
            there was no permanent disability in either the left knee or 
 
            the right scapula and (4) that claimant could return to work 
 
            as a truck driver without any permanent restrictions or 
 
            limitations (Ex. K, pp. 13-15).  It is noted that even 
 
            though Dr. Rose gave a final evaluation on November 27, 
 
            1991, he had not actually seen claimant since his last 
 
            office visit on September 24, 1991, a period of two months 
 
            (Ex. K, pp. 5 & 14).
 
            
 
                 Five days after the November 27, 1991 letter of Dr. 
 
            Rose, claimant then saw his family physician, Dr. Snyder for 
 
            the very first time for this injury for a "disability 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            evaluation."  In the course of his treatment with Dr. Snyder 
 
            the doctor mentions several subjective pain complaints and 
 
            several subjective limitations of claimant's left leg and 
 
            right shoulder as well as other parts of his body.  There is 
 
            no evidence that Dr. Snyder performed any objective tests or 
 
            reviewed any of the objective tests that had previously been 
 
            performed by Dr. Levin, Dr. Yoder, Dr. Rose or Dr. Bell.  
 
            Dr. Snyder diagnosed myofascial pain syndrome and later 
 
            described it as post-traumatic fibrositus and fibromyalgia 
 
            syndrome.  Dr. Snyder considered claimant to be permanently 
 
            and totally disabled from his previous employment, at his 
 
            first examination of claimant (Ex. 3, pp. 1-21).  On March 
 
            5, 1992, Dr. Snyder determined that claimant was 
 
            "unemployable." (Ex. 3, p. 15).  On November 12, 1992, Dr. 
 
            Snyder said claimant was totally disabled (Ex. 3, p. 20).  
 
            On November 18, 1993, he said he hoped it was not permanent 
 
            (Ex. 3, p. 21).  Even after Dr. Snyder viewed the videos he 
 
            declined to change his opinion.
 
            
 
                 Claimant attempted a work evaluation program for entry 
 
            into a rehabilitation program on March 16, 1992 but due to 
 
            his inability to persist in the exercises for the required 
 
            length of time he was sent home after two and one-half days 
 
            (Ex. 16, pp. 1-4).  
 
            
 
                 On May 18, 1992, Ernie Andrews, Ph.D, a psychologist, 
 
            evaluated claimant and completed an MMPI-2 profile and 
 
            determined that claimant was mentally disabled and that his 
 
            mental disability was caused by this injury (Ex. 8, pp. 9 & 
 
            10).  
 
            
 
                 On June 29, 1992, claimant was examined by Ronald M. 
 
            Yarab, M.D., at the request of Dr. Snyder, for complaints of 
 
            migrating numbness in his face and arm, myofascial symptoms 
 
            in his neck, shoulders and back and sleep disturbance.  Dr. 
 
            Yarab attempted to perform an EMG but claimant did not 
 
            permit him to complete the examination.  Dr. Yarab 
 
            recommended a CT scan of the head (Ex. 10, pp. 1 & 2).  Also 
 
            on June 29, 1992, claimant was examined by Jeff Strakowski, 
 
            M.D., who found "Significant pain behavior and guarding of 
 
            right shoulder but essentially full ROM when done carefully.  
 
            Normal joint ROM elsewhere including low back and left 
 
            knee." (Ex. 17, p. 1).  
 
            
 
                 On July 3, 1992, William B. Schonberg, Ph.D., a 
 
            psychologist, interviewed and tested claimant.  He recorded 
 
            several subjective complaints such as (1) pain throughout 
 
            his body producing discomfort, frustration and anger, (2) 
 
            limited movement and ability to stand, sit, walk, bend and 
 
            lift, (3) difficulty swallowing, (4) limited vision, (5) 
 
            sleep disturbance, (6) low energy level, (7) feelings of 
 
            being unhappy, frustrated, angry, hopeless, helpless, 
 
            worthless and down in the dumps.  Dr. Schonberg performed an 
 
            MMPI-2 as well as other tests.  He found that claimant had 
 
            psychological factors affecting his physical condition and 
 
            recommended that he not try to return to work before the 
 
            completion of psychotherapy (Ex. 12, pp. 1-6).  
 
            
 
                 On July 21, 1992, claimant was examined by Richard 
 
            Ward, M.D, a board certified orthopedic surgeon.  Dr. Ward 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            examined both old and new x-rays and found no abnormalities.  
 
            Based on claimant's information and the range of motion that 
 
            claimant demonstrated to him at that time he determined that 
 
            claimant had a permanent partial disability of 30 percent 
 
            (Ex. 9, pp. 1-3).  Unfortunately, however, Dr. Ward did not 
 
            identify what was disabled, the left knee, the right scapula 
 
            or the other parts of his body claimant complained about.  
 
            Dr. Ward did not identify whether this was an impairment to 
 
            one or more scheduled members or whether it was to the body 
 
            as a whole or some combination of all of these factors.  Dr. 
 
            Ward felt that the left knee would preclude claimant from a 
 
            job that would require him to walk a lot or to be on his 
 
            feet a lot (Ex. 9, p. 3).  It is noted that this was a one 
 
            time evaluation for the purposes of litigation which was 
 
            addressed to claimant's counsel.
 
            
 
                 Dr Ward did not state that claimant was precluded from 
 
            returning to work as a truck driver or that he had any 
 
            permanent restrictions (Ex. 9).  Dr. Ward found that there 
 
            was one inch of atrophy in the left thigh compared to the 
 
            right but did not say what caused it (Ex. 9, p. 2).
 
            
 
                 On September 24, 1992, claimant was evaluated by Roger 
 
            Marquardt, CRC, CIRS, a vocational rehabilitation consultant 
 
            who determined that claimant could only perform sedentary 
 
            activity (Ex. 11, pp. 1-4).  On March 30, 1993, after 
 
            Marquardt had reviewed the videos he stated "... Earl Keener 
 
            cannot competitively perform any work activity as it would 
 
            normally be performed for pay or profit." (Ex. 11, p. 6).  
 
            
 
                 On October 5, 1992, George W. Waylonis, M.D., director 
 
            of physical medicine and  rehabilitation at the Riverside 
 
            Methodist Hospital wrote to Dr. Snyder.  He recommended (1) 
 
            a CT scan of the brain, (2) that claimant stop excessive use 
 
            of medications and switch to Tylenol, (3) that claimant 
 
            continue an exercise program and (4) that further 
 
            consideration be given to a pain management program.  Dr. 
 
            Waylonis stated that claimant had all of the features of a 
 
            post-traumatic myofascial pain syndrome (Ex. 19).  
 
            
 
                 On October 12, 1992, Dr. Taylor, a board certified 
 
            psychiatrist, said that based on the reports of Dr. Andrews 
 
            and Dr. Schonberg, that he, Dr. Taylor, concluded that 
 
            claimant was suffering from a major depressive disorder.  
 
            Dr. Taylor recommended anti-depressive medications rather 
 
            than psychotherapy (Ex. 13, pp. 1 & 2).  
 
            
 
                 Linda Sullivan, a rehabilitation counselor with the 
 
            Ohio Rehabilitation Services, viewed the videos and 
 
            concluded on March 23, 1993 that they did not change her 
 
            opinion that claimant is not capable of competitive 
 
            employment.  She did not believe that claimant could work 
 
            eight hours a day and five days a week (Ex. 18, pp. 1 & 2).
 
            
 
                 On February 9, 1993, Dr. Taylor issued a new report.  
 
            He stated that he had reviewed all of the evidence in this 
 
            case and after reviewing the videos he recanted his opinion 
 
            that claimant was suffering from a major depressive disorder 
 
            (Ex. F).  He further testified that the activities he 
 
            observed on the videos were wholly inconsistent with the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            information claimant provided to all of the above mentioned 
 
            health care providers after claimant saw Dr. Snyder on 
 
            December 5, 1991.  
 
            
 
                 Dr. Taylor said that claimant demonstrated a full range 
 
            of motion in his right shoulder, elbow and wrist while 
 
            painting a shed as well as good grip strength to hold the 
 
            brush and to extend his arm for long periods of time.  He 
 
            said claimant stood firmly, bore weight on both legs, 
 
            painted surfaces well over his head and did not demonstrate 
 
            the slightest pain or discomfort (Ex. F, p. 1).  The doctor 
 
            said that claimant lifted bags of cement or gravel with both 
 
            hands and arms, mixed mortar with both hands and arms, 
 
            pounded with a hammer in his right hand and dug with a 
 
            shovel using both arms.  He said that claimant was able to 
 
            climb in and out of the covered pickup truck with a topper 
 
            on it to unload sand or gravel which required stooping, 
 
            bending and lifting.  He said that claimant could arise from 
 
            a sitting position on a concrete block with ease and with no 
 
            apparent discomfort.  He said claimant performed heavy 
 
            physical labor (Ex. F, p. 2).  Claimant testified that the 
 
            bags contained sawdust and that he over-medicated himself in 
 
            order to paint the shed.
 
            
 
                 Dr. Taylor testified that both MMPIs demonstrated that 
 
            claimant had a tendency to exaggerate his physical symptoms 
 
            which called claimant's credibility into question.  He 
 
            testified that neither of claimant's MMPI tests were 
 
            consistent with the major depressive disorder.  Dr. Taylor 
 
            wrote, "I think that it would be extremely difficult for any 
 
            clinician to arrive at any accurate assessment of Mr. 
 
            Keener's current condition based solely on information 
 
            provided to that clinician by Mr. Keener." (Ex. F, p. 3).
 
            
 
                 Dr. Snyder relied entirely on the information related 
 
            to him by claimant as did the other physicians, 
 
            psychologists, vocational rehabilitation persons and 
 
            therapists who saw claimant after Dr. Snyder.  Dr. Ward's 
 
            x-rays were normal.  He too relied on claimant's subjective 
 
            information and demonstrated ability to move his shoulder.
 
            
 
                 Dr. Taylor dogmatically stated, "He clearly was not 
 
            'permanently disabled'." (Ex. F, p. 2).  
 
            
 
                 Dr. Taylor concluded,
 
            
 
                    As a medical doctor, who has evaluated a number 
 
                 of Workers'' Compensation Claimants and reviewed a 
 
                 number of physical therapy evaluations, range of 
 
                 motion evaluations, etc., it is my opinion that, 
 
                 aside from his limp, which is probably indicative 
 
                 of the difficulties that he has in his left knee, 
 
                 there was no limitation of range of motion of his 
 
                 left or right upper extremity, or his right lower 
 
                 extremity.  It is difficult for me to assess the 
 
                 limitations, if any, of his left lower extremity.  
 
                 The facility with which he climbed into his pickup 
 
                 truck, spread gravel around with both legs, arose 
 
                 from a sitting position very low to the ground 
 
                 without difficulty, all lead me to believe that 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 any deficits in the left lower extremity would be 
 
                 minimal (Ex. F, p. 3).
 
            
 
                 Kent A. Jayne, a vocational rehabilitation consultant, 
 
            examined all or most of the evidence in this case and 
 
            prepared a report on February 3, 1993.  He too found that 
 
            claimant's report of his pain and symptoms to the medical 
 
            providers were inconsistent with the videos which showed 
 
            claimant performing extensive manual labor functions.  Jayne 
 
            visited employer's place of business and made an 
 
            investigation and concluded that claimant was capable of 
 
            driving the truck he examined.  In addition he found that 
 
            accommodations could be made to make it possible for 
 
            claimant to drive a truck such as (1) drop and pick loads, 
 
            (2) air assisted push button clutch and (3) an air ride 
 
            seat.  Jayne concluded that claimant was employable in the 
 
            open labor market given his current capacities and adequate 
 
            motivation (Ex. H & I).  
 
            
 
                 Dr. Taylor also testified extensively at the hearing.  
 
            Among other things he testified as follows,
 
            
 
                    Q.  On the basis of that videotape can you tell 
 
                 me whether you reached an opinion as to whether or 
 
                 not the activities displayed by Mr. Keener were 
 
                 consistent or inconsistent with the information 
 
                 contained in his medical records, primarily those 
 
                 of Doctor Snyder?
 
            
 
                    A.  The activities that he showed -- that he 
 
                 demonstrated himself to be capable of in that 
 
                 videotape were wholly inconsistent with the 
 
                 limitations and complaints described in his 
 
                 complaints to Doctor Snyder and in his answers to 
 
                 interrogatories (Tran. p. 284)
 
            
 
                 The psychiatrist testified that claimant's complaints 
 
            were subjective, which means they were unverifiable and 
 
            unmeasurable whereas the videos would be considered 
 
            objective information (Tran. p. 287).
 
            
 
                 At the hearing Dr. Taylor described several parts of 
 
            the videos where claimant performed work with his right 
 
            shoulder and left knee that demonstrated his actual ability 
 
            was inconsistent with the complaints and symptoms that he 
 
            had reported to the doctors, psychologists and 
 
            rehabilitation specialists.  Dr. Taylor testified, "It was 
 
            my opinion that the activities shown on the videotape were 
 
            very inconsistent with his complaints to his doctors." 
 
            (Tran. pp. 291 & 292).
 
            
 
                 He also stated the videos contradicted the statements 
 
            which claimant made in his interrogatories (Tran. pp. 
 
            296-298).  At the same time Dr. Taylor confirmed that 
 
            claimant's limp was consistent in all of the videos and it 
 
            would confirm claimant's allegation that he can nor longer 
 
            run or jog (Tran. p. 305).  
 
            
 
                 Scott Gratias testified by deposition on May 21, 1993 
 
            that he surveilled Claimant's activities on October 27, 1992 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            and observed and videotaped claimant unload, empty and 
 
            spread several bags of what appeared to be gravel with both 
 
            legs and feet and both arms and hands without any apparent 
 
            impairment or difficulty.  He indicated claimant entered and 
 
            exited the back of the covered pickup without apparent 
 
            difficulty.
 
            
 
                 Gratias testified that on October 28, 1992 he 
 
            personally observed and videotaped claimant go to a wood 
 
            store and pick up a load of lumber materials, drive to a 
 
            construction site and worked for approximately four and 
 
            one-half to five hours.  He said he saw claimant carry, 
 
            hammer and chisel concrete blocks.  He said he saw him carry 
 
            trim boards.  He said he saw claimant mix cement with a hoe.  
 
            He said he saw claimant use two different saws to cut 
 
            boards.  He said he saw him use a shovel.  He said he saw 
 
            claimant use a power drill.  The witness said claimant 
 
            performed all of these activities with both upper 
 
            extremities and it did not appear to the witness that 
 
            claimant experienced any difficulty in the use of his right 
 
            hand, arm or shoulder.  He also acknowledged that claimant 
 
            did walk with a limp.  He said he saw claimant bend over, 
 
            squat and kneel down on several occasions without apparent 
 
            difficulty.  He testified that he also saw and videotaped 
 
            claimant mowing his yard with a riding mower on October 29, 
 
            1992 (Ex. LL).
 
            
 
                 Mike Mazza testified by deposition on May 18, 1993 that 
 
            he observed and video taped claimant on May 22, 1992 
 
            standing on a step ladder and painting a shed for 
 
            approximately an hour with his right hand and arm without 
 
            any apparent difficulty.  He related that claimant walked 
 
            with a definite limp all of the time (Ex. MM).
 
            
 
                 Claimant's video of a healthy person performing his job 
 
            and his comparative inability to perform it had little 
 
            probative value (Ex. 5).
 
            
 
                 Dr. Taylor testified that the MMPI of Dr. Andrews was 
 
            invalid because claimant exaggerated his answers to the 
 
            questions which were asked.  He described claimant's answers 
 
            to the questions as "fake bad." (Tran. p. 10).  Dr. Taylor 
 
            also found the answers to the MMPI administered by Dr. 
 
            Schonberg as an attempt to exaggerate.  Dr. Schonberg 
 
            thought that claimant exaggerated the answers (Tran. p. 
 
            312).  Dr. Taylor indicated that the opinions of the other 
 
            clinicians were impaired because they were not based upon 
 
            reliable information.  Dr. Taylor testified,
 
            
 
                    Q.  Could you tell the Court why you believe 
 
                 that to be so?
 
            
 
                    A.  Because it's important to have accurate, 
 
                 objective, valid information, and based upon the 
 
                 information that Mr. Keener has given to various 
 
                 clinicians as opposed to what I have observed him 
 
                 doing on those videotapes the information that he 
 
                 has given to clinicians has not been accurate, 
 
                 objective or valid (Tran. pp. 312 & 313).
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Dr. Taylor testified that the reason he recanted from 
 
            his earlier opinion that claimant was suffering from a major 
 
            depressive disorder was his review of the raw data from a 
 
            psychological testing and his review of the video tapes 
 
            (Tran. p. 319).  
 
            
 
                 Dr. Taylor said that his interpretation of the MMPI 
 
            was, "Not in the pattern that we would expect with 
 
            depression, with major depressive disorder, no." (Tran. p. 
 
            330).
 
            
 
                 Kent Jayne testified at the hearing that "My opinion in 
 
            viewing the tapes that were provided, specifically the tapes 
 
            in May of 1992 and October of 1992, would appear to be 
 
            inconsistent with the doctors' reports that were issued 
 
            around those same times." (Tran. p. 336).  Jayne added that 
 
            based upon the work behaviors he observed on the video tapes 
 
            that claimant was employable and "To be conservative, yes, I 
 
            did form an opinion and that opinion is that I believe he's 
 
            capable of a light-medium category of work, somewhere 
 
            between light and medium." (Tran. p. 344 & 345).
 
            
 
                 The opinion of Dr. Taylor and Kent Jayne are more 
 
            realistic than the opinions of Dr. Snyder, Dr. Andrews, Dr. 
 
            Yarab, Dr. Schonberg, Dr. Waylonis and Roger Marquardt.  
 
            Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985).  The weight to be given expert testimony 
 
            may be affected by the completeness of the premise given the 
 
            expert and the surrounding circumstances.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
            Furthermore, the fact that Dr. Taylor is a board certified 
 
            psychiatrist since 1976 may accord his testimony greater 
 
            weight, particularly on the subject of mental depression, 
 
            than a family physician, orthopedic doctors, and 
 
            psychologists.  Reiland v. Palco, Inc., Thirty-second 
 
            Biennial Report of the Industrial Commissioner 56 (1975); 
 
            Dickey v. ITT Continental Baking Co., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 89 (1979).  
 
            This deputy, who also viewed all of the video tapes from 
 
            beginning to end, is also forced to concur that the video 
 
            tapes were not reconcilable with the symptomatology that 
 
            claimant related to these various doctors and therapists.  
 
            
 
                 Defendants' counsel impeached claimant's credibility on 
 
            several points (Tran. pp. 120-187).  Notably, claimant 
 
            failed to tell Dr. Andrews and Dr. Schonberg that he had 
 
            received prior counseling, and had been treated for 
 
            depression with Norpramin for several years starting in 1976 
 
            through at least 1987 (Tran. pp. 120-141).  Claimant 
 
            contended that he had difficulty readjusting after service 
 
            in Vietnam, that he was high-strung, and that the Norpramin 
 
            was prescribed to help him control his temper.  However, 
 
            these contentions were not supported by the medical records 
 
            introduced into evidence.
 
            
 
                 Claimant admitted that he took Norpramin after his 
 
            discharge from the military service in 1971 (Tran. pp. 
 
            124-127).  Defendants alleged that it was for depression and 
 
            claimant contended it was for his bad temper.  Claimant 
 
            admitted that he was taking Norpramin in 1976 and that he 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            was taking it still in 1987, which is a period of eleven 
 
            years (Tran. pp. 130 & 131).  Claimant admitted that he was 
 
            treated with Norpramin for depressive syndrome in 1982 
 
            intermittently until the Spring of 1985 (Tran. p. 128).  
 
            This treatment is not included in the history given to 
 
            either Dr. Andrews or Dr. Schonberg (Ex. 8 & 12).
 
            
 
                 Claimant acknowledged that he had used a leg brace 
 
            (which was also described as a walking cast), a cane and a 
 
            wheelchair from time to time but that none of these items 
 
            were in evidence where he (1) painted a shed standing on a 
 
            ladder, (2) unloaded large bags from a pickup truck with a 
 
            topper and spread the contents of the bags on the ground, 
 
            (3) picked up a load of lumber at the wood store and engaged 
 
            in a construction project where he carried and broke 
 
            concrete blocks with a hammer, sawed and carried pieces of 
 
            lumber, used a power drill, mixed cement with both hands and 
 
            arms with a hoe, and (4) mowed his yard on a riding mower 
 
            (Tran. pp. 144-153; Exs. V, W & X)).  
 
            
 
                 Defendants' counsel in his post-hearing brief itemizes 
 
            twenty-one separate and distinct points on which he 
 
            impeached claimant's credibility at the time of hearing 
 
            (Defendants' Post-Hearing Brief, pp. 16-21 & 25).  
 
            
 
                 Wherefore, from the foregoing evidence it is determined 
 
            that the injury of November 19, 1990 was the cause of a 
 
            scheduled member injury to the left knee and that the injury 
 
            to the right scapula was an injury to the body as a whole.  
 
            The knee is on the leg side of the hip joint and the scapula 
 
            is on the body side of the shoulder joint.  
 
            
 
                 It is further determined that the weight of the 
 
            evidence did establish that claimant sustained a permanent 
 
            impairment and disability to his left knee but that it did 
 
            not establish that claimant sustained a permanent impairment 
 
            or disability to his right scapula or shoulder.
 
            
 
                 With respect to the scapula, Dr. Rose defined it as a 
 
            "minor fracture." (Ex. K, p. 13).  Two arthrograms were 
 
            negative for any rotator cuff injury or damage.  One of them 
 
            was performed at the request of Dr. Yoder on January 28, 
 
            1991 (Clm. Ex. 6, p. 7), the other one was performed for Dr. 
 
            Bell on October 2, 1991 (Clm. Ex. 7, p. 1).  The bone scan 
 
            of the shoulder ordered by Dr. Yoder on February 6, 1991 was 
 
            only slightly abnormal whereas the bone scan of the left 
 
            knee was diffusely abnormal (Ex. 6, p. 9).  Thus, the left 
 
            knee, has been the worst injury since the very beginning but 
 
            there is no specific evidence of impairment or disability in 
 
            the right scapula or shoulder.
 
            
 
                 With respect to the left knee injury it should be noted 
 
            that claimant fell 13 feet from a load of wallboard and 
 
            fractured the tibial plateau.  The injury required an open 
 
            reduction and internal fixation which required a long metal 
 
            plate and ten metal screws.  The left knee required a second 
 
            arthroscopic surgery to remove three of the screws and trim 
 
            up the wound.  Claimant is still carrying the metal plate 
 
            and seven of the screws in his left tibia.  The videos show 
 
            claimant walking with a limp consistently.  Dr. Taylor took 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            note of this fact that claimant consistently walked with a 
 
            limp and he testified that this corroborated claimant's 
 
            testimony that he could no longer run or jog since this 
 
            injury because of the limp in his left leg.  Therefore, 
 
            there is evidence of permanent impairment and disability in 
 
            the left leg (Tran. p. 305).
 
            
 
                 Dr. Ward found that claimant sustained a 30 percent 
 
            permanent partial disability, but unfortunately he failed to 
 
            specify where the disability was located, whether it was to 
 
            the knee or the scapula, or whether he meant it was a 
 
            scheduled member impairment or an impairment to the body as 
 
            a whole.  Nevertheless, Dr. Ward's report does stand for the 
 
            fact that claimant has a 30 percent disability someplace in 
 
            his opinion.  In the opinion of this deputy the worst injury 
 
            is to the left knee.  When Dr. Ward's assessment of 
 
            disability is considered with all of the evidence in this 
 
            case it is the opinion of this deputy that a substantial 
 
            portion of this disability would be attributable to 
 
            claimant's left knee.  The fracture to the body of the 
 
            scapula was described as non-displaced and was reported by 
 
            Dr. Rose to have healed without further difficulty.  
 
            
 
                 Claimant displayed the wound to his knee at the hearing 
 
            and he was observed by the deputy to walk with a limp.  The 
 
            absence of a functional impairment rating does not preclude 
 
            an award in the case of a scheduled member.  The Iowa 
 
            Administrative Procedure Act, Chapter 17A.14(5) recognizes 
 
            that the agency's experience, technical competence and 
 
            specialized knowledge may be utilized in the evaluation of 
 
            the evidence.  Precedent supports a deputy arriving at a 
 
            determination of impairment after viewing the injured member 
 
            and after seeing and hearing the witness even when there is 
 
            no physician awarded impairment rating.  Walker v. 
 
            Sheller-Globe Corp., Vol. 2, No. 1, State of Iowa Industrial 
 
            Commissioner Decisions page 473 (October 12, 1984); Arce v. 
 
            Sandra Pollock, IV Iowa Industrial Commissioner Reports 14 
 
            (November 8, 1983); Conyers v. Linn-Casler Joint Venture, II 
 
            Iowa Industrial Commissioner Reports 309, (Appeal Decn. Dec. 
 
            12, 1984); Langrehr v. Warren Packaging Corp., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 179, 180 
 
            (January 22, 1980).
 
            
 
                 An award can be based upon the severity of the injury, 
 
            the necessity of surgery or surgeries and the recorded 
 
            continuing symptomatology of claimant, to include that 
 
            disability found to exist in surveillance videos.  Pizza Hut 
 
            of Washington, Inc., v. St. Paul Fire Marine Insurance Co., 
 
            II Iowa Industrial Commissioner Reports 317 (April 16, 
 
            1982).
 
            
 
                 Evidence considered in assessing the loss of use of a 
 
            particular scheduled member may entail more than a medical 
 
            rating pursuant to standardized guides for evaluating 
 
            permanent impairment.  A claimant's testimony and 
 
            demonstrated difficulties incurred in using the injured 
 
            member and medical evidence regarding the general loss of 
 
            use may be considered in determining the actual loss of use 
 
            compensable.  Soukup v. Shores Co., 222 Iowa 272, 268 N.W.2d 
 
            598 (1936).  The Soukup case also stands for the proposition 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            that the industrial commissioner can consider any evidence 
 
            so long as it does not include industrial disability 
 
            factors.  Schell v. Central Engineering Company, 232 Iowa 
 
            421, 4 N.W.2d 399 (1942).
 
            
 
                 When claimant exposed his knee for viewing at the 
 
            hearing he testified, that he gets big knots in his knee, 
 
            the knee swells up and the more he is on it the bigger it 
 
            gets.  Claimant testified as follows, "Right through here, 
 
            you can see it, if I move my feet there are big knots right 
 
            here and this turns all black and right in through here, it 
 
            just feels like there's something in there just grinding 
 
            back and forth, like an old rusty door hinge." (Tran. pp. 62 
 
            & 63).
 
            
 
                 Therefore, using this criteria and based upon the 
 
            evidence summarized above it is the determination of this 
 
            deputy that claimant has sustained a 15 percent permanent 
 
            impairment to his left knee and is entitled to 33 weeks of 
 
            permanent partial disability benefits pursuant to Iowa Code 
 
            section 85.34(2)(o). 
 
            
 
                 It is the determination of this deputy that there is no 
 
            demonstrated impairment to the right scapula based upon the 
 
            evidence summarized above other than claimant's subjective 
 
            complaints that he cannot lift his shoulder above 90 
 
            degrees, however, this statement was at least partially 
 
            discredited in the video tapes.  Likewise, Dr. Taylor 
 
            testified that claimant had a full range of motion of his 
 
            right wrist, elbow and arm.  
 
            
 
                 It is determined that the injury of November 19, 1990 
 
            was not the cause of a mental depression or the cause of the 
 
            myriad complaints that claimant related to Dr. Snyder, Dr. 
 
            Andrews, Dr. Yarab, Dr. Schonberg, Dr. Waylonis with respect 
 
            to his vision, speech, facial paresthesias, neck, cervical 
 
            spine, lumbar spine and right side symptoms and complaints.  
 
            As Dr. Taylor pointed out, the conclusions of these medical 
 
            care providers were based upon an inaccurate history and an 
 
            unrealistic appraisal of what claimant's true physical 
 
            abilities were based upon what he demonstrated he could do 
 
            in the videos.  Claimant's symptoms and  complaints as 
 
            reported to these doctors as well as other vocational 
 
            rehabilitation persons is inconsistent with what he 
 
            demonstrated he could do in the videos and on some points is 
 
            totally irreconcilable with his demonstrated ability in the 
 
            videos.  
 
            
 
                 Wherefore, it is determined that claimant has not 
 
            demonstrated a mental depression caused by a scheduled 
 
            member injury. 
 
            
 
                                     MEDICAL
 
            
 
                 It is determined as a matter of fact that the medical 
 
            treatment which brought about the unpaid medical bills of 
 
            Dr. Andrews, the VA Medical Center, Super X Drugstores, Dr. 
 
            Snyder and Dr. Waylonis in the total amount of $1,717.11 
 
            were not caused by the injury of November 19, 1990.  
 
            Defendants contended that they paid over $42,000 in medical 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            expenses for the treatment of claimant's symptoms and 
 
            complaints (Tran. p. 13).
 
            
 
                                 PENALTY BENEFITS
 
            
 
                 It is determined that claimant is entitled to penalty 
 
            benefits for temporary disability benefits but not for 
 
            permanent  disability benefits.
 
            
 
                 Glen McCravy, vice-president of risk management, 
 
            testified that claimant was paid temporary disability 
 
            benefits through September 26, 1991.  McCravy contended that 
 
            he received verbal information on August 27, 1991 that 
 
            claimant had reached maximum medical improvement based on a 
 
            report of a vocational rehabilitation case manager to the 
 
            effect that Dr. Rose had stated that claimant could perform 
 
            light duty.  Hence, claimant was sent an auxier letter on 
 
            August 27, 1991 and benefits were terminated on September 
 
            26, 1991 (Tran. pp. 372-375).  
 
            
 
                 First of all, a release to return to light duty is no 
 
            justification to terminate either temporary total disability 
 
            or healing period benefits.  Defendants are presumed to know 
 
            the law or that they will find out what it is before 
 
            terminating an injured worker's temporary disability 
 
            benefits when he has no other source of income caused by the 
 
            injury for which the defendants were liable.  
 
            
 
                 Iowa Code section 85.33(1) provides that temporary 
 
            total disability benefits can be terminated when (1) the 
 
            employee has returned to work or (2) is medically capable of 
 
            returning to employment substantially similar to the 
 
            employment in which the employee was engaged at the time of 
 
            the injury, whichever occurs first.  With respect to healing 
 
            period benefits Iowa Code section 85.34(1) provides that 
 
            these same two criteria apply, plus a third one of when it 
 
            is medically indicated that significant improvement from the 
 
            injury is not anticipated, again, whichever occurs first.  
 
            In this case, claimant had not returned to work, it had not 
 
            been determined that claimant was medically capable of 
 
            returning to substantially similar employment and it had not 
 
            been determined that claimant had reached maximum medical 
 
            improvement.
 
            
 
                 Second, the documentary evidence demonstrates the 
 
            unreasonableness of the termination of benefits by 
 
            defendants in this case.  McCravy did not even write to Dr. 
 
            Rose for an opinion until August 29, even though the auxier 
 
            letter went out on August 27, 1991 (Ex. K, pp. 10 & 11).  
 
            When Dr. Rose responded on September 10, 1991, he made it 
 
            clear that claimant was not capable of performing his old 
 
            job or substantially similar employment when his temporary 
 
            benefits were cut off.  Dr. Rose stated on September 10, 
 
            1991, 
 
            
 
                    "At present, I don't feel that Mr. Keener can 
 
                 do much heavy work with his right shoulder.  He 
 
                 should resolve this problem.  I think that 
 
                 eventually he is going to have good use of the 
 
                 shoulder.
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
                    At present, he has been referred to a shoulder 
 
                 specialist to see if he can have any better luck 
 
                 with Mr. Keener than I have had and so much of his 
 
                 prognosis will be determined by the shoulder 
 
                 specialist.  I think there should be no problem 
 
                 with Mr. Keener doing light duty in the trailer 
 
                 shop.  I think this would be good therapy for him 
 
                 until he regains full strength and painfree motion 
 
                 of his right shoulder (Ex. K, p. 12) 
 
            
 
                 The fact that the vocational rehabilitation case 
 
            manager reported to the insurance carrier on August 27, 1991 
 
            that "Dr. Rose stated that Mr. Keener was at maximum medical 
 
            improvement and that Dr. Rose, verbally, ok'd light duty." 
 
            (Ex. 15, p. 20) is not evidence sufficient to terminate 
 
            healing period.  Furthermore, this was a hearsay statement 
 
            of Dr. Rose (twice removed) made by the vocational 
 
            rehabilitation case manager.  Defendants had no 
 
            documentation from Dr. Rose to this effect. Claimant had not 
 
            returned to work and claimant was not capable of returning 
 
            to substantially similar employment because he was 
 
            restricted to light duty work.  The maximum medical 
 
            improvement standard was inapplicable because Dr. Rose, the 
 
            treating physician, contended at all times that claimant had 
 
            not sustained any permanent disability.  Defendants had not 
 
            paid any permanent disability and never did pay any 
 
            permanent disability.  
 
            
 
                 Furthermore, Dr. Rose's statement about a maximum 
 
            medical improvement was equivocal.  On the one hand he said 
 
            claimant had attained maximum medical improvement yet in his 
 
            final report on November 27, 1991, he states claimant had 
 
            attained only 80 percent of maximum medical improvement.  
 
            
 
                 McCravy sought by letter to verify claimant's status by 
 
            his letter of August 29, 1991, after he sent the auxier 
 
            letter on September 27, 1991 (Ex. K, pp. 10 & 11) and did 
 
            not as yet have a response from Dr. Rose because Dr. Rose 
 
            did not write his letter in response until September 10, 
 
            1991 (Ex. k, p. 12).  When the response was received Dr. 
 
            Rose made it clear that (1) claimant was not capable of 
 
            substantial similar employment (2) that claimant had not 
 
            attained maximum medical improvement.  Neither had claimant 
 
            returned to work.  At that time claimant had been referred 
 
            by Dr. Rose to a specialist for an opinion on his shoulder; 
 
            and Dr. Rose commented, "At present, I don't feel that Mr. 
 
            Keener can do much heavy work with his right shoulder.  He 
 
            should resolve this problem.  I think that eventually he is 
 
            going to have good use of the shoulder." (Ex. K, p. 12).  
 
            
 
                 Defendants were not justified in terminating benefits.  
 
            Thus, defendants unjustified premature termination of 
 
            claimant's workers' compensation benefits was an 
 
            unreasonable termination without probable cause or excuse.  
 
            Iowa Code section 86.13(4).  Since defendants contended 
 
            there was no permanent impairment or disability they were 
 
            not at liberty to use the maximum medical improvement 
 
            standard in Iowa Code section 85.34(1).  And at that point 
 
            there was no evidence that claimant had sustained a 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            permanent impairment according to Dr. Rose who was the 
 
            treating physician.  On the contrary, Dr. Rose indicated 
 
            that there was no permanent impairment.
 
            
 
                 Defendants had absolutely no documentary evidence from 
 
            the treating physician that anyone of the three conditions 
 
            which would allow them to terminate healing period benefits 
 
            or temporary total disability benefits had occurred until 
 
            Dr. Rose stated on November 27, 1991 that claimant could 
 
            return to work as a truck driver.  This is the equivalent of 
 
            stating that claimant could return to substantially similar 
 
            employment.  
 
            
 
                 Therefore, there is no question that defendants, based 
 
            upon there own documentary evidence, and the testimony of 
 
            McCravy unjustly terminated claimant's temporary disability 
 
            benefits without reasonable or probable cause or excuse and 
 
            therefore claimant is entitled to an award in the amount of 
 
            50 percent of the benefits that were unreasonably denied.  
 
            Iowa Code section 86.13(4). 
 
            
 
                 Claimant is not entitled to penalty benefits for the 
 
            failure of defendants to pay permanent partial disability 
 
            benefits because it was fairly debatable as to whether 
 
            claimant would be entitled to them.  Dr. Rose had determined 
 
            that claimant had no permanent impairment or disability.  
 
            Dr. Ward determined that claimant had a 30 percent permanent 
 
            partial disability but the meaning of his determination was 
 
            a mystery.  Therefor, it was fairly debatable as to whether 
 
            claimant was entitled to penalty benefits for defendants 
 
            failure to pay permanent disability benefits based on the 
 
            facts and evidence in this case.  Dolan v. Aid Insurance 
 
            Co., 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar Mayer Foods 
 
            Corp., File No. 724378 (1989); Collins v. K Mart Corp., File 
 
            No. 921081 filed March 11, 1993.
 
            
 
                 Claimant's benefits were stopped on September 26, 1991.  
 
            They should have been continued until December 1, 1991.  
 
            This is a period of 9.429 weeks.  Fifty percent of the 
 
            stipulated rate of $270.88 per week is $135.44.  Therefore 
 
            claimant is entitled to an award of $1,277.06 in penalty 
 
            benefits (9.429 weeks x $135.44=$1,277.06).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based on the foregoing and following 
 
            principles of law, these conclusions of law are made.
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that he is entitled to 53.857 
 
            weeks of temporary disability benefits at the rate of 
 
            $270.88 per week in the total amount of $14,588.78.
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury that the 
 
            injury was the cause of permanent disability to claimant's 
 
            left knee but that it was not the cause of permanent 
 
            disability to claimant's right scapula or right shoulder nor 
 
            was the injury the cause of a mental depression.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945); 
 
            Mortimer v. Fruehauf Corp., 502 N.W.2d 12 (Iowa 1993).  
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that he sustained a 15 percent 
 
            scheduled member permanent impairment and permanent 
 
            disability to his left leg and is entitled to 33 weeks 
 
            permanent partial disability benefits.  Iowa Code section 
 
            85.34(2)(o); Soukup v. Shores Co., 222 Iowa 272, 268 N.W.2d 
 
            598 (1936).  
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to any 
 
            industrial disability benefits for an injury to the body as 
 
            a whole for right scapula, his right shoulder or for mental 
 
            depression.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to the 
 
            $1,717.11 of medical benefits claimed at the time of the 
 
            hearing.  Iowa Code section 85.27.
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to penalty 
 
            benefits for the period from September 26, 1991 to December 
 
            1, 1991 Iowa Code section 86.13(4) when defendants unjustly 
 
            deprived him of temporary disability benefits; but he did 
 
            not sustain the burden of proof by a preponderance of the 
 
            evidence that he is entitled to penalty benefits for 
 
            defendants failure to pay permanent disability benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant fifty-three point eight 
 
            five seven (53.857) weeks of healing period benefits to 
 
            claimant at the stipulated rate of two hundred seventy and 
 
            88/100 dollars ($270.88) per week in the total amount of 
 
            fourteen thousand five hundred eighty-eight and 78/100 
 
            dollars ($14,588.78) commencing on November 19, 1990.
 
            
 
                 That defendants pay to claimant thirty-three (33) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred seventy and 88/100 dollars ($270.88) in the total 
 
            amount of eight thousand nine hundred thirty-nine and 04/100 
 
            dollars ($8,939.04) commencing on December 1, 1991.
 
            
 
                 That defendants are entitled to a credit of forty-four 
 
            point four two nine (44.429) weeks of workers' compensation 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            two hundred seventy and 88/100 dollars ($270.88) per week in 
 
            the total amount of twelve thousand thirty-four and 93/100 
 
            dollars ($12,034.93).
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
                 That defendants pay to claimant nine point four two 
 
            nine (9.429) weeks of penalty benefits at the fifty percent 
 
            (50%) rate of one hundred thirty-five and 44/100 dollars 
 
            ($135.44) per week in the total amount of one thousand two 
 
            hundred seventy-seven and 06/100 dollars ($1,277.06).  The 
 
            penalty benefits are to be paid in a lump sum and interest 
 
            will accrue from the date of this decision.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of hearing, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
 
            
 
                 That defendants pay to claimant the cost of the 
 
            sixty-five dollars ($65) industrial commissioner's filing 
 
            fee; one hundred fifty dollars ($150) for the expert 
 
            testimony of Roger Marquardt; and one hundred fifty dollars 
 
            ($150) for the expert testimony of Dr. Snyder and 
 
            seventy-eight and 46/100 dollars ($78.46) for the witness 
 
            fee of Linda Keener for the Iowa mileage and ten dollars 
 
            ($10.00) for one day in court.  These costs total four 
 
            hundred forty-three and 46/100 dollars ($443.46).
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency.  Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Greg S. Noble
 
            Attorney at Law
 
            2323 Grand Ave.
 
            Des Moines, IA  50312
 
            
 
            Mr. Terrance Brown
 
            Mr. R. Jeffrey Lewis
 
            Attorneys at Law
 
            2600 Ruan Center
 
            Des Moines, IA  50309
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                     1802, 1108, 1803, 1401, 1402.40,             
 
                                     14002.60, 2204, 3102, 3701, 2501,            
 
                                     2700, 4000.2
 
                                     Filed February 9, 1994
 
                                     Walter R. McManus, Jr.
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            EARL S. KEENER,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 969789
 
            HARRETT CORPORATION,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            GREAT WEST CASUALTY COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1802
 
            
 
                 It was determined that claimant was entitled to 
 
            additional healing period benefits for the reason that 
 
            defendants cut off his benefits more prematurely than 
 
            permitted by either Iowa Code sections 85.33(1) or 85.34(1).  
 
            
 
                 A release to light duty under either section does not 
 
            meet the requirements to terminate temporary benefits when 
 
            claimant is a truck driver and his duties include heavy 
 
            work.  Several cites of authority are given.
 
            
 
                 Defendants were precluded from using the maximum 
 
            medical improvement standard when they denied that claimant 
 
            was permanently injured and never paid any permanent 
 
            disability benefits.
 
            
 
                 Claimant was not entitled to (1) additional healing 
 
            period benefits for pain management treatment or (2) for a 
 
            running award of healing period benefits because defendants 
 
            did not provide pain management treatment.
 
            
 
            1108
 
            
 
                 It was determined that the injury was the cause of 
 
            permanent disability to claimant's left knee but it was not 
 
            the cause of permanent disability to claimant's right 
 
            scapula, right shoulder or his mental depression.
 
            
 
            1803, 1401, 1402.40, 1402.60, 2204, 3102, 3701
 
            
 
                 Claimant was awarded 33 weeks of permanent partial 
 
            disability benefits based on a 15 percent scheduled member 
 
            permanent impairment and permanent disability to the left 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            knee.
 
            
 
                 It was determined that in the absence of a physician's 
 
            rating, agency expertise and agency precedent allows a 
 
            deputy to determine the amount of impairment to a scheduled 
 
            member, particularly after personal observation of the 
 
            condition of claimant at the hearing, so long as industrial 
 
            factors are not used.  Several cites to agency precedents 
 
            are given.
 
            
 
                 Claimant was not odd-lot because this was ultimately 
 
            determined to be a scheduled member injury.  Furthermore, 
 
            claimant only inquired about two jobs in a two and one-half 
 
            year period.  Additionally, there was professional 
 
            vocational rehabilitation evidence that claimant could 
 
            perform light to medium work.
 
            
 
                 Three very effective surveillance videos, plus the live 
 
            testimony of a board certified psychiatrist, and an 
 
            effective vocational rehabilitation consultant, outweighed 
 
            claimant's testimony and subjective complaints to several 
 
            doctors, psychologists, and vocational rehabilitation 
 
            specialists, and one occupational therapist that he suffered 
 
            from a myriad number of incapacitating disabilities.  The 
 
            videos were irreconcilable with his testimony and subjective 
 
            complaints to the numerous medical care providers.  Most of 
 
            claimant's subjective complaints were not supported by 
 
            objective evidence.  The psychiatrist characterized 
 
            claimant's MMPI results as "fake bad".  Claimant's video, 
 
            showing a healthy person doing his job and how he was unable 
 
            to do it, had little probative value.
 
            
 
            2501, 2700
 
            
 
                 Defendants contended they had provided over $42,000 in 
 
            medical benefits.  It was determined that the medical 
 
            expenses submitted by claimant at hearing, that defendants 
 
            had refused to pay, were not caused by this injury.
 
            
 
            4000.2
 
            
 
                 Claimant was awarded 50 percent penalty benefits for 
 
            the healing period benefits that employer cut off 
 
            prematurely without reasonable or probable cause or excuse.  
 
            Defendants clearly violated claimant's statutory right to 
 
            these benefits unjustly.  Claimant was not entitled to 
 
            penalty benefits on permanent disability benefits.  The 
 
            permanent benefits issue was fairly debatable.