BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
GARY LEON SANTI,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 975549
 
G.M. TRADING CORP.,     
 
                                   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 contested case proceeding under Iowa Code chapter 17A.  
 
Claimant, Gary Santi, sustained a work injury on December 6, 1990 and 
 
now seeks permanent disability benefits from defendant employer G.M. 
 
Trading Corporation and defendant insurance corporation Liberty Mutual.
 
This case was heard and fully submitted in Des Moines, Iowa on November 
 
22, 1994.  The record consists of claimant's testimony and joint 
 
exhibits 1 through 40.
 
 
 
                           ISSUES
 
 
 
The parties have stipulated to the following:
 
 
 
1.  Claimant sustained injury arising out of and in the course of          
 
employment on December 6, 1990;
 
 
 
2.  The injury caused temporary disability, the extent of which is no    
 
longer in dispute;
 
 
 
3.  Permanent disability, if any, should be compensated by the       
 
industrial method commencing April 15, 1991;
 
 
 
4.  At the time of the injury, claimant had weekly earnings of        
 
$200.00, was married and entitled to two exemptions;
 
 
 
5.  Affirmative defenses are not at issue;
 
 
 
6.  Entitlement to medical benefits is no longer at issue; and
 
 
 
7.  Defendants are entitled to credit totalling $3,817.75 against any    
 
award of permanent disability benefits .
 
 
 
                               ISSUES
 
 
 
Issues presented for resolution include:
 
 
 
1.  Whether the work injury caused permanent disability;
 
 
 
2.  The extent of claimant's permanent disability; 
 
 
 
The parties calculated the rate of compensation at $152.71 based upon 
 
the foregoing factual stipulations.  However, the rate tables published 
 
by the commissioner in effect at the time of the work injury show that 
 
an individual so situated is entitled to a compensation rate of 
 
$138.18, which is hereby adopted as the correct rate.
 
 
 
                         FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner finds:
 
 
 
Gary Santi, 47 years of age at hearing, left school in the 11th grade 
 
as a poor student.  Psychometric testing indicates that claimant is of 
 
low average intelligence, but that his academic skills are extremely 
 

 
 
 
 
 
 
 
 
 
weak.  Claimant's work history is largely in unskilled and semiskilled 
 
labor.
 
 
 
The work injury occurred when claimant slipped while lifting an animal 
 
hide from a conveyor.  Claimant now suffers constant pain in the neck 
 
and right shoulder, especially with excessive use.  Claimant suffers 
 
numbness in the left shoulder blade with use, and constant numbness to 
 
the left part of his face.  He also complains of daily headaches of 
 
varying intensity.  He complains of numbness and reduced grip strength 
 
in the right hand and arm, along with a propensity to drop grasped 
 
items.
 
 
 
The dispute in this case is whether claimant's current symptoms are 
 
causally related to the stipulated work injury as opposed to a 
 
subsequent injury in 1992 while working for another employer, or due to 
 
natural arthritic processes.
 
 
 
Robert R. Sundell, M.D., a board certified neurologist, evaluated 
 
claimant on August 15, 1994.  The following history is adopted from his 
 
report:
 
     
 
In reviewing the records of Dr. Monte Harvey, he states on 12/7/90 that 
 
the patient was throwing hides off of the end of the salting table when 
 
he slipped on some salt and twisted his back.  There is no mention of 
 
any radicular pain, weakness, or numbness.  He was diagnosed as having 
 
traumatic thoracic imbalance and was taken off work briefly.  Three 
 
days later the patient was seen again by Dr. Harvey and diagnosed as 
 
having thromboid muscle spasm and he was given another five days off 
 
work.  On 1/3/91 the patient was seen again with complaints that he was 
 
still having pain.  Dr. Harvey stated "I don't find anything.  The 
 
muscle spasm he had a month ago is gone."  There was no mention of any 
 
pain radiating down the arms, tingling in the hands, or muscle weakness 
 
involving the right triceps.  The patient was subsequently seen by Dr. 
 
Dougherty.  In his note of 3/18/91 Dr. Dougherty reports that the 
 
patient has normal strength in his arms.  His sensation and reflexes 
 
are intact.  His neck did not seem tender.  The patient had cervical 
 
spine x-rays taken 1/11/91 and the report states there are moderate 
 
spondylotic changes present at the C5-6 and C6-7 levels in addition to 
 
a clay shovelers type fracture of the C7 spinous process which is a 
 
stable injury.  On 3/29/91 the patient was seen again by Dr. Dougherty 
 
and an EMG of the right upper extremity was ordered.  The EMG done by 
 
Dr. B. Krvsztofiak showed no indication of a cervical radiculopathy or 
 
any other abnormality.  On 4/5/91 Dr. Dougherty reported that the 
 
patient complained he was tender but he "doesn't impress me as being 
 
tender".  He found him to have good biceps and triceps strength with 
 
intact reflexes.  He had good neck flexion, extension, and rotation.  
 
There is no mention of any numbness involving the hand or thumb and no 
 
mention of any loss of reflexes or strength.  Dr. Dougherty stated "I 
 
also informed him that the disks in the neck are narrowed but they have 
 
been narrowed for a long time".  In Dr. Dougherty's note of 4/15/91 he 
 
relates that he felt the patient could return to work as of 4/8/91.  He 
 
felt the patient had degenerative arthritis of longstanding duration 
 
and that in terms of the fracture of the C7 spinous process he felt it 
 
would be best to leave this alone.
 
     
 
     This patient was seen by Dr. Christopher Blake on 10/17/91.  In Dr. 
 
Blake's report, he states that the patient has had no arm symptoms or 
 
leg symptoms but was complaining of pain in his mid back that radiates 
 
up his neck.  There is no mention of any numbness involving the hand or 
 
thumb or arm and no mention of any weakness or reflex asymmetry.  Dr. 
 
Blake stated "At this time I find no objective findings on his 
 
examination."  A bone scan was obtained and was felt to be essentially 
 
negative according to Dr. Blake.
 
     
 
     On 12/10/92 this patient apparently suffered a new injury at work.  
 
According to the report by Dr. Stephen Ritland of 1/4/94, the patient 
 
was lifting boxes to stack when he slipped on a cart and strained his 
 
neck.  In the report stated 3/25/93 by Dr. Jeffrey S. Levine, the 
 
patient reported neck pain with radiation into the trapezius region on 
 
the right and at times descent of the pain into the right upper 
 
extremity.  There were also complaints of dysesthetic sensations in the 
 
entire arm when he would lift his arm up.  The patient also noted that 
 

 
 
 
 
 
 
 
 
 
his thumb tip was permanently numb on the right.  Dr. Levine confirms 
 
that the patient indicates these symptoms were not present prior to the 
 
injury of 12/10/92.  Again, according to Dr. Levine, "He claims he 
 
never had any right arm pain nor did he have dysesthesias in the right 
 
upper extremity pre the 12/10/92 injury."  On examination, Dr. Levine 
 
found diminished sensation in the right thumb.  His impression was that 
 
a C6 radiculopathy was present and he suggested further studies be 
 
done.
 
     
 
     The patient was also seen by Dr. Khalid S. Aslam on 7/30/93.  Dr. Aslam 
 
reported the patient injured his neck while at work in December of 1992 
 
and that the patient was complaining of weakness in the right upper 
 
extremity and that he would drop things when he picked them up.  There 
 
was also numbness of the whole hand.  His examination did reveal 
 
weakness in his right triceps and an absent right triceps jerk.  Dr. 
 
Aslam's concern was for an acute radiculopathy on the right.
 
     
 
     The patient was seen by Dr. W. E. George on 12/10/93.  Dr. George also 
 
found in his history that the patient complained of numbness involving 
 
the tip of the thumb on the right.  Dr. Stephen Ritland in his note of 
 
1/4/94 also mentioned that the patient would get tingling and 
 
paresthesias into the right arm with radicular pain that was 
 
intermittent.  He felt there may be slight weakness in the right 
 
triceps compared to the left.  Dr. Ritland reported that the MRI done 
 
10/25/93 did show cervical degenerative disk disease with central disk 
 
protrusion at C5-6 and C6-7.
 
     . . . . 
 
     
 
     This patient initially presented on 12/7/90 to Dr. Harvey with 
 
complaints of upper thoracic pain.  There were no definite radicular 
 
symptoms or signs, and this continued to be the case when he 
 
subsequently saw Dr. John Dougherty and Dr. Christopher Blake in 1991.  
 
He was found to have pre-existing degenerative disk disease involving 
 
his cervical spine.  He was also found to have a clay shovelers' 
 
fracture involving the spinous process of C7 of uncertain age.  An EMG 
 
examination was done in 1991 which also did not show any evidence of a 
 
cervical radiculopathy.  The patient was released to return to work on 
 
4/8/91 by Dr. Dougherty.  Subsequently, in December of 1992 the patient 
 
suffered a new injury with the occurrence of new symptoms involving 
 
pain and numbness down the right arm as well as numbness involving the 
 
right thumb and hand documented by three physicians.  In addition, he 
 
was found to have new physical findings including weakness of his right 
 
triceps by two physicians and absence of a right triceps jerk by one 
 
physician.  These symptoms and signs of cervical radiculopathy 
 
involving the C7 nerve root were not present prior to 12/92.
 
Despite the appearance of new symptoms, Dr. Levine found that 
 
claimant's condition was causally related to the subject work injury, 
 
and that the 1992 injury was more in the nature of a temporary 
 
exacerbation.  It is difficult to reconcile this opinion with the 
 
appearance of substantial new reported symptoms.  Dr. Sundell, who 
 
opines that the work injury did not result in any permanent impairment, 
 
and that any aggravation of claimant's preexisting condition was 
 
temporary in nature, offers the more persuasive opinion.
 
 
 
                     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 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).
 
This decision accepts the opinion of Dr. Sundell that the subject work 
 
injury caused a temporary, not permanent aggravation of claimant's 
 
preexisting condition.  Accordingly, claimant fails to meet his burden 
 
of proof on the issue and takes nothing further.
 
 
 
                                ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
Claimant takes nothing further.  
 
 
 
Costs are assessed to defendants.
 
 
 
Signed and filed this _____ day of March, 1995.        
 
                          ________________________________        
 
                          DAVID RASEY         
 
                          DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Daryl L. Hecht
 
Attorney at Law
 
PO Box 27
 
Sioux City, Iowa 51102
 
 
 
Mr. M. James Daley 
 
Attorney at Law
 
PO Box 1828
 
Sioux City, Iowa 51102
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-1402.40
 
                                     Filed March 20, 1995
 
                                     DAVID RASEY
 
 
 
        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
GARY LEON SANTI,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 975549
 
G.M. TRADING CORP.,     
 
                                    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.    
 
________________________________________________________________
 
5-1402.40 
 
Claimant failed to prove that he sustained permanent disability.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
LEO J AZINGER,     
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                         File No. 975612
 
SANCHEZ STRUCTURES,     
 
                                      A R B I T R A T I O N
 
     Employer, 
 
                                         D E C I S I O N
 
and       
 
          
 
I.N.A. (CIGNA),    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                       STATEMENT OF THE CASE
 
 
 
Leo Azinger, claimant, has filed a petition in arbitration and seeks 
 
workers compensation benefits from Sanchez Structures, defendant 
 
employer and I.N.A., defendant insurance carrier.  The hearing was held 
 
before the undersigned on November 21, 1994 at Des Moines, Iowa.  The 
 
evidence in this case consists of the testimony of claimant, Steve 
 
O'Brien; joint exhibits A through K and claimant's exhibit 1.  The case 
 
was considered fully submitted at the close of the hearing.
 
 
 
                             ISSUES
 
 
 
The parties submitted the following issues for resolution:
 
 
 
1.  Whether claimant sustained an injury on October 31, 1990 which 
 
arose out of and in the course of his employment;
 
 
 
2.  Whether the injury resulted in any permanent disability;
 
 
 
3.  Whether claimant is entitled to additional healing period benefits;
 
 
 
4.  The nature and extent of claimant's entitlement to permanent 
 
partial disability benefits, and the appropriate commencement date 
 
for benefits, and;
 
 
 
 
 
5.  Whether claimant's proper workers' compensation rate is $333.3 
 
per week or $288.86 per week.
 
 
 
                          FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner, having reviewed all of 
 
the evidence received, finds the following facts:
 
 
 
Claimant Leo Azinger was born on May 13, 1934 and was 60 years old at 
 
the time of the hearing.  He has been an ironworker for 35 years. 
 
He graduated from high school in 1952.  After high school he attended 
 
the University of Montana for three years, but did not receive a 
 
degree.  Claimant left college because he had an emergency appendectomy 
 
that required he spend all of his college money on medical bills.  
 
During the summers while he was in college claimant worked as a logger.
 
After leaving college claimant began as an ironworker with the Anaconda 
 
Company for $2.43 per hour in October of 1955.
 
 
 
From 1957 through 1959 claimant was in the army.  When discharged from 
 
the military claimant went back to being an ironworker.  
 
 
 
Ironworkers are hired out of the union hall and go from company to 
 
company as they are needed.  During his career as an ironworker, 
 
claimant has worked out of a number of local unions in Montana, 
 
Illinois, California, North Dakota, Missouri, and Iowa.  In order to 
 

 
 
 
 
 
 
 
 
 
stay busy the claimant has always gone were the work was.  Iron work is 
 
difficult.  It requires workers, including claimant, be able to lift 
 
heavy materials, like rebar weighing up to 150 pounds sometimes while 
 
climbing up the side of a partially constructed building.  Workers must 
 
be able to climb while carrying materials and be able to hold on to the 
 
structure while they are climbing.  
 
 
 
During his 35 years as an ironworker, the claimant has had several 
 
previous on-the-job injuries.  In 1961 while working in Montana a 
 
tornado came through the job site and blew one and a half tons of steel 
 
on the claimant, breaking his neck in five places.  After a recovery 
 
period, he was able to return to iron working with no limitations on 
 
his activities.
 
 
 
In 1964 while working 32 feet in the air, claimant fell through a hole 
 
in the floor and landed on his feet.  His left heel was cracked in five 
 
places and the ball of his left foot was crushed and his left wrist was 
 
broken.  He was hospitalized for five or six days and eventually 
 
returned to iron working with no limitations.  
 
 
 
In 1970 while working in California claimant was tied off to a tall 
 
building when he was blown off the building and fell down the side of 
 
the building requiring 26 stitches in his head.  He returned to work 
 
the day after the accident.
 
 
 
In 1981 while working in Nebraska claimant suffered a ruptured biceps 
 
muscle in his right arm.  He received no workers' compensation benefits 
 
and testified that after a few weeks it didn't bother him at all.
 
In 1982 while doing some welding work in Ottumwa molten metal dripped 
 
into his left eardrum, ruining his eardrum.  He went right back to 
 
work.  None of claimant's previous industrial accidents have in any way 
 
impaired his ability to do ironwork.
 
 
 
On October 31, 1990 claimant was working as an ironworker building 
 
separation tanks at the sewage plant in Des Moines, Iowa.  When he 
 
started that particular job in September of 1990 he was paid $14.27 per 
 
hour.  His pay was later raised to $14.45 per hour.  
 
 
 
All day long on October 30, 1990 claimant worked as a feeder with a 
 
crew that was putting in vertical rebar.  Claimant was responsible for 
 
picking up and lifting rebar that weighed between 20 and 30 pounds.  
 
Claimant picked up rebar and handed it up to the men who working above 
 
him for eight hours that day.  At the end of the day he was having 
 
trouble holding pliers in his hand and was unable to keep his right arm 
 
elevated without supporting it with his left hand and arm.  The pain he 
 
was experiencing spread from his right shoulder into his chest.  He did 
 
not go to the doctor that night because he thought he had just 
 
overworked his arm and needed to rest.  
 
 
 
The next day, October 31, 1990, claimant and the rest of the crew were 
 
working on tying the vertical and the horizontal rebar together.  
 
 
 
Claimant and a coworker would pick up a 200-pound piece of rebar, climb 
 
the side of the tank, put in place the 200-pound rebar and then tie it 
 
to the existing structure.  Claimant lifted a piece of rebar over his 
 
head and when he brought his hand down he heard a tearing sound, like 
 
cloth tearing.  Immediately after that he experienced a tremendous 
 
cramping in his right arm and shoulder that spread into his chest.  
 
Claimant asked a coworker, Steve O'Brien, who was walking by to grab 
 
his arm and pull the cramp out.  Steve grabbed his right arm around the 
 
wrist and pulled while claimant leaned back and twisted his arm.  This 
 
procedure provided claimant with some relief from the pain.
 
 
 
Claimant began to work again on rebar mats when he heard three pops, 
 
the pain in his arm was gone but claimant was unable to lift his right 
 
arm.
 
 
 
Steve O'Brien, claimant's coworker, testified that he was present when 
 
claimant was injured.  Mr. O'Brien's testimony is consistent with the 
 
testimony of claimant.  He actually heard the pop that claimant 
 
described hearing in his arm.  He also testified that he did pull on 
 
claimant's arm to try and work out what they thought was a cramp.
 
On November 1, 1990 claimant was sent by defendant employer to see 
 
Achille Pandullo, D.O.  Dr. Pandullo diagnosed a rotator cuff injury of 
 
the right shoulder.  Claimant was instructed to remain off work for 
 
three days and then to return to light duty lifting no more than ten 
 

 
 
 
 
 
 
 
 
 
pounds until November 12, 1990.  If he was still symptomatic after 
 
three to five days Dr. Pandullo wanted claimant to see an orthopedic 
 
surgeon.  (Joint Exhibit A, page 2)
 
 
 
In a recheck visit on November 13, 1990 Dr. Pandullo kept the claimant 
 
on light duty and referred him to Scott Neff, D.O., an orthopedic 
 
surgeon because claimant's symptoms had not diminished or improved.  
 
(Jt. Ex. A, p. 3)
 
 
 
On December 17, 1990 Dr. Neff wrote to Dr. Pandullo to outline his 
 
findings.  He determined that claimant had a complete tear of the 
 
rotator cuff in addition to superior subluxation or displacement of the 
 
humeral head as well as osteolysis of the AC joint and huge subacromial 
 
spurring both on the acromial and subclavicular side.  He did not feel 
 
that the rotator cuff was repairable because of the migration of the 
 
humeral head. (Jt. Ex. B, p. 1-4)
 
 
 
Claimant continued to work light duty until December 10, 1990 when he 
 
was layed off.  After being layed off claimant filed for and received 
 
unemployment compensation benefits for ten weeks.  
 
 
 
Dr. Neff concluded that claimant's injury was a cumulative trauma or 
 
repetitious trauma injury with the October 30, 1990 injury representing 
 
the straw that broke the camel's back.  (Jt. Ex. B, p. 6)
 
 
 
On April 19, 1991 claimant underwent arthrotomy of the right shoulder 
 
with rotator cuff debridement, acromioplasty and excision of 
 
coricoracromial ligament, resection of residual biceps tendon from 
 
glenoid and osteophytectomy, right humeral head.  (Jt. Ex. B, p. 13)  
 
In May claimant began a course of physical therapy and later a weight 
 
rehabilitation program.  (Jt. Ex. B, p. 16)
 
 
 
On May 22, 1991 in an office note Dr. Neff wrote, "[t]he healing period 
 
following this type of surgery is at minimum 6 months, especially with 
 
his work requirements."  (Jt. Ex. B, p. 17)
 
 
 
On September 3, 1991 Dr. Neff wrote to the claim's representative of 
 
the insurance company to update them on claimant's progress.  In 
 
reference to the claimant's permanent impairment he wrote, "[t]his 
 
patient will have a profound impairment with reference to his body as a 
 
whole as a result of a completely torn and retracted and irreparable 
 
rotator cuff."  (Jt. Ex. B, p. 22)  Dr. Neff also determined that 
 
claimant's previous biceps rupture would be an impairment to his upper 
 
extremity and not to the body as a whole because the biceps muscles 
 
don't extend into the body.  (Jt. Ex. B, p. 22)  Dr. Neff also opined 
 
that claimant "has worked extremely diligently thus far with physical 
 
therapists and with physical therapy at home, and is certainly not 
 
trying to abuse the system at all.  His most desperate desire is to 
 
return to gainful employment."  (Jt. Ex. B, p. 23)
 
 
 
On October 30, 1991 Dr. Neff determined that claimant still had not 
 
reached maximum medical improvement because he was still improving and 
 
gaining strength.  (Jt. Ex. B, p. 25)
 
 
 
Claimant was clearly motivated to return to work as an ironworker.  He 
 
tried everything he could to gain mobility and strength in his shoulder 
 
to enable him to return to work.  On December 18, 1991 Dr. Neff wrote:  
 
 
 
     I must confess, and I am surprised.  I have an extensive shoulder 
 
practice, and this gentleman has worked harder than most in order to 
 
try and return to work.  I am very proud of what he has accomplished 
 
and his willingness to go through a prolonged and strenuous 
 
rehabilitation program.  
 
 
 
I think there still may have to be some modifications to the resumption 
 
of his normal job, but he wants to try getting back to his regular job, 
 
and I would certainly support that attempt.  
 
(Jt. Ex. B, p. 26)
 
 
 
On February 3, 1992 Dr. Neff released claimant back to work effective 
 
March 1, 1992 with the recommendation that he not do repetitious 
 
lifting greater than ten pounds at or above shoulder height.  (Jt. Ex. 
 
B, p. 27)
 
 
 
On March 2, 1992 Dr. Neff determined that claimant was at maximum 
 
medical improvement and that he had a 15 percent functional impairment 
 
to the body as a whole as a result of rotator cuff tear and subsequent 
 
debridement.  Dr. Neff continued as permanent, prohibitions against 
 

 
 
 
 
 
 
 
 
 
claimant lifting greater than ten pounds above shoulder height.  (Jt. 
 
Ex. B, p. 28)
 
 
 
Tom Bower physical therapist determined that claimant's permanent 
 
impairment rating was 24 percent of the upper extremity.  He converted 
 
the rating to the body as a whole since the rotator cuff was involved 
 
and determined claimant had a 14 percent impairment to the whole body.  
 
(Jt. Ex. C, p. 5)
 
 
 
In summarizing claimant's complete work restrictions found at joint 
 
exhibit C pages 9 and 10, Mr. Bower wrote, "we are somewhat displeased 
 
with the overall result.  This is certainly not to the fault of Mr. 
 
Azinger, who has given us complete cooperation."  (Jt. Ex. C, p. 9, 10) 
 
 
 
 Claimant was certainly motivated to regain every bit of strength 
 
possible to return to work as an ironworker.  Mr. Bower did not think 
 
that claimant would ever be able to return to the heavy work of an 
 
ironworker.  (Jt. Ex. C, p. 11)
 
 
 
Claimant testified he would have worked in construction until he 
 
dropped because he loved the work so much.  
 
 
 
Joint Exhibit I illustrates the numerous job searches claimant made 
 
after being released to return to work.  It is clear that claimant was 
 
highly motivated to return to some employment, even though he will 
 
never be able to work as an ironworker again.
 
 
 
In May of 1992 claimant began with NPI security as a security guard.  
 
He started at $5.50 per hour and at the time for the hearing was making 
 
$6.25 per hour.    
 
 
 
On September 6, 1994 claimant underwent an independent medical 
 
examination with Keith Riggins, M.D.  Dr. Riggins determined pursuant 
 
to the AMA Guides to the Evaluation of Permanent Impairment, that 
 
claimant had a 44 percent impairment of the upper extremity, which 
 
converted to a 26 percent impairment of the whole person.  (Jt. Ex. D, 
 
p. 5)
 
 
 
In his deposition taken on July 6, 1994, Dr. Neff states that he does 
 
not believe that claimant's injury extends into his body as a whole and 
 
that any impairment is limited to his upper extremity. (Jt. Ex. G)  
 
 
 
This completely contradicts what Dr. Neff wrote in numerous previous 
 
reports and letters.  Dr. Neff also testifies that claimant's work did 
 
not cause his injury and in his opinion claimant could have been doing 
 
absolutely nothing, like sleeping in bed, and his rotator cuff could 
 
have torn. (Jt. Ex. G)  This also completely contradicts what Dr. Neff 
 
had previously written in numerous reports.  The undersigned believes 
 
that Dr. Neff's deposition testimony is not as credible as the numerous 
 
letters and written reports prepared by him during his treatment of 
 
claimant.  Where the reports and deposition testimony contradict, the 
 
most compelling or credible evidence is that which was done at the time 
 
of the treatment of claimant.  
 
 
 
Claimant's rate of pay was $14.27 per hour for the weeks immediately 
 
preceding the injury.  Claimant's pay raise to $14.45 per hour was not 
 
in effect until week ending November 3, 1990 as reflected in claimant's 
 
exhibit 1, page 3.  Claimant's exhibit 1, page 1 reflects the hours and 
 
pay received by claimant for the weeks immediately prior to his injury. 
 
 
 
 The first 13 weeks immediately before claimant's injury are the proper 
 
weeks to use to calculate his weekly benefits, beginning with the week 
 
October 27, 1990 through and including August 4, 1990.  Claimant's 
 
total earnings for the inclusive weeks, not including overtime are 
 
$6,378.70, for an average gross weekly wage of $490.67.  Claimant is 
 
married thus he is entitled to two exemptions.  His proper weekly 
 
benefit amount is $304.14
 
 
 
                   ANALYSIS AND CONCLUSION OF LAW
 
 
 
The first issue to be addressed is whether claimant sustained an injury 
 
on October 31, 1990 which arose out of and in the course of his 
 
employment.
 
 
 
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).
 
 
 
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 
 
v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
 
 
The credible testimony of claimant and Mr. O'Brien as well as the 
 
medical records make clear that claimant was injured on October 31, 
 
1990.  Even though the injury to his shoulder may have been occurring 
 
over a period of years, it was on October 31, 1990 that the actual 
 
injury occurred.  Claimant was off of work immediately after the injury 
 
for three days and when he did return to work it was only at light duty 
 
work.  It is clear that the heavy lifting involved in being an 
 
ironworker over a period of years is what caused his injury.  Dr. Neff, 
 
with the exception of his deposition testimony, concluded that the 
 
final injury on October 31, 1990 was the "straw that broke the camel's 
 
back."  Dr. Riggins also concurs that claimant's injury was caused by 
 
his long years as an ironworker.  Thus it is determined that claimant 
 
did sustain an injury that arose out of and in the course of his 
 
employment on October 31, 1990.
 
 
 
The next issue to be determined is whether claimant's injury resulted 
 
in any permanent disability.
 
 
 
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).
 
 
 
Dr. Neff felt compelled to place permanent work restrictions on 
 
claimant and he assigned a permanent impairment rating.  As did Mr. 
 
Bower, claimant's physical therapist and Dr. Riggins.  It is clear that 
 
claimant can never go back to being an ironworker again.  He is unable 
 
to lift over ten pounds with his right arm, he is unable to lift his 
 
right arm and hold it up without supporting it with his left arm.  He 
 
is unable to lift with his right arm on a consistent basis and his 
 
shoulder locks up periodically.  Claimant's injury clearly has resulted 
 
in permanent disability.
 
 
 
The next issue to be determined is claimant's entitlement to healing 
 
period benefits.  
 
 
 
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).
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Claimant was off work for three days after his October 31, 1990 injury 
 
and then on light duty until December 10, 1990 when he was layed off 
 
permanently and unable to obtain other iron work because of his arm.  
 
Dr. Neff released claimant to return to work on March 1, 1992.  Up 
 
until that time claimant was forbidden from working by his treating 
 
physician.  Claimant is entitled to healing period benefits from 
 
December 10, 1990 through March 1, 1992.
 
 
 
The next issue to be determined is the nature and extent of claimant's 
 
entitlement to permanent partial disability benefits as well as the 
 
appropriate commencement dates for benefits.
 
 
 
When disability is found in the shoulder, a body as a whole situation 
 
may exist.  Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 
 
161 (1949).  In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial 
 
Commissioner Report 281 (App. 1982), a torn rotator cuff was found to 
 
cause disability to the body as a whole.
 
 
 
Rotator cuff extends into body as a whole and is not limited to the 
 
upper extremity or the arm.  The upper extremity is not necessarily 
 
synonymous with arm.  Auten v. Celotex Corp., file number 873898 (App. 
 
Decn. May 27, 1993)
 
 
 
Dr. Neff, up until the time of his deposition, had concluded that 
 
claimant's injury would result in impairment to his body as a whole and 
 
not just to his arm, because the injury involved his rotator cuff.  It 
 
is clear from the medical evidence that claimant's injury is not 
 
limited to his arm, but extends into his body as a whole.  Since 
 
claimant has an injury to his body as a whole, an evaluation of his 
 
industrial disability is mandated.
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience and inability to engage in 
 
employment for which the employee is fitted.  Olson v. Goodyear Serv. 
 
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references to anatomical or functional abnormality or loss.  Although 
 
loss of function is to be considered and disability can rarely be found 
 
without it, it is not so that a degree of industrial disability is 
 
proportionally related to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 
the length of the healing period; the work experience of the employee 
 
prior to the injury and after the injury and the potential for 
 
rehabilitation; the employee's qualifications intellectually, 
 
emotionally and physically; earnings prior and subsequent to the 
 
injury; age; education; motivation; functional impairment as a result 
 
of the injury; and inability because of the injury to engage in 
 
employment for which the employee is fitted.  Loss of earnings caused 
 
by a job transfer for reasons related to the injury is also relevant.  
 
 
 
Likewise, an employer's refusal to give any sort of work to an impaired 
 
employee may justify an award of disability.  McSpadden v. Big Ben Coal 
 
Co., 288 N.W.2d 181 (Iowa 1980).  These are matters which the finder of 
 
fact considers collectively in arriving at the determination of the 
 
degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how each of the factors 
 
are to be considered.  Neither does a rating of functional impairment 
 
directly correlate to a degree of industrial disability to the body as 
 
a whole.  In other words, there are no formulae which can be applied 
 
and then added up to determine the degree of industrial disability.  It 
 
therefore becomes necessary for the deputy or commissioner to draw upon 
 
prior experience as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  See 
 

 
 
 
 
 
 
 
 
 
Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner 
 
Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
At the time of his injury claimant was 56 years old.  He had worked as 
 
an ironworker for almost 35 years.  His injury and work restrictions 
 
make it impossible for him to ever work as an ironworker again.  
 
 
 
Claimant is a remarkable man with a work ethic that is incredible.  
 
None of his previous injuries, including a broken neck, stopped him 
 
from being an ironworker.  His motivation to return to iron working and 
 
to cooperate with his treatment and physical therapy is apparent from 
 
the doctors notes and the physical therapy notes.  His present 
 
employment pays $6.25 per hour, a considerable drop from the $14.45 per 
 
hour he was earning as an ironworker.  His permanent work restrictions 
 
include no repetitive lifting over ten pounds at or above his shoulder. 
 
 
 
 He has functional impairment ratings of 15 percent, from Dr. Neff, 14 
 
percent from Tom Bower, and 26 percent from Dr. Riggins.  
 
 
 
After considering all of the factors used to determine industrial 
 
disability, it is the decision of the undersigned that claimant has 
 
sustained a 65 percent industrial disability.
 
 
 
Claimant's healing period terminated on March 1, 1992, when Dr. Neff 
 
released him to return to work.  The commencement date for industrial 
 
disability benefits is March 2, 1992.
 
 
 
The final issue to be determined is claimant's proper rate of weekly 
 
compensation benefits.  
 
 
 
Iowa Code section 85.36(6) provides:
 
     
 
     In the case of an employee who is paid on a daily, or hourly basis, or 
 
by the output of the employee, the weekly earnings shall be computed by 
 
dividing by thirteen the earnings, not including overtime or premium 
 
pay, of said employee earned in the employ of the employer in the last 
 
completed period of thirteen consecutive calendar weeks immediately 
 
preceding the injury.
 
 
 
The thirteen weeks previous to claimant's injury are the proper weeks 
 
to use to calculate claimant's gross weekly wages and his weekly 
 
benefit amount.  Those weeks are August 4, 1990 through and including 
 
October 27, 1990.  Claimant's total earning were $6,378.70 for an 
 
average gross weekly wage of $490.67.  At the time of his injury 
 
claimant was married, thus he is entitled to two exemptions, thus his 
 
proper weekly benefit amount is $304.14.
 
 
 
                             ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
That defendants pay claimant three hundred twenty-five (325) weeks of 
 
permanent partial disability benefits at the rate of three hundred four 
 
and 14/100 dollars ($304.14) per week.
 
 
 
That defendants pay claimant sixty-four (64) weeks of healing period 
 
benefits at the rate of three hundred four and 14/100 dollars ($304.14) 
 
per week.
 
 
 
That defendants be given a credit for benefits previously paid.
 
 
 
That defendants pay interest as provided by Iowa Code Section 85.30.
 
 
 
That defendants pay the costs of this action pursuant to rule 343 IAC 
 
4.33.
 
 
 
That defendants file claim activity reports as requested by the agency.
 
 
 
Signed and filed this __________ day of January, 1995.
 
                              ______________________________
 
                              TERESA K. HILLARY
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Nick J. Avgerinos
 
Attorney at Law
 
30 N. LaSalle St.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Chicago, IL  60602
 
 
 
Mr. Stephen Lombardi
 
Mr. Peter Sand
 
Attorneys at Law
 
10101 University Ave
 
Des Moines, IA  50325
 
 
 
Mr. William W. Schwarz
 
Attorney at Law
 
Westgate Plaza
 
1000 73rd St STE 10
 
Des Moines,  IA  50311
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                 51802, 51803, 51803.1, 
 
                                 52209, 53001, 53002
 
                                 Filed January 31, 1995
 
                                 Teresa K. Hillary
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
LEO J AZINGER,     
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 975612
 
SANCHEZ STRUCTURES,     
 
                                   A R B I T R A T I O N
 
     Employer, 
 
                                      D E C I S I O N
 
and       
 
          
 
I.N.A. (CIGNA),    
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
 
 
51802, 51803, 51803.1, 52209, 53001, 53002
 
Fifty-six-year-old claimant awarded 65 percent industrial disability 
 
award based on a shoulder injury, that was determined to be, based on 
 
medical evidence, part of body as a whole and not scheduled member, 
 
when claimant had actual loss of earning from $14.45 per hour to $6.25 
 
per hour and lifting restriction of 10 pounds at or above shoulder 
 
height.  Rate calculated based on earnings over thirteen weeks previous 
 
to the injury.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRED R. FEHRMANN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 975646
 
            SAMPSON FARMS,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Fred R. 
 
            Fehrmann against his former employer, Sampson Farms, and its 
 
            insurance carrier, Employers Mutual Companies.  The matter 
 
            came on for hearing before the undersigned deputy 
 
            commissioner on December 11, 1992, at Des Moines, Iowa.
 
            
 
                 The evidence in the case consists of testimony from the 
 
            claimant, Thomas Mohan (claimant's current employer), Lyn 
 
            Ashmore (vocational rehabilitation counselor), and Barbara 
 
            Fehrmann (claimant's wife); and, joint exhibits 1 through 9.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Fred Fehrmann, was born in 1942.  At the time 
 
            of the hearing he was 50 years of age.  Claimant completed 
 
            the eighth grade at Ferguson High School in Ferguson, Iowa.  
 
            He has no military experience.  Although he is currently 
 
            married, he was single on December 7, 1990.
 
            
 
                 Claimant testified that on December 7, 1990, while 
 
            working as a truck driver for Sampson Farms, he was loading 
 
            sheet steel at a plant in East Chicago, Indiana.  His truck 
 
            consisted of a flat bed with a tarp and two sides.  He 
 
            removed the side rails to load the steel which measured six 
 
            feet by twelve feet.  The load consisted of two separate 
 
            piles of the sheet steel, three to three and one-half feet 
 
            high.
 
            
 
                 As claimant began to tie down the first stack, he threw 
 
            the chain over the pile of steel and as he chained down the 
 
            first stack, the latch binder broke.  Claimant fell off of 
 
            the truck to the ground, a distance of between six feet to 
 
            seven feet.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant could not recall whether he was unconscious, 
 
            but eventually stood up and went into the plant to tell 
 
            someone that he had fallen from the truck.  At this time, 
 
            claimant felt pain in his back and lower hip.  Claimant 
 
            drove his truck back to Marshalltown, apparently calling his 
 
            wife from the road and telling her about the incident and 
 
            that he was experiencing substantial pain.  Once he returned 
 
            to Marshalltown, Barbara Fehrmann picked up claimant from 
 
            the dropoff site.
 
            
 
                 Claimant was unable to make an appointment with his 
 
            family physician until Tuesday, December 11, 1990.  Although 
 
            initially seen by Joseph Pollpeter, M.D., he was immediately 
 
            referred to Carl O. Lester, M.D., an orthopedic surgeon 
 
            (Joint Exhibit 3, page 9).  Dr. Lester noted that claimant 
 
            fell off of a truck while unloading steel, landing on his 
 
            left elbow and left buttock.  An examination revealed that 
 
            claimant displayed diminished feeling in the foot and shin 
 
            and sensory decrease in the L-5 nerve root distribution.  
 
            Claimant was unable to walk on his toes and could walk on 
 
            his heels with difficulty.  Dr. Lester's initial diagnosis 
 
            was that of a ruptured or herniated disc at the L-4 and L-5 
 
            level.  He recommended an MRI (Jt. Ex. 3, p. 9).
 
            
 
                 During the next several days, claimant underwent both 
 
            an MRI scan and a CT scan both of which were normal.  
 
            Claimant returned to Dr. Lester on several occasions during 
 
            January of 1991 and continued to complain of left leg 
 
            numbness and pain.  Dr. Lester was of the opinion that 
 
            claimant may have bruised his sciatic nerve and recommended 
 
            an EMG study.  Instead, claimant was sent to David Boarini, 
 
            M.D., for a second opinion (Jt. Ex. 3, p. 10).
 
            
 
                 Dr. Boarini recommended an epidural steroid injection 
 
            and EMG study.  The study revealed a peripheral neuropathy 
 
            with no evidence of radicular changes.  He recommended a 
 
            neurological workup and physical therapy (Jt. Ex. 3, pp. 2 
 
            and 1).  Claimant underwent physical therapy during January 
 
            and February for a total of 14 visits.  The notes indicate 
 
            that claimant continued to have hip pain radiating into the 
 
            left leg.  The discharge note states that the claimant did 
 
            not meet goals through physical therapy (Jt. Ex. 3, pp. 14-
 
            19).
 
            
 
                 Dr. Boarini had also recommended claimant see Ronald 
 
            Sims, M.D., a neurologist.  Dr. Sims' examination and 
 
            further nerve conduction studies suggested that claimant was 
 
            suffering from a neuropraxic lesion in the left sciatic 
 
            nerve or left lumbosacral plexus.  Dr. Sims indicated that 
 
            this type of lesion would account for the mild findings on 
 
            the EMG needle exam.  He recommended continued physical 
 
            therapy and observation, and released claimant to return to 
 
            work without restrictions on March 25, 1991.  His letter 
 
            stated that claimant was able to resume work as long as his 
 
            symptoms did not worsen.  Claimant was instructed to return 
 
            to the clinic if he did not continue to improve (Jt. Ex. 3, 
 
            pp. 32-40).
 
            
 
                 Apparently, claimant again saw Dr. Sims at the request 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of John Hughes, M.D., and Dr. Lester in September of 1991.  
 
            Claimant continued to have some low back pain as well as 
 
            hypesthesias and parethesias along the left leg, 
 
            particularly when sitting for prolonged periods of time.  
 
            Again, Dr. Sims indicated claimant had low back pain 
 
            associated with lumbar degenerative disc disease and a left 
 
            sciatic neuropathy.  He recommended claimant continue with 
 
            low back exercises prescribed earlier by the physical 
 
            therapist and he agreed to see claimant on an as-needed 
 
            basis (Jt. Ex. 3, p. 41).
 
            
 
                 Although claimant had initially sought an impairment 
 
            rating from Dr. Sims, he was referred to Joseph Doro, D.O., 
 
            an associate of Sims for the rating.  Dr. Doro's evaluation, 
 
            dated May 6, 1992, indicated that claimant continued to 
 
            complain of pain in the back and left leg.  He had episodes 
 
            of paresthesia.
 
            
 
                 The notes indicate that claimant was no longer able to 
 
            drive a truck because of the constant sitting which caused 
 
            pain.  An examination of claimant's motor skills revealed no 
 
            "focal weakness, atrophy, fasciculations or abnormal 
 
            movements."  Sensation testing revealed "patchy" decrease in 
 
            pinprick in the left lower extremity.  Straight leg raising 
 
            tests were negative.  Dr. Doro noted tenderness over the 
 
            lower lumbosacral paraspinal muscles on the left side.  He 
 
            confirmed that his findings were consistent with Dr. Sims' 
 
            diagnosis of a sciatic neuropathy (Jt. Ex. 3, pp. 42-43).
 
            
 
                 Dr. Doro was of the opinion that claimant had the 
 
            following impairments:
 
            
 
                    In looking at the Guides To Evaluation of 
 
                 Permanent Impairment, 3rd Edition, Revised, on 
 
                 Page 77, Table 51, the maximum percent loss of 
 
                 function due to sensory deficit, pain or 
 
                 discomfort for sciatic involvement above the 
 
                 hamstring innervation, would be 25 percent.  Since 
 
                 the patient has not responded to conservative 
 
                 measures and since he feels that his pain is as 
 
                 bad as it has been since the injury and since he 
 
                 has not been able to work because of the pain, I 
 
                 would place that at that maximum level.
 
            
 
                    When relating this impairment of the lower 
 
                 extremity to impairment of the whole person, using 
 
                 Table 46 on Page 72, this would translate into 10 
 
                 percent.
 
            
 
            (Jt. Ex. 3, p. 43)
 
            
 
                 Claimant currently works for Sunset Sales, Inc., a 
 
            company which manufactures and constructs mobile homes.  
 
            Since the spring of 1991, claimant has been employed in a 
 
            supervisory position and acts as a skilled operator of a 
 
            "toter," an apparatus which moves the large pieces of mobile 
 
            homes.  Claimant currently earns $1,600 per month, or 
 
            $19,200 per year.  Prior to his employment with Sampson 
 
            Farms, claimant had worked for Sunset Sales, beginning in 
 
            1969 and leaving the company in 1987.  He testified that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            during this time, he earned more money than he currently 
 
            earns.  Claimant's job duties during his initial employment 
 
            with Sunset Sales included actual construction of the homes.  
 
            In this position, claimant was required to perform an 
 
            extensive amount of lifting.  Currently, claimant's position 
 
            as primary supervisor does not require him to lift 
 
            materials.
 
            
 
                 Thomas Mohon, claimant's employer and owner of the 
 
            company, stated that claimant was a very good employee who 
 
            had not missed any time from work during his employment with 
 
            the company.  Both claimant and Mr. Mohon speculated that 
 
            claimant would continue to work for the company until 
 
            retirement.
 
            
 
                 Lyn Ashmore, the vocational rehabilitation counselor, 
 
            recommended that claimant undergo the general aptitude test 
 
            battery to determine his aptitude in several areas.  The 
 
            results of these examinations can be found at joint exhibit 
 
            1, pages 1 through 25).  The tests were administered in 
 
            March of 1992.
 
            
 
                 Barbara Fehrmann, claimant's wife, also testified at 
 
            the hearing.  She stated that claimant has undergone a 
 
            change in his sleep patterns and currently constantly turns 
 
            and twists due to pain.  She attended all doctor 
 
            appointments with claimant, and stated that although a 
 
            herniated disc was possible, no tests corroborated this 
 
            diagnosis.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on December 7, 1990, which arose out of 
 
            and in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 7, 
 
            1991, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Defendants have denied liability in this case and in so 
 
            doing have intimated that claimant hurt his back and hip 
 
            during the weekend after claimant's trip to Illinois, not 
 
            while on his regular run to East Chicago to load sheet 
 
            steel.  Nothing in the record corroborates this argument.  
 
            The histories given to the various physicians claimant has 
 
            seen for treatment is consistent with his version of how the 
 
            accident occurred both at the hearing and during his 
 
            deposition, taken September 9, 1992.  The evidence supports 
 
            a finding that claimant was performing his regular job 
 
            duties in a manner consistent with the requirements of the 
 
            same.  And, he was scheduled to drive to East Chicago, 
 
            Indiana, to load sheet steel, duties which he was performing 
 
            on December 7, 1990.  That there were no witnesses is not 
 
            fatal to claimant's case.  Likewise, although claimant did 
 
            not report the injury to his employer until Sunday, there is 
 
            no requirement that he do so.  In fact, many claimants 
 
            believe that they have not been seriously injured and do not 
 
            report incidents immediately.
 
            
 
                 As a result, it is found that claimant received an 
 
            injury on December 7, 1990, which arose out of and in the 
 
            course of his employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between claimant's work injury and his 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 7, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 The only opinion regarding the nexus between claimant's 
 
            injury and his disability can be found at page 15 of Dr. 
 
            Doro's deposition, joint exhibit 5.  He states that the 
 
            diagnosis of sciatic neuropathy was a condition secondary to 
 
            the injury that claimant sustained.  Likewise, in reviewing 
 
            the medical evidence in its entirety, it is found that 
 
            claimant has sustained his burden of proof to show by a mere 
 
            prove by a preponderance of the evidence that there is a 
 
            causal relationship between his injury and disability.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total disability or healing period 
 
            benefits or permanent partial disability benefits.
 
            
 
                 Claimant was off of work from December 8, 1990 through 
 
            March 24, 1991.  He was released to return to work without 
 
            restrictions by Dr. Sims.  However, Dr. Sims' notes indicate 
 
            that claimant should perform normal job activities as 
 
            tolerated.  Claimant was advised to seek further medical 
 
            treatment on an as-needed basis.  Claimant did not seek 
 
            medical treatment, and in fact did not seek medical 
 
            attention until he desired an impairment rating from Dr. 
 
            Sims who eventually referred him to Dr. Doro.  These events 
 
            took place in May of 1992.  However, Dr. Doro has rendered 
 
            an impairment rating.  As a result, it is found that 
 
            claimant has sustained a permanent injury, and is entitled 
 
            to healing period benefits from December 8, 1990 through 
 
            March 24, 1991.
 
            
 
                 Having resolved whether claimant has sustained a 
 
            permanent injury, the parties failed to agree upon what 
 
            portion of the body claimant injured.  Defendants contend 
 
            that claimant has sustained a scheduled member; claimant 
 
            argues that he is entitled to an injury to the body as a 
 
            whole so that claimant's industrial disability can be 
 
            evaluated.
 
            
 
                 Dr. Doro is of the opinion that claimant had some 
 
            objective findings in the lower lumbar spine.  There is 
 
            nothing in the medical evidence to refute this opinion.  It 
 
            is found that claimant has sustained an injury to the body 
 
            as a whole.
 
            
 
                 As a result, an evaluation of his industrial disability 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 50 years of 
 
            age.  He is currently employed, and earns more than what he 
 
            was earning at the time of the injury.  Although claimant 
 
            tried to establish that he had an earning potential in 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            upwards of $40,000 per year, it was not shown that claimant 
 
            had ever earned this much in a year in the truck driving 
 
            business.  Although he stated on numerous occasions that he 
 
            was unable to perform the work, this is not borne out by the 
 
            medical evidence.  In fact, Dr. Doro was even unwilling to 
 
            state that claimant would not be able to earn a living as a 
 
            truck driver.
 
            
 
                 Claimant has sustained some functional loss of the 
 
            lumbar spine.  His physical limitations may make it more 
 
            difficult for him to perform the same type of job duties he 
 
            has performed in the past.
 
            
 
                 Claimant does not have much education, and given his 
 
            age and lack of formal education would probably be very 
 
            difficult to train in any type of occupation.  However, he 
 
            appears to be a very productive worker and has found 
 
            suitable employment.
 
            
 
                 After considering all of the factors, it is found that 
 
            claimant has sustained a 15 percent industrial disability.
 
            
 
                 The last issue to be addressed is claimant's workers' 
 
            compensation rate.
 
            
 
                 At the time of the injury, claimant was single and 
 
            entitled to one exemption.  The parties were able to 
 
            stipulate that his gross weekly wages for the 13 weeks 
 
            preceding the injury total $554.  Using the appropriate 
 
            guides, it is found that claimant's workers' compensation 
 
            rate is $316.76.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from December 8, 1990 through March 24, 1991, at 
 
            the rate of three hundred sixteen and 76/100 dollars 
 
            ($316.76) per week.
 
            
 
                 That defendants shall pay claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred sixteen and 76/100 dollars ($316.76) per 
 
            week beginning March 25, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms Gail E Boliver
 
            Attorney at Law
 
            8 E Southridge Rd
 
            Marshalltown IA 50158
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309-2727
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1800; 5-1805
 
                                          Filed December 30, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
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