BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
CHARLES ELLSWORTH,  
 
           
 
     Claimant,  
 
           
 
vs.        
 
                                         File No. 980915
 
UNVERFERTH MANUFACTURING, INC.,
 
                                      A R B I T R A T I O N
 
     Employer,  
 
                                        D E C I S I O N
 
and        
 
           
 
THE TRAVELERS,      
 
           
 
     Insurance Carrier,   
 
     Defendants.     
 
___________________________________________________________
 
 
 
                  STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Charles Ellsworth, 
 
claimant, against Unverferth Manufacturing, Inc., employer, hereinafter 
 
referred to as Unverferth Manufacturing, a self-insured defendant, for 
 
workers' compensation benefits as a result of an alleged injury on 
 
March 25, 1991.  On February 2, 1995, 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.  On March 25, 1991 claimant received an injury arising out of and in 
 
the course of employment with Unverferth Manufacturing.
 
 
 
2.  Claimant is not seeking additional healing period benefits at this 
 
time. 
 
 
 
3.  The injury is a cause of a permanent industrial disability.
 
 
 
4.  If permanent partial disability benefits are awarded, they shall 
 
begin as of August 31, 1992.
 
 
 
5.  At the time of injury claimant's gross rate of weekly compensation 
 
was $314.00; he was married; and, he was entitled to two exemptions.  
 
Therefore, claimant's weekly rate of compensation is $203.70 according 
 
to the Industrial Commissioner's published rate booklet for this 
 
injury. 
 
 
 
6.  Medical benefits are not in dispute.
 
 
 
                              ISSUES
 
 
 
The only issue submitted by the parties for determination in this 
 
proceeding is the extent of claimant's entitlement to permanent 
 
disability benefits.
 
 
 
                       FINDINGS OF FACT
 
 
 
Having heard the testimony and considered all of the evidence, the 
 
deputy industrial commissioner finds as follows:
 
 
 
A credibility finding is not necessary to this decision as there was 
 
little dispute in the record as to the facts.  The only dispute 
 

 
 
 
 
 
 
 
 
 
concerns the impact these facts have upon claimant's loss of earning 
 
capacity.
 
 
 
Claimant worked for Unverferth Manufacturing from October 1989 until 
 
February 1993 when claimant resigned to work for another employer.  
 
Unverferth Manufacturing is a manufacturer of farm equipment and 
 
employs approximately 150 people.  At the time of injury, claimant was 
 
a production worker assigned to the job of press break operator.  After 
 
claimant received work restrictions, he was given temporary jobs until 
 
he was permanently reassigned to janitorial work within his 
 
restrictions.  Claimant earned $7.85 per hour at the time of injury but 
 
soon thereafter his pay as a production worker was increased to $8.10.  
 
The janitorial job paid only $6.50 per hour.  Claimant was performing 
 
the janitorial job when he resigned.  According to his supervisor, 
 
claimant was a satisfactory employee and had good attendance but had a 
 
problem with talking to others during duty hours.
 
 
 
The work injury occurred while lifting a heavy metal bar used to 
 
support parts on his press break machine.  Claimant experienced the 
 
onset of upper and lower back pain thereafter requiring medical 
 
treatment.  Claimant did not have a history of back problems before 
 
this incident.  Claimant was initially treated by a family practice 
 
physician but when he failed to improve, his care was transferred to 
 
Arnold Delbridge, M.D., an board certified orthopedic surgeon.  Dr. 
 
Delbridge remained his physician until September 1994 when claimant 
 
moved to Minnesota and began treating at the Mayo Clinic.  Initial 
 
treatment by Dr. Delbridge remained conservative for the first several 
 
months.  This treatment involved physical therapy, medication and 
 
periods of time off work or working with extensive restrictions on 
 
activity.  Finally, when conservative care failed to alleviate the 
 
problems, Dr. Delbridge performed surgery on the lower back in November 
 
1991.  Following recovery from this surgery, claimant returned to work 
 
at Unverferth Manufacturing with permanent restrictions.
 
 
 
Although Dr. Delbridge states that claimant's primary problem is 
 
congenital spondylolysis of the spine, he opines that claimant's 
 
permanent impairment and treatment to date is the result of the injury 
 
of March 25, 1991 at Unverferth Manufacturing which aggravated the 
 
preexisting condition.  He opines that the lower back condition caused 
 
by the injury results in a 14 percent permanent partial impairment to 
 
the body as a whole.  He does not relate any impairment to the upper 
 
back problems which are still ongoing according to claimant.  The views 
 
of Dr. Delbridge are uncontroverted in the record.  Therefore, the work 
 
injury of March 25, 1991 is found to be a cause of significant 
 
permanent partial impairment to the body as a whole resulting in both 
 
upper and lower back problems.
 
 
 
More important to this industrial disability analysis is the activity 
 
restrictions permanently imposed by Dr. Delbridge consisting of no 
 
repetitive lifting over 25 pounds and maximum lifting of no more than 
 
35 pounds.  Claimant states that he occasionally exceeded these 
 
restrictions in his janitorial job at Unverferth Manufacturing and at 
 
his current job but is able to do so.  Such activity restrictions 
 
prevent a return to the production job he had at the time of injury.  
 
However, Unverferth Manufacturing accommodated for these restrictions 
 
by providing suitable janitorial work, albeit with less pay.
 
 
 
Claimant resigned from the janitorial job voluntarily because he did 
 
not like the work.  He then took a job installing seamless gutters on 
 
houses in Minnesota which requires intermittent lifting and climbing.  
 
This job pays somewhat more than his janitorial job due to incentive 
 
pay but the job is seasonal.  Claimant roughly makes about the same 
 
today as he did at Unverferth Manufacturing when he left.  However, 
 
claimant likes the outdoors work.  At the time of hearing, claimant was 
 
off work during his winter break and did not know whether he would 
 
return to the gutter job due to its distance from his home in Iowa.
 
 
 
There was evidence in the record that claimant had an alcohol and drug 
 
abuse problem in the past but claimant states that he has been free of 
 
such abuse since 1988, prior to his employment at Unverferth 
 
Manufacturing. There is nothing in the record to suggest otherwise. 
 
Claimant's past employment history is a bit unusual due to the large 
 

 
 
 
 
 
 
 
 
 
number of jobs, 15 or so, that he has held in the past.  In most cases, 
 
claimant voluntarily left due to dissatisfaction with the work or with 
 
his bosses but he was fired from a few jobs due to lack of attendance.  
 
Claimant attributes this to his past drinking problems.  Claimant has 
 
only worked for two employers, one of them Unverferth Manufacturing, 
 
since 1988 which is consistent with his claim of recovery from 
 
substance abuse.
 
 
 
Claimant is a high school graduate and relatively young at age 32.  
 
Most of claimant's past employment involves work which routinely 
 
exceeds his current work restrictions, such as meatpacking and building 
 
construction.  Also, claimant at one time possessed state and national 
 
certifications after completing a training course as an emergency 
 
medical technician assistant (EMTA) and he held jobs as an ambulance 
 
and hospital attendant.  Claimant was fired from some of these jobs and 
 
he quit the rest.  He stated at hearing that he did not like the work 
 
due to stress.  He has since lost his certifications.  Claimant states 
 
that such work today would not be possible due to his back problems.  
 
However, claimant admitted at hearing that additional retraining would 
 
not be a problem for him intellectually
 
 
 
Consequently, although claimant is currently employed, he suffered a 
 
significant loss of income from his inability to return to production 
 
work at Unverferth Manufacturing.  Unverferth Manufacturing only 
 
partially accommodated for claimant due to his pay cut.
 
 
 
Although claimant has indicated that his upper back is causing more 
 
problems and may require additional treatment in the future, these 
 
problems were not shown to materially aggravate his industrial 
 
disability at this time.
 
 
 
From examination of all of the factors of industrial disability, it is 
 
found that the work injury of March 25, 1991 was a cause of a 25 
 
percent loss of earning capacity.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
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., Vol. l, No. 3 Iowa Indus. Comm. 
 
Decn. 654, 658 (App. Decn., February 28, 1985).
 
 
 
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.  
 
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. 
 
 
 
                             ORDER
 
 
 
1.  Defendants shall pay to claimant one hundred twenty-five (125) 
 
weeks of permanent partial disability benefits at a rate of two hundred 
 

 
 
 
 
 
 
 
 
 
three and 70/l00 dollars ($203.70) per week from August 31, 1992.
 
 
 
2.  Defendants shall pay accrued weekly benefits in a lump sum and 
 
shall receive credit against this award for benefits previously paid.
 
 
 
3.  Defendants shall pay interest on unpaid 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 February, 1995.                          
 
                              ______________________________                              
 
                              LARRY P. WALSHIRE                            
 
                              DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
 
 
Copies To:
 
 
 
Mr. Nick J. Avgerinos
 
Mr. Stephen J. Smalling
 
Attorneys at Law
 
135 S LaSalle St  STE 1527
 
Chicago  IL  60603
 
 
 
Mr. Michael A. McEnroe
 
Attorney at Law
 
3151 Brockway Rd
 
PO Box 810
 
Waterloo  IA  50704
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                             5-1803
 
                             Filed February 27, 1995
 
                             LARRY P. WALSHIRE
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
           
 
CHARLES ELLSWORTH,  
 
           
 
     Claimant,  
 
           
 
vs.        
 
                                        File No. 980915
 
UNVERFERTH MANUFACTURING, INC.
 
                                      A R B I T R A T I O N
 
     Employer,  
 
                                         D E C I S I O N
 
and        
 
           
 
THE TRAVELERS,      
 
           
 
     Insurance Carrier,   
 
     Defendants.     
 
___________________________________________________________
 
 
 
5-1803
 
Non-precedential, extent of disability case.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
 
 
BETTY BERG,     
 
         
 
     Claimant, 
 
         
 
vs.                                      File No. 981109
 
         
 
HY-VEE FOOD STORES, INC.,            A R B I T R A T I O N
 
         
 
     Employer,                          D E C I S I O N
 
         
 
and        
 
         
 
EMPLOYERS MUTUAL INSURANCE     
 
COMPANIES, 
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
-----------------------------------------------------------------         
 
                   STATEMENT OF THE CASE
 
         
 
Claimant, Betty Berg, has filed a petition in 
 
arbitration and seeks workers' compensation benefits from 
 
Hy-Vee Stores, Inc., defendant employer, and Employers Mutual 
 
Company, defendant insurance carrier, on account of an 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
injury on January 9, 1990 arising out of and in the course 
 
of her employment with defendant employer.  The case was 
 
heard before the undersigned on March 27, 1995 at Storm 
 
Lake, Iowa.  The evidence in this case consists of the 
 
testimony of claimant and Bob Teeselink and joint exhibits 1 
 
through 52.  The case was considered fully submitted at 
 
the close of the hearing.
 
         
 
                  ISSUES
 
         
 
The parties presented the following issues for 
 
resolution:
 
         
 
1.  Whether claimant is entitled to permanent partial 
 
disability benefits; and,
 
         
 
2.  Whether claimant's proper rate of weekly 
 
compensation benefits should include bonuses she received.
 
         
 
                  FINDINGS OF FACT
 
         
 
The undersigned, having heard and considered all of the 
 
evidence, makes the following findings of fact:
 
         
 
Claimant, Betty Berg, was married and the mother of two 
 
children, both of whom were grown and out of the home, at 
 
the time of her injury.  On the date of the hearing she was 
 
49 years old.  She graduated from high school in 1963 and 
 
has had no additional formal education since that time.  
 
         
 
After high school she got married and stayed home to 
 
raise her children for approximately 15 years.  In the late 
 
         
 

 
         
 
 
 
 
 
 
 
1970s through the early 1980s she worked part-time, 
 
approximately 20 hours per week, as a waitress.  She was 
 
paid $4.90 per hour when she started and was paid $5.25 when 
 
she left.
 
         
 
From 1981 until 1985 she ran her own business, Ye Olde 
 
Yarn Shop.  She ran the business by herself with only one 
 
part-time person who worked only when the claimant wasn't 
 
able to be in the store.  The business was unsuccessful and 
 
claimant was not able to draw a salary from the business.
 
         
 
In 1986 she began with defendant employer as a checker 
 
at the Hy-Vee store in Cherokee, Iowa.  She worked part-time 
 
to begin with and was paid around $5.00 per hour.  Her 
 
duties included stocking shelves, stocking the drawers under 
 
the shelves, and dusting as well as checking customers' 
 
groceries. After one year she began to work regular time, as 
 
opposed to part-time.  
 
         
 
In 1987 she became the non-food manager.  She was 
 
responsible for all of the health and beauty aids products.  
 
She did not supervise any employees.  Her supervisors were 
 
the store manager, the assistant store manager, the shift 
 
manager and the back-up shift manager, depending on who was 
 
on duty while she worked.  The store had other managers such 
 
as the meat manager, frozen food manager and the produce 
 
manager.  
 
         
 
Her responsibilities were to order and stock shelves of 
 
non-food or general merchandise, from rubber gloves to 
 
bicycles and televisions.  She would stock shelves from two 
 
of the three delivery trucks that came each week.  A high 
 
school girl would stock from the third truck each Friday 
 
         
 

 
         
 
 
 
 
 
 
 
night.  On occasion, she was called upon to check or sack 
 
groceries when the store was busy.  
 
         
 
On January 9, 1990, claimant was doing inventory work 
 
in a small basement room.  When she reached up to get a box 
 
of candy she slipped and fell and seven or eight boxes fell 
 
on top of her.  The accident happened in the morning 
 
approximately in the middle of her shift.  She stiffened up 
 
right away after the accident, but continued to work and 
 
went to work the following day.   She continued to be stiff 
 
and sore but thought that eventually the pain would clear up 
 
on its own.  Instead of improving the pain got progressively 
 
worse, spreading from her lower back down into and 
 
throughout her left leg to the ankle.  She eventually sought 
 
medical care because the pain was not diminishing.  
 
         
 
She received conservative treatment initially including 
 
analgesics and anti-inflammatory drugs, two periods of 
 
physical therapy, with heat and massage for approximately 
 
six weeks did not reduce her pain either.  Numerous epidural 
 
floods, ordered by Mark Wheeler M.D., did not significantly 
 
reduce her pain either.  (Joint Exhibit 1, page 1)  She was 
 
eventually referred to Ralph Reeder, M.D., a neurosurgeon.  
 
He ordered a myelogram and a CT scan which indicated 
 
significant disc herniation at L5-S1 and a small bulge at 
 
the L4-5 disc space. (Jt. Ex. 1, p. 2; Jt. Ex. 3, p. 1)  
 
         
 
On April 15, 1991, claimant underwent microsurgical 
 
diskectomy at L5-S1 with left L5 foraminotomy and L5 
 
hemilaminectomy.  (Jt. Ex. 4, p. 1)  After a recovery period 
 
in the hospital claimant was discharged with a good 
 
prognosis.  (Jt. Ex. 6)  She returned to Dr. Reeder on May 
 
28, 1991 complaining that she still was experiencing pain 
 
         
 

 
         
 
 
 
 
 
 
 
when she tried to sit.  The pain was in her left side and 
 
radiated down into her left calf.  Her pain was somewhat 
 
diminished from her preoperative state.  If her pain did 
 
not abate Dr. Reeder planned a follow-up MRI or myelogram. 
 
(Jt. Ex. 7) 
 
 
 
She was given a prescription for Darvocet, Medrol Dosepak and 
 
Orudis.  (Jt. Ex. 8)  Claimant's pain did not subside so Dr. 
 
Reeder ordered a myelogram followed by a CT scan which 
 
revealed a large pseudomeningocele that appeared to be 
 
compressing the S1 nerve root.  (Jt. Ex. 9; 11)  
 
         
 
Claimant underwent additional surgery on June 19, 1991 
 
where the pseudomeningocele was repaired and a lumbar drain 
 
inserted.  (Jt. Ex. 13)  After a recovery period in the 
 
hospital claimant was released with relief of her leg pain 
 
and only minimal back pain still present.  Her prognosis  
 
for continued recovery was good. (Jt. Ex. 15, p. 2)
 
         
 
A recheck visit on August 1, 1991 revealed that 
 
claimant was making slow progress and had less pain than 
 
before surgery.  She was to remain off work and undergo 
 
physical therapy.  (Jt. Ex. 16)
 
         
 
On September 5, 1991, Dr. Reeder released claimant to 
 
return to work part-time with a 20 pound weight lifting 
 
restriction.  (Jt. Ex. 17)  Claimant was unable to continue 
 
working in September due to leg pain.  She returned to Dr. 
 
Reeder on October 4, 1991 where he changed her medication 
 
and kept her off work for an additional two weeks.  (Jt. Ex. 
 
18)  Dr. Reeder thought that claimant would be able to 
 
return to work on October 18, 1991, but if she needed 
 
further time off he would consider sending her to a work 
 
hardening program.  (Jt. Ex. 19)  She was released to return 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
to work part-time with no lifting in November of 1991.  (Jt. 
 
Ex. 21)
 
         
 
Through January, February, March and April of 1992 
 
claimant attended a work-hardening program at Back Care, 
 
Inc. under the supervision of John D. Kuhnlein, D.O. (Jt. 
 
Ex. 24-28)  She made good progress during the program and 
 
when released had a 25 pound lift/push/pull/carry 
 
restriction.  She was also instructed to wear supportive 
 
footwear in the work place to provide a good base for her to 
 
stand on. (Jt. Ex. 28)
 
         
 
On April 24, 1992, Dr. Reeder opined that claimant had 
 
reached maximum medical improvement and he did not recommend 
 
further surgical intervention.  Per the AMA Guides to the 
 
Evaluation of Permanent Impairment, Third edition, Dr. 
 
Reeder determined that claimant had a 12 percent functional 
 
impairment rating as a result of both of her surgeries.  He 
 
encouraged her to continue her work activities.  (Jt. Ex. 
 
23)  Claimant returned to work full time in March, 1992.
 
         
 
Claimant still works for Hy-Vee as the non-food 
 
manager, the same job she held prior to her injury.  She 
 
works 40 hours per week and is currently paid $7.40 per 
 
hour.  She rarely misses work because of her back injury.  
 
She continues to suffer from ongoing pain, but that has not 
 
stopped her from being able to complete her job duties and 
 
responsibilities.  
 
         
 
Checking groceries is the most bothersome activity she 
 
is called on to perform.  Checking groceries does not 
 
violate her work restrictions.  She has not seen any 
 
physician for her back since being released by Dr. Reeder.  
 
         
 

 
         
 
 
 
 
 
 
 
She currently takes no prescription medication.  Defendant 
 
employer complies with her work restrictions.  If claimant 
 
has merchandise or products to lift that weigh over 25 
 
pounds she can ask other employees for assistance.
 
         
 
Only two of the many types of managers employed by Hy-
 
Vee are paid by the hour; non-food manager and the frozen 
 
foods manager.  The other managers are all paid more than 
 
claimant is.  Contrary to claimant's assertion, there is no 
 
evidence to support a finding that claimant is paid less or 
 
by the hour because she sustained a work-related injury.  By 
 
her own estimation claimant has not lost any wages as a 
 
result of her injury. (Jt. Ex. 51, p. 41)
 
         
 
Claimant would not be able to be a shift manager now 
 
because of her lifting restrictions and the lifting 
 
requirements of a shift manager.  Claimant is not pursuing 
 
becoming a shift manager now, nor did she pursue becoming a 
 
shift manager during 1988 or 1989 prior to her work injury. 
 
(Cl. Ex. 51, p. 41) There is no evidence to indicate that 
 
claimant would have become a shift manager if she had not 
 
sustained a work-related injury.
 
         
 
Bob Teeselink, an assistant store manager, testified 
 
that claimant has received all raises that she is entitled 
 
to. Claimant makes no assertion that she was denied a raise 
 
because of her work-related injury.
 
         
 
Joint exhibit 52 is claimant's payroll record.  On 
 
different occasions claimant and other employees were given 
 
a monthly bonus.  Payment of the bonuses is strictly at the 
 
discretion of the store manager.  The store manager can 
 
decide at any time to stop paying or start paying bonuses.  
 
         
 

 
         
 
 
 
 
 
 
 
The bonuses received by claimant were irregular bonuses.
 
         
 
                  ANALYSIS AND CONCLUSIONS OF LAW
 
         
 
The first issue to be addressed is claimant's 
 
entitlement to permanent partial disability benefits.
 
         
 
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. App. P. 14(f).
 
         
 
Since claimant's injury is to her back, an evaluation 
 
of her 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 dis
 
ability include the employee's medical condition prior to 
 
the injury, immediately after the injury, and 
 
presently; the situs of the injury, its severity and the 
 
length of the healing period; the work experience of the 
 
employee prior to the injury and after the injury and the 
 
potential for rehabilitation; the employee's qualifications 
 
intellectually, emotionally and physically; earnings prior 
 
and subsequent to the injury; age; education; motivation; 
 
functional impairment as a result of the injury; and 
 
inability because of the injury to engage in employment for 
 
which the employee is fitted.  Loss of earnings caused by a 
 
job transfer for reasons related to the injury is also 
 
relevant.  Likewise, an employer's refusal to give any sort 
 
of work to an impaired employee may justify an award of 
 
disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
(Iowa 1980).  These are matters which the finder of fact 
 
considers collectively in arriving at the determination of 
 
the degree of industrial disability.
 
         
 
There are no weighting guidelines that indicate how 
 
each of the factors are to be considered.  Neither does a 
 
rating of functional impairment directly correlate to a 
 
degree of industrial disability to the body as a whole.  In 
 
other words, there are no formulae which can be applied and 
 
then added up to determine the degree of industrial 
 
disability.  It therefore becomes necessary for the deputy 
 
or commissioner to draw upon prior experience as well as 
 
general and specialized knowledge to make the finding with 
 
regard to degree of industrial disability.  See Christensen 
 
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
Industrial Commissioner Decisions 654 (App. February 28, 
 
1985).
 
         
 
Compensation for permanent partial disability shall 
 
begin at the termination of the healing period.  
 
Compensation shall be paid in relation to 500 weeks as the 
 
disability bears to the body as a whole.  Section 85.34.
 
         
 
Claimant has had two back surgeries.  She is not 
 
completely pain free and may never be.  
 
         
 
She has returned to the same job she had prior to her 
 
injury.  She now makes more money than she did prior to her 
 
injury.  Her employer complies fairly well with her work 
 
restrictions.  She has a 12 percent functional impairment 
 
rating from Dr. Reeder, her treating physician.  
 
         
 
Her recovery period from both surgeries was fairly 
 
lengthy.  It took almost one year before she was able to 
 
return to work full time.  Her current work restrictions, 
 
that is, no lifting, pulling, pushing or carrying over 25 
 
pounds make her a less attractive employee to other 
 
potential employers. 
 
         
 
Based on all the factors that comprise industrial 
 
disability, it is determined that claimant has sustained a 
 
10 percent industrial disability.
 
         
 
The final issue to be determined is whether claimant's 
 
bonuses should be included in the calculation of her weekly 
 
gross earnings to determine her rate of workers' 
 
         
 

 
         
 
 
 
 
 
 
 
compensation benefits.  
 
         
 
Iowa Code section 85.61(3) provides:
 
         
 
"Gross earnings" means recurring payments by 
 
employer to the employee for employment, before 
 
any authorized or lawfully required deduction or 
 
withholding of funds by the employer, excluding 
 
irregular bonuses, retroactive pay, overtime, 
 
penalty pay, reimbursement of expenses, expense 
 
allowances, and the employer's contribution for 
 
welfare benefits. (Emphasis added.)
 
         
 
The bonus program of defendant employer is very much 
 
like the bonus program run by Rolscreen Company in Noel v. 
 
Rolscreen, 475 N.W.2d 666 (Iowa App. 1991).  In determining 
 
that the Rolscreen bonus was an irregular bonus the court 
 
held, "[t]he bonus program is a voluntary program that can 
 
be discontinued by the employer for any reason.  The program 
 
can be changed or altered in any manner or replaced with 
 
another fringe benefit plan at the employer's discretion."  
 
Id. at 667.
 
         
 
Like the bonuses in the Noel case, claimant's bonuses 
 
were of varying amounts and dependent upon the manager's 
 
discretion.  At any time the manager without reason may stop 
 
the bonuses for all employees.  The evidence supports the 
 
finding that claimant's bonuses were "irregular bonuses" as 
 
that term is used in Iowa Code section 85.61(3) and thus 
 
should not be included in the calculation of her gross 
 
earnings.  Claimant's gross weekly wages were $200.77 and 
 
with two exemptions her proper rate of weekly benefits is 
 
         
 

 
         
 
 
 
 
 
 
 
$138.42.
 
         
 
                  ORDER
 
         
 
THEREFORE, it is ordered:
 
         
 
That defendants pay claimant fifty (50) weeks of 
 
permanent partial disability at the rate of one hundred 
 
thirty-eight and 42/100 dollars ($138.42) commencing on 
 
March 15, 1992.
 
         
 
That defendants be given credit for benefits previously 
 
paid.
 
         
 
That defendants pay accrued benefits in a lump sum.
 
         
 
That defendants pay interest as set out in Iowa Code 
 
section 85.30.
 
         
 
That defendants pay the costs of this action.
 
         
 
That defendants file claim activity reports as required 
 
by the agency.
 
         
 
Signed and filed this ____ day of May, 1995.
 
         
 
                  
 
         
 
         
 
                            ________________________________
 
                            TERESA K. HILLARY
 
                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                  
 
Copies To:
 
         
 
Mr Wills J Hamilton
 
Attorney at Law
 
606 Ontario St
 
P O Box 188
 
Storm Lake IA 50588
 
         
 
Mr Robert C Landess
 
Attorney at Law
 
2700 Grand Ave
 
Des Moines IA 50312
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803; 5-3001
 
                                         Filed May 17, 1995
 
                                         Teresa K. Hillary
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
                  
 
BETTY BERG,     
 
         
 
     Claimant, 
 
         
 
vs.                                     File No. 981109
 
         
 
HY-VEE FOOD STORES, INC.,            A R B I T R A T I O N
 
         
 
     Employer,                          D E C I S I O N
 
         
 
and        
 
         
 
EMPLOYERS MUTUAL INSURANCE     
 
COMPANIES, 
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
-------------------------------------------------------------------         
 
5-1803; 5-3001
 
         
 
Claimant, age 49, suffered a ruptured disc after some boxes 
 
fell on her.  She had two surgeries and returned to the same 
 
job she had prior to the injury.  She now makes more money.  
 
She has a 25 pound permanent lift/push/pull/carry 
 
restriction.  Claimant awarded 10 percent industrial 
 
disability.  Claimant received bonuses that were determined 
 
to be irregular bonuses pursuant to Iowa Code section 85.61 
 
and not included in the calculation of her gross earnings.
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       _________________________________________________________________
 
               
 
       GARY BARBEE,     
 
               
 
          Claimant, 
 
                                          File Nos. 1060107
 
       vs.                                          1053452
 
                                                     981275
 
       JOHN MORRELL & CO.,   
 
                                        A R B I T R A T I O N
 
          Employer, 
 
                                           D E C I S I O N
 
       and          
 
               
 
       HOME INSURANCE CO. AND     
 
       NATIONAL UNION FIRE    
 
       INSURANCE COMPANY,     
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ________________________________________________________________
 
                         STATEMENT OF THE CASE
 
            
 
            This is a consolidated proceeding in arbitration brought by 
 
       Gary Barbee, claimant, against John Morrell & Co., employer, and 
 
       Home Insurance Company and National Union Fire Insurance Company, 
 
       insurance carriers, defendants, for workers' compensation 
 
       benefits as a result of alleged injuries on March 14, 1991, 
 
       February 2, 1993 and May 4, 1993.  On April 6, 1995 a hearing was 
 
       held on claimant's petitions and the matter was considered fully 
 
       submitted at the close of this hearing.
 
            
 
            At the request of claimant and without objection from 
 
       defendants, petitions for alleged injuries on October 14, 1991 
 
       and April 22, 1992, file numbers 1053453 and 1054918 
 
       respectively, will be dismissed herein.
 
            
 
            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.  On March 14, 1991 and February 2, 1993, claimant 
 
       received injuries arising out of and in the course of employment 
 
       with Morrell.
 
            
 
            2.  Claimant is seeking additional temporary total or 
 
       healing period benefits only from May 4, 1993 until June 7, 1993, 
 
       and defendants agree that he was not working at this time. 
 
            
 

 
 
 
 
 
 
 
 
 
            3.  If any of the injuries are found to have caused 
 
       permanent disability, the type of disability is either a 
 
       scheduled member disability to right or left arm.
 
            
 
            4.  If permanent partial disability benefits are awarded for 
 
       the March 14, 1991 injury, they shall begin as of November 14, 
 
       1991.  If permanent partial disability benefits are awarded for 
 
       either the February 2, 1993 or May 4, 1993 injuries, they shall 
 
       begin as of November 14, 1991.
 
            
 
            5.  At the time of above injuries claimant was married and 
 
       entitled to four exemptions.  Claimant's weekly rates of 
 
       compensation for the March 14, 1991, February 2, 1993 and May 4, 
 
       1993 injuries are $241.98, $266.09 and $245.13 respectively.
 
            
 
            6.  There is no currently pending dispute as to medical 
 
       benefits.
 
       
 
                                 ISSUES
 
            
 
            The only issue submitted by the parties for determination in 
 
       this proceeding is the extent of claimant's entitlement to 
 
       disability benefits.
 
       
 
                           FINDINGS OF FACT
 
            
 
            Having heard the testimony and considered all of the 
 
       evidence, the deputy industrial commissioner finds as follows:
 
            
 
            A credibility finding is unnecessary to this decision as 
 
       defendants did not place claimant's credibility at issue during 
 
       the hearing.
 
            
 
            Claimant, Gary Barbee, worked as a laborer for Morrell in 
 
       its meat processing plant in Sioux City, Iowa from 1986 until May 
 
       4, 1993, at which time he was terminated as there was no work 
 
       available for him that would be consistent with his physician 
 
       imposed work restrictions against repetitive use of his hands.
 
            
 
            The first injury occurred as a result of heavy gripping and 
 
       grasping of his left hand resulting in chronic tendinitis.  
 
       Following the onset of wrist and hand pain, swelling and 
 
       numbness, Gary was taken off work initially for almost three 
 
       months.  He returned to one-handed work in June 1991.  Gary 
 
       remained on light, one-handed duty during the balance of his 
 
       employment with Morrell.  Gary's care was transferred to W. O. 
 
       Samuelson, M.D., in June 1991.  Dr. Samuelson treated Gary 
 
       conservatively for this condition with splints, medication and 
 
       physical therapy until January 1991 when he opined that claimant 
 
       suffered a four percent permanent impairment to the hand as a 
 
       result of his chronic tendinitis.  He also felt that Gary, at 
 
       that time, should be permanently restricted from repetitive left 
 
       hand use.  Another one time evaluating physician in November 1991 
 
       felt that claimant had no impairment and felt the problem to be 
 
       trivial.  The opinions of this evaluator are rejected as he had 
 
       so little contact with claimant and his views appear rather 
 
       extreme.  Gary also complains of some left elbow problems but no 
 
       physician has rated such a condition.  Consequently, it is found 
 
       that the injury of March 14, 1991 was a cause of a four percent 
 
       loss of use to the left hand.
 
            
 
            The second injury on February 2, 1993 was for pain, swelling 
 
       and numbness in the right hand, similar to the left hand 
 
       problems.  Treatment of the right hand condition was diagnosed as 
 
       carpal tunnel syndrome by Raymond M. P. Sherman, M.D.  Dr. 
 
       Sherman also diagnosed a left elbow problem called Guyon's canal 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       compression syndrome.  Treatment of this condition has also 
 
       remained conservative although Dr. Sherman recommends surgery.  
 
       To date, Gary has refused surgery on the basis that he has had 
 
       similar symptoms on the left and Dr. Samuelson has not 
 
       recommended surgery.  He also knows friends who have had surgery 
 
       for similar conditions and the surgery has made them worse.
 
            
 
            It was not until the imposition of restrictions against 
 
       repetitive gripping, grasping and lifting of his right hand and 
 
       arm on May 4, 1993 that claimant lost his job at Morrell.  Dr. 
 
       Sherman made these restrictions permanent in June 1993.  Although 
 
       Gary had a right hand injury and symptoms in February 1993, it 
 
       was not until May 4, 1993 that the entire set of right sided 
 
       symptoms, wrist and elbow, manifested themselves to the point 
 
       that claimant was compelled to leave Morrell's employment.  
 
       Therefore, the most appropriate injury date for the right arm 
 
       condition, especially for permanent effects, is May 4, 1993.  
 
       Therefore, it is found that on May 4, 1993, claimant suffered an 
 
       injury to this right arm which arose out of and in the course of 
 
       his employment with Morrell.
 
            
 
            Dr. Sherman was the only physician to rate the right arm 
 
       condition.  He felt that claimant suffered 20 percent impairment 
 
       to the right extremity due to the carpal tunnel and Guyon's 
 
       tunnel conditions.  However, he noted that the AMA Guides provide 
 
       ratings for permanency only after unsuccessful treatment and he 
 
       notes that claimant refuses the surgery he recommends.  He opines 
 
       that claimant's impairment after surgery on the right would be 
 
       reduced to 10 percent.
 
            
 
            The record indicates that two physicians, Samuelson and 
 
       Sherman, have treated similar wrist conditions but only one 
 
       recommends surgery.  Claimant's concern appears honest.  In the 
 
       expertise and experience of this deputy commissioner, bad 
 
       results, although rare, can indeed occur from even carpal tunnel 
 
       wrist surgery, such as the onset of scar tissue development or 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       even sympathetic reflex syndrome which can render the arm totally 
 
       useless.  It is therefore found that the refusal of surgery is 
 
       reasonable.
 
            
 
            It is therefore found that the injury of May 4, 1993, not 
 
       February 2, 1993, is a cause of a 20 percent permanent loss of 
 
       use of the right arm.
 
            
 
            Claimant was off work after May 4, 1993 and Dr. Sherman did 
 
       not arrive at the conclusion that the right arm condition was 
 
       permanent until June 7, 1993.  It is found that Gary did not 
 
       reach maximum healing for the May 4, 1993 injury until June 7, 
 
       1993.
 
       
 
                          CONCLUSIONS OF LAW
 
            
 
            I.  Claimant has the burden of proving by a preponderance of 
 
       the evidence that claimant received an injury arising out of and 
 
       in the course of employment.  The words "out of" refer to the 
 
       cause or source of the injury.  The words "in the course of" 
 
       refer to the time and place and circumstances of the injury.  See 
 
       generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 
 
       (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
       N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
       active or dormant health impairments. A work connected injury 
 
       which more than slightly aggravates the condition is considered 
 
       to be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
       620, 106 N.W.2d 591 (1961) and cases cited therein.
 
            
 
            It is not necessary that claimant prove his disability 
 
       results from a sudden unexpected traumatic event.  It is 
 
       sufficient to show that the disability developed gradually or 
 
       progressively from work activity over a period of time.  McKeever 
 
       Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
       McKeever court also held that the date of injury in gradual 
 
       injury cases is the time when pain prevents the employee from 
 
       continuing to work.  In McKeever the injury date coincided with 
 
       the time claimant was finally compelled to give up his job.
 
            
 
            In this case, the injury date as plead for the left hand 
 
       problems is correct under McKeever but for the right arm 
 
       condition the most appropriate date of injury, especially in 
 
       awarding permanency, is the date claimant lost his job at 
 
       Morrell.
 
            
 
            II. The parties stipulated that these injuries resulted in 
 
       scheduled member disabilities.  When the result of an injury is 
 
       loss to a scheduled member, the compensation payable is limited 
 
       to that set forth in the appropriate subdivision of Iowa Code 
 
       section 85.34(2).  Barton v. Nevada Poultry Company, 253 Iowa 
 
       285, 110 N.W.2d 660 (1961).  "Loss of use" of a member is 
 
       equivalent to "loss" of the member.  Moses v. National Union C.M. 
 
       Co., 184 N.W. 746 (1922).  Pursuant to Iowa Code section 
 
       85.34(2)(u), the industrial commissioner may equitably prorate 
 
       compensation payable in those cases where the loss is something 
 
       less than that provided for in the schedule.  Blizek v. Eagle 
 
       Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
            In the case sub judice, it was found that claimant suffered 
 
       a 4 percent permanent loss of use of his left hand from the 1991 
 
       injury.  Based on such a finding, claimant is entitled to 7.6 
 
       weeks of permanent partial disability benefits under Iowa Code 
 
       section 85.34(2)(l) which is four percent of 190 weeks, the 
 
       maximum allowable number of weeks of disability for an injury to 
 
       the hand in that subsection. 
 
            
 

 
 
 
 
 
 
 
 
 
            It was further found that claimant suffered a 20 percent 
 
       permanent loss of use of his right arm from the May 4, 1993 
 
       injury.  Based on such a finding, claimant is entitled to 50 
 
       weeks of permanent partial disability benefits under Iowa Code 
 
       section 85.34(2)(m) which is 20 percent of 250 weeks, the maximum 
 
       allowable number of weeks of disability for an injury to the arm 
 
       in that subsection.
 
            
 
            Claimant's entitlement to permanent partial disability also 
 
       entitles him to weekly benefits for healing period under Iowa 
 
       Code section 85.34 from the date of injury until claimant returns 
 
       to work; until claimant is medically capable of returning to 
 
       substantially similar work to the work he was performing at the 
 
       time of injury; or, until it is indicated that significant 
 
       improvement from the injury is not anticipated, whichever occurs 
 
       first.  As maximum healing did not occur until June 7, 1993, 
 
       healing period benefits will be awarded accordingly.
 
       
 
                                 ORDER
 
            
 
            1.  The claims in file numbers 1054918, 1053453 and 1060107 
 
       are dismissed.
 
            
 
            2.  In file number 981275, defendants shall pay to claimant 
 
       seven point six (7.6) weeks of permanent partial disability 
 
       benefits at a rate of two hundred forty-one and 98/l00 ($241.98) 
 
       per week from November 14, 1991, with defendants receiving credit 
 
       against this award for benefits already paid as set forth in the 
 
       hearing report.
 
            
 
            3.  In file number 1053452, defendants shall pay to claimant 
 
       fifty (50) weeks of permanent partial disability benefits at a 
 
       rate of two hundred forty-five and 13/l00 ($245.13) per week from 
 
       June 8, 1993 and healing period benefits at the same rate from 
 
       May 4, 1993 through June 7, 1993 with defendants receiving credit 
 
       against this award for benefits already paid as set forth in the 
 
       hearing report.
 
            
 
            4.  Defendants shall pay interest on weekly benefits awarded 
 
       herein as set forth in Iowa Code section 85.30. 
 
            
 
            5.  Defendants shall pay the costs of these actions pursuant 
 
       to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
       filing fees paid in all of these cases, including those 
 
       dismissed.
 
            
 
            6.  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 May, 1995.
 
       
 
       
 
       
 
       
 
       
 
                                   ______________________________
 
                                   LARRY P. WALSHIRE
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Daryl L  Hecht
 
       Attorney at Law
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       614 Pierce St
 
       PO Box 27
 
       Sioux City  IA  51102
 
       
 
       Ms. Rita C. Grimm
 
       Attorney at Law
 
       701 Pierce St  STE 200
 
       PO Box 3086
 
       Sioux City  IA  51102
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                           5-1803
 
                                           Filed May 19, 1995
 
                                           LARRY P. WALSHIRE
 
       
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       _________________________________________________________________
 
               
 
       GARY BARBEE,     
 
               
 
          Claimant, 
 
                                           File Nos. 1060107
 
       vs.                                           1053452
 
                                                      981275
 
       JOHN MORRELL & CO.,   
 
                                        A R B I T R A T I O N
 
          Employer, 
 
                                           D E C I S I O N
 
       and          
 
               
 
       HOME INSURANCE CO. AND     
 
       NATIONAL UNION FIRE    
 
       INSURANCE COMPANY,     
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ________________________________________________________________
 
       5-1803
 
       Nonprecedential, extent of disability case.
 
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       _________________________________________________________________
 
       GARY BARBEE,     
 
               
 
          Claimant, 
 
                                        File Nos. 1060107
 
       vs.                                        1053452
 
                                                   981275
 
       JOHN MORRELL & CO.,   
 
                                          O R D E R
 
          Employer, 
 
                                           N U N C
 
       and          
 
                                            P R O
 
       HOME INSURANCE CO. AND     
 
       NATIONAL UNION FIRE                 T U N C
 
       INSURANCE COMPANY,     
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ________________________________________________________________
 
       Due to typographical error, the following shall be changed in the 
 
       arbitration decision filed May 19, 1995:
 
       1.  The second sentence in the paragraph numbered "4" on page 2 
 
       of the decision related to stipulations of the parties is amended 
 
       by striking the words in the second clause, "November 14, 1991" 
 
       and inserting in lieu thereof the following words, "June 8, 
 
       1993."
 
       2.  The balance of the decision including the specific order 
 
       awarding benefits was not in error and shall remain unchanged.
 
       Signed and filed this ____ day of June, 1995.
 
       
 
                                   ______________________________
 
                                   LARRY P. WALSHIRE
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Daryl L. Hecht
 
       Attorney at Law
 
       614 Pierce St
 
       PO Box 27
 
       Sioux City  IA  51102
 
       
 
       Ms. Rita C. Grimm
 
       Attorney at Law
 
       701 Pierce St  STE 200
 
       PO Box 3086
 
       Sioux City  IA  51102
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARCOS M. MARIN,              :
 
                                          :
 
                 Claimant,                :      File No. 981301
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            IBP, INC.,                    :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant, Marcos Marin, seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against self-insured defendant employer, IBP, Inc.  He 
 
            asserts a work injury either to the wrist and hand or to the 
 
            neck, head and shoulder on April 2, 1991. 
 
            
 
                 This cause came on for hearing in Burlington, Iowa on 
 
            September 29, 1992.  Claimant had lost touch with his 
 
            attorney and failed to appear.  No testimony was taken.  The 
 
            record consists of joint exhibits 1-15 and, under Iowa Code 
 
            section 17A.12(6), pleadings, motions and intermediate 
 
            rulings filed in the contested case.  The latter includes 
 
            certain answers to interrogatories filed by claimant in 
 
            respond to a motion to compel.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship on April 2, 1991, to the rate of 
 
            compensation ($219.07 per week), and that entitlement to 
 
            medical benefits is no longer in dispute.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on April 2, 1991;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the asserted injury and temporary and/or permanent 
 
            disability;
 
            
 
                 3.  The nature and extent of each, if any.
 
            
 
                                 FINDINGS OF FACTS
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Claimant's petition, filed May 1, 1991, asserted a 
 
            cumulative injury to the following parts of the body: 
 
            "wrist, (finger locks) arm."  In his answer to interrogatory 
 
            9 served June 15, 1992, claimant asserted injuries to the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            neck, head and shoulder.  He made no mention of injuries to 
 
            the wrist or arm. 
 
            
 
                 The medical records introduced into evidence show that 
 
            claimant developed a ganglion cyst on the volar aspect of 
 
            the right hand which was surgically excised by Calvin E. 
 
            Atwell, M.D., on April 2, 1991.  He subsequently complained 
 
            of triggering and stiffness in the right four finger and 
 
            underwent a surgical release by Dr. Atwell on September 4, 
 
            1991.
 
            
 
                 Dr. Atwell wrote on July 20, 1992, that claimant had no 
 
            permanent impairment and was released to return to regular 
 
            duty with a restriction against use of a Wizard knife.  
 
            Claimant had been using the Wizard knife when he developed 
 
            tendonitis in his right hand and Dr. Atwell felt it 
 
            appropriate that he refrain from the use of that instrument 
 
            in hopes of preventing further problems.
 
            
 
                 No medical evidence causally relates either development 
 
            of the ganglion cyst or right fourth finger tendonitis to 
 
            work activities.
 
            
 
                 Much of the documentary evidence submitted is in 
 
            Spanish, a language in which this writer is functionally 
 
            illiterate.  An effort was made to review that evidence, 
 
            despite this shortcoming, but nothing contrary to the above 
 
            findings was immediately apparent.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 As noted, there is much confusion as to the nature of 
 
            Mr. Marin's complaints.  The record is essentially barren of 
 
            any work injury affecting the neck, head and shoulder.  
 
            There is evidence of physical problems to the right wrist 
 
            and right fourth finger, but no medical evidence causally 
 
            relates either problem to work activities.  Accordingly, 
 
            claimant has failed to meet his burden of proof in 
 
            establishing an injury arising out of and in the course of 
 
            employment.  Other issues are thereby rendered moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Road
 
            PO Box 1087
 
            Keokuk Iowa 52632-1087
 
            
 
            Mr John M Comer
 
            Attorney at Law
 
            PO Box 515 Dept #41
 
            Dakota City Nebraska  68731
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                3700
 
                                                Filed October 12, 1992
 
                                                DAVID R. RASEY
 
                  
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MARCOS M. MARIN,    
 
                      
 
                 Claimant,                   File No. 981301
 
                      
 
            vs.                          A R B I T R A T I O N
 
                      
 
            IBP, INC.,                      D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            3700
 
            Claimant failed to appear for hearing.  Record consisted of 
 
            documentary evidence and, under Iowa Code section 17A.12(6), 
 
            pleadings and motions.  The latter included answers to 
 
            interrogatories filed in a resistance to a motion to compel.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DWIGHT KRENZ,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 981304
 
            HOWARD CONSTRUCTION COMPANY,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Dwight 
 
            Krenz, claimant, against Howard Construction Company, 
 
            employer, and CNA Insurance Company, insurance carrier, for 
 
            benefits as the result of an injury which occurred on August 
 
            22, 1990.  
 
            
 
                 A hearing was held in Sioux City, Iowa, on June 16, 
 
            1992, and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by David A. Lester.  
 
            Defendants were represented by Michael P. Jacobs.  The 
 
            record consists of the testimony of Dwight Krenz, claimant; 
 
            Randy Howard, employer and joint exhibits 1 through 25.  
 
            Both attorneys submitted a brief description of disputes at 
 
            the time of the hearing.
 
            
 
                               PRELIMINARY MATTERS
 
            
 
                 The issue of causal connection between the alleged 
 
            injury and disability and the issue of rate, both of which 
 
            were designated as hearing issues on the hearing assignment 
 
            order, were agreed to and withdrawn as hearing issues at the 
 
            time of the hearing.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to temporary total 
 
            disability benefits, and if so, the extent of benefits to 
 
            which he is entitled.
 
            
 
                 Whether claimant is entitled to permanent partial 
 
            disability, and if so, the extent of benefits to which he is 
 
            entitled.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to an additional 30 days 
 
            of benefits for the reason that defendants did not give 
 
            written notice that they were converting temporary 
 
            disability benefits to permanent partial disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                    entitlement to temporary total disability
 
            
 
                 Is is determined that claimant is entitled to 33 weeks 
 
            of healing period benefits from the date of the injury on 
 
            August 22, 1990 until April 10, 1991, the date on which it 
 
            was determined that he had reached maximum medical 
 
            improvement.  Iowa Code section 85.34(1).
 
            
 
                 Claimant was operating a scraper for employer on August 
 
            22, 1990, stripping dirt to obtain clay for a brickyard near 
 
            Adel, Iowa, when a lip of the scraper, which weighed 
 
            approximately 1200 to 1600 pounds, fell on claimant and 
 
            employer and pinned them to the machine.  Claimant was 
 
            struck in the left shoulder and was initially pinned between 
 
            the lip and the scraper blade.  His left arm felt dead and 
 
            numb and he could not do anything with it.
 
            
 
                 Claimant was taken to the emergency room at Iowa 
 
            Methodist Hospital in Des Moines where the emergency room 
 
            physician diagnosed abrasions and brachial plexus contusion.  
 
            He was taken off work for 24 hours.  It was noted that he 
 
            had a full range of motion of the left arm but that he 
 
            complained that his left arm was numb and not fully 
 
            functioning.  An x-ray of the left shoulder indicated no 
 
            fracture or dislocation was identified.  An x-ray of the 
 
            cervical spine identified no fracture or dislocation.  
 
            Tylenol 3 was prescribed and claimant was released with 
 
            instructions to have his arm rechecked if the numbness 
 
            continued (exhibit 2).  
 
            
 
                 Claimant returned to the hospital emergency room on 
 
            August 27, 1990, to have his left hand paresthesia 
 
            rechecked.  He was continued off work for that week but told 
 
            to return if he saw no improvement (ex. 3).  Claimant 
 
            returned to the emergency room on September 4, 1990, with 
 
            continued radicular symptoms in his left arm.  It was noted 
 
            that he had a little less grip in his left hand and if he 
 
            turns his neck a certain way he experienced pain down his 
 
            left arm.  He was instructed to return on September 6, 1990, 
 
            for an MRI (ex. 4).
 
            
 
                 The MRI taken on September 6, 1990, of the cervical 
 
            spine, disclosed degenerative disc disease with minimal 
 
            posterior spurring at C4-5 and C6-7 with mild diffuse disc 
 
            bulges at each of these levels and what appeared to be a 
 
            superimposed left posterolateral disc herniation at C4-5 
 
            which did not produce any deformity or deviation of the 
 
            cervical cord.  The cervical cord was normal in appearance 
 
            (ex. 5).  
 
            
 
                 Claimant saw Robert A. Hayne, M.D., on September 7, 
 
            1990.  Dr. Hayne's physical examination noted there was 
 
            sensory blunting over the lateral aspect of the hand, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            forearm and arm on the left.  He added there was some 
 
            weakness for extension of the left forearm.  He noted there 
 
            was a questionable protrusion of the intervertebral discs 
 
            between the fourth and fifth lumbar segments on the left 
 
            side and stated claimant was a candidate for cervical 
 
            myelogram which was scheduled for September 19, 1990, to 
 
            determine whether claimant had a herniated disc in the neck 
 
            (ex. 8, p. 1).
 
            
 
                 On September 19, 1990, Dr. Hayne noted that examination 
 
            of the upper and lower extremities showed sensory diminution 
 
            over the lateral aspect of the left forearm and hand.  There 
 
            was some weakness of extension of the left forearm which was 
 
            estimated to be 50 percent of normal strength (ex. 6, p. 8).  
 
            The CT scan on September 19, 1990, of the cervical spine, 
 
            disclosed small posterior osteophytes present at the C3-4 
 
            and C4-5 levels which produced no evidence of nerve root or 
 
            cord compromise (ex. 6, p. 16).  
 
            
 
                 The cervical myelogram performed on September 19, 1990, 
 
            indicated there may be some minimal protrusion of the C5-6 
 
            intervertebral disc bilaterally, but no definite evidence of 
 
            nerve root protrusion was identified (ex. 6, p. 19).  
 
            
 
                 Claimant testified that Dr. Hayne said that he was 
 
            going to operate and perform an anterior discectomy the 
 
            following morning.  Claimant said he became scared, 
 
            questioned whether he needed surgery, and never returned to 
 
            see Dr. Hayne again as a treating physician.  
 
            
 
                 Claimant saw Scott P. Burtis, D.C., on September 10, 
 
            1990, one time.  Dr. Burtis diagnosed myospasm, C5 
 
            subluxation and thoracic subluxations.  He indicated 
 
            claimant had been totally unable to work from August 22, 
 
            1990 until September 12, 1990.  
 
            
 
                 Diane McGuire, R.N., C.I.R.S., a rehabilitation 
 
            specialist and a consultant, was retained to assist claimant 
 
            in October 1990.  She accompanied claimant to see William S. 
 
            Chalgren, M.D., a neurologist, on October 26, 1990.  He said 
 
            claimant had no complaints about his head, vision, hearing, 
 
            talking, chewing, swallowing, or breathing.  Claimant felt 
 
            his mind worked fine.  He reported claimant related that he 
 
            had some occasional headaches, but he's always had 
 
            occasional headaches and this was not worse.  
 
            
 
                 Dr. Chalgren's neurological examination was essentially 
 
            normal except some slight numbness to light touch in the 
 
            left upper extremity, but there was no definite loss of 
 
            feeling.  The doctor examined all of the radiological 
 
            reports that had been performed to date.  Dr. Chalgren 
 
            concluded:
 
            
 
                    I am not sure that Mr. Krenz has a specific 
 
                 nerve irritation from a specific ruptured 
 
                 intervertebral disc.  The findings are not 
 
                 conclusive.  I would suggest that he may have 
 
                 suffered from a traumatic neuritis of the upper 
 
                 part of the brachial plexus when he was struck by 
 
                 the machinery.  If that is the case he should 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 improve.  The examination did not reveal any 
 
                 definite loss of nerve function and if, in fact, 
 
                 the damage was a bruising of the nerve he should 
 
                 receive a good return of function....
 
            
 
            (exhibit 13, page 12)
 
            
 
                 Both claimant and McGuire did not want to continue with 
 
            Dr. Chalgren because he had white hair, appeared elderly and 
 
            claimant seemed to be the only patient that he had in the 
 
            office that day.  Therefore, McGuire, with the consent of 
 
            claimant, arranged for claimant to see Daniel J. McGuire, 
 
            M.D., an orthopedic surgeon, on November 28, 1990.  Dr. 
 
            McGuire (no relative of Diane McGuire) noted that claimant 
 
            has been off work since the injury but admitted that he was 
 
            getting slowly better.  The doctor examined claimant's 
 
            radiological studies and found nothing to indicate a huge 
 
            cutoff of a nerve root on any side.  He determined there was 
 
            a little wear and tear arthritis to account for his minor 
 
            neck pain.  Otherwise, his disc spaces looked relatively 
 
            healthy and the doctor concluded, "Everything looks very 
 
            good."  (ex. 10, p. 1).  
 
            
 
                 Dr. McGuire ordered an EMG and it disclosed some 
 
            changes on the C6 level which fit with his subjective 
 
            complaints of numbness and tingling in his thumb, index and 
 
            long finger on the left hand (ex. 7).  It also fit with Dr. 
 
            McGuire's finding of a little decreased sensation.  He 
 
            concluded that claimant may have some type of brachial 
 
            plexus injury that was not amenable to operative 
 
            intervention on his cervical spine.  His impression was left 
 
            C6 radiculopathy, source unclear, and his prognosis was 
 
            good, hopefully long-term disability will be minimal.  He 
 
            kept claimant off work and ordered isometric neck exercises 
 
            and some range and motion and strengthening exercises for 
 
            his left upper extremity (ex. 10, p. 2).
 
            
 
                 Claimant received physical therapy at the Fairmont 
 
            Community Hospital from December 5, 1990 through December 
 
            26, 1990.  Bruce A. Klutz, physical therapist, wrote on 
 
            December 26, 1990, that he treated claimant for intermittent 
 
            left arm numbness and triceps weakness and pain when he 
 
            turns his head to the left or uses his arms above the 
 
            horizontal.  Rotation of his head to the left was limited in 
 
            the last 10 degrees, otherwise, his cervical range of motion 
 
            was normal.  His strength and endurance were decreased and 
 
            markedly deconditioned.  The therapist's final remarks were 
 
            that claimant showed very little change, his motivation was 
 
            low and that he needs to work on reconditioning (ex. 14, p. 
 
            6).
 
            
 
                 Claimant returned to see Dr. McGuire on December 27, 
 
            1990, at which time he released him to work three to four 
 
            hours per day with no lifting greater than 30 pounds and if 
 
            he is able to tolerate that he may increase his workload 
 
            gradually.  He added he will do no damage to himself by 
 
            attempting to work.
 
            
 
                 Since claimant was moving to Sioux Falls, South Dakota, 
 
            Specialist McGuire arranged for claimant to see Joseph R. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Cass, M.D., on February 11, 1991, who agreed with Dr. 
 
            McGuire, Dr. Hayne and Dr. Chalgren that claimant probably 
 
            had a left C6 nerve root irritation.  Since Dr. Cass did not 
 
            do cervical discectomies, he wanted claimant to see a 
 
            neurosurgeon.  Claimant complained of low back pain and an 
 
            x-ray on February 11, 1991, showed narrowing and 
 
            degenerative disc disease at the L5-S1 level from anterior 
 
            osteophytic spur formation at the inferior aspect of the 
 
            body of L5 and the superior aspect of S1 (ex. 15, pp. 1, 2, 
 
            & 5).
 
            
 
                 Claimant did not see a neurosurgeon for the reason that 
 
            he was incarcerated from February 1991 to May 1991.  During 
 
            that period of time he developed temporary high blood 
 
            pressure and was treated by R.L. Zemke, M.D., from March 7, 
 
            1991 to April 18, 1991.  The notes of Dr. Zemke make no 
 
            mention of claimant's work injury or any complaints caused 
 
            by the work injury.
 
            
 
                 On April 10, 1991, Dr. McGuire wrote that he felt 
 
            strongly that this gentleman needs to get on with his life.  
 
            He said that claimant could perform his cardiovascular 
 
            exercises and isometric neck strengthening exercises while 
 
            in jail.  He said that initially claimant had some motor 
 
            weakness along the C7 level but that had resolved.  He had 
 
            some numbness and tingling along the C6 distribution but 
 
            that was almost completely resolved.  His EMG in November 
 
            1990 was basically normal except for perhaps some C6 slight 
 
            nerve root irritation, but in view of the fact that his 
 
            myelogram and MRI were negative, the doctor said there 
 
            cannot be too much wrong there.  Dr. McBride concluded:
 
            
 
                    I believe he has reached maximum medical 
 
                 improvement.  I believe, in light of the fact that 
 
                 he has minimal objective findings, that his 
 
                 permanent partial disability rating is at 1%, 
 
                 based on his questionably positive EMG and his 
 
                 slight decrease in his range of motion of his 
 
                 cervical spine.  I would place no long term 
 
                 restrictions on him.
 
            
 
            (ex. 10, p. 4).  
 
            
 
                 Dr. McBride added that claimant may do things that 
 
            cause him to have aches but they will do his body any 
 
            damage.  
 
            
 
                 Claimant saw Dr. Hayne again for an independent medical 
 
            examination on October 7, 1991.  His neurological 
 
            examination was essentially negative except for some marked 
 
            sensory blunting over the radial three fingers of the left 
 
            hand extending up into his forearm and arm over the medial 
 
            aspect.  He added that claimant has more or less constant 
 
            pain in the base of his neck and in the upper dorsal spine 
 
            area.  The neurological examination on October 7, 1991, 
 
            showed no significant change over the neurological 
 
            examination performed by Dr. Hayne on September 7, 1990.  A 
 
            repeat MRI performed on October 4, 1991, was compared to the 
 
            MRI made on September 6, 1990, and it was reported that the 
 
            cervical vertebrae continue to appear normal in alignment 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and position.  The disc at C6-7 bulges posteriorly a very 
 
            small amount, but did not appear to be producing significant 
 
            compression or distortion of the thecal sac.  The nerve 
 
            roots and thecal sac appeared normal.  The radiologist 
 
            reported that no acute abnormality was seen (ex. 24, p. 14).
 
            
 
                 Dr. Hayne's final diagnosis was spondylosis of the 
 
            cervical spine involving the third, fourth, fifth, and sixth 
 
            cervical interspaces to a relatively mild degree.  Dr. Hayne 
 
            added that this condition was aggravated by the trauma that 
 
            he sustained back on August 22, 1990.  The doctor had no 
 
            further specific recommendations insofar as treatment was 
 
            concerned.  
 
            
 
                 At no point does Dr. Hayne ever indicate that claimant 
 
            can return to work, substantially similar work, or that he 
 
            has attained maximum medical improvement.  Therefore, Dr. 
 
            Hayne's testimony gives us no assistance on when healing 
 
            period should end (ex. 8).  On the contrary, Dr. McGuire 
 
            specifically stated on April 10, 1991, "I believe he has 
 
            reached his maximum medical improvement." (ex. 10, p. 4).  
 
            Dr. McGuire also awarded a permanent impairment rating on 
 
            this date.  Consequently, it is determined that the healing 
 
            period ended on April 10, 1991.
 
            
 
                 Healing period generally terminates at the time the 
 
            attending physician determines that the employee has 
 
            recovered as far as possible from the effects of the injury.  
 
            Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 
 
            60, 65 (1981).  Stated another way, it is only at the point 
 
            at which a permanent disability can be determined that a 
 
            permanent disability award can be made.  Until such time, 
 
            healing period benefits are awarded to the injured worker.  
 
            Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 
 
            (Ia. Ct. App. 1984); Iowa Code section 85.34(1).  
 
            
 
                 Dr. McGuire is a board certified orthopedic surgeon who 
 
            authored a chapter for a medical text book on the surgical 
 
            and nonsurgical management of acute herniated disc and the 
 
            cervical spine and chronic neck pain (ex. 11, pp. 4-5; ex. 
 
            11, deposition ex. 1, p. 2).
 
            
 
                 Dr. McGuire acknowledged in his deposition that 
 
            claimant's condition could have gotten worse after he last 
 
            saw him on December 27, 1990, but if it did get worse it 
 
            would not be caused by or due to the injury which occurred 
 
            on August 22, 1990 (ex. 11,  pp. 32-34, 51-52).
 
            
 
                 The fact that Dr. McGuire last saw claimant on December 
 
            27, 1990, and gave his final opinion on April 10, 1991, does 
 
            not discredit his opinion.  He is the primary treating 
 
            physician and is the only physician giving definitive 
 
            evidence on the healing period.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to 33 weeks of healing period benefits from the date of the 
 
            injury, August 22, 1990, until it was determined by Dr. 
 
            McGuire on April 10, 1991, that claimant had attained 
 
            maximum medical improvement.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                           EXTENT OF PERMANENT DISABILITY  
 
            
 
                 It is determined that claimant has sustained a 10 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 50 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 In his deposition, Dr. McGuire testified that the 
 
            diagnosis of spondylosis is the same as wear and tear 
 
            arthritis at C5-6-7 caused by the frequent movement of the 
 
            neck and the fact that the neck supports the head (ex. 11, 
 
            pp. 5-6 & 9).  Furthermore, the x-ray changes shown on the 
 
            radiological studies were caused by aging as distinguished 
 
            from trauma (ex. 11, pp. 26, 36-37).  Dr. McGuire explained 
 
            that his final diagnosis was a brachial plexus contusion 
 
            because all of the objective diagnostic studies did not 
 
            disclose any nerve root impingement and therefore, no 
 
            surgery was indicated (ex. 11, pp. 44-45).  He pointed out 
 
            that this was very close to Dr. Chalgren's diagnosis of a 
 
            traumatic neuritis of the upper part of the brachial plexus 
 
            (ex. 11, p. 49).  Dr. McGuire assessed a 1 percent permanent 
 
            impairment based upon questionably positive slight EMG 
 
            changes and a slight decrease in the range of motion of his 
 
            cervical spine.  Dr. McGuire placed no long-term 
 
            restrictions on claimant (ex. 10, p. 4; ex. 11, pp. 25, 
 
            55-61).
 
            
 
                 Dr. Hayne determined that claimant had a permanent 
 
            impairment in the neighborhood of 7 percent (ex. 8, p. 4).  
 
            With respect to restrictions, Dr. Hayne stated: 
 
            
 
                    He should avoid excessive lifting, particularly 
 
                 of a repetitive nature.  The maximum lifting, 
 
                 should perhaps, not be over fifty pounds.  He 
 
                 should avoid repetitious extension of his neck.  
 
                 He is probably more or less indefinitely precluded 
 
                 from operating heavy equipment without there being 
 
                 risk of aggravating the spondylosis present in the 
 
                 cervical spine. 
 
            
 
            (exhibit 8, page 3).
 
            
 
                 In his deposition given on May 22, 1992, Dr. Hayne 
 
            testified that claimant was struck on the left shoulder and 
 
            the injury affected his left upper extremity and the left 
 
            side of his neck when he would tilt his head to the left.  
 
            No other parts of his body were affected.  He specifically 
 
            stated that claimant never reported any low back pain or 
 
            headaches (ex. 9, pp. 5-8, 27-29).  There was a mild or 
 
            moderate limitation of motion in claimant's neck (ex. 9, pp. 
 
            8-9).  There was some weakness in the left upper extremity 
 
            (ex. 9, p. 6).  Otherwise, the strength in the upper and 
 
            lower extremities was essentially normal (ex. 9, pp. 9, 
 
            11-12).
 
            
 
                 Dr. Hayne admitted that he never concluded with medical 
 
            certainty that claimant sustained a ruptured or protruded 
 
            disc as a result of this injury (ex. 9, p. 14).  Dr. Hayne 
 
            did not believe that the injury caused claimant's 
 
            spondylosis but he did feel that the trauma of the injury 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            aggravated claimant's preexisting condition of spondylosis.  
 
            Dr. Hayne either did not understand the question or was 
 
            unable to explain how the trauma of this injury physically 
 
            affected the narrowed disc space (ex. 9, pp. 16-18).  The 
 
            doctor's best reply was "For some reason or other the pain 
 
            from it has worsened with a given trauma, but just why that 
 
            takes place, I'm not in a position to say." (ex. 9, p. 18).  
 
            
 
                 Dr. Hayne added that claimant was not a candidate for 
 
            any surgical treatment and that he did not prescribe any 
 
            medications as a result of his examination on October 7, 
 
            1991 (ex. 9, pp. 19-20).  The doctor felt that exercises, 
 
            isometric or otherwise, would aggravate rather than 
 
            alleviate claimant's pain.  He said the head weighs 15 
 
            pounds and the neck is always exercised by holding up the 
 
            head which constitutes a constant isometric exercise of the 
 
            neck (ex. 9, p. 21). 
 
            
 
                 Dr. Hayne explained that the injury of August 22, 1990, 
 
            was not the cause of his restriction to the effect that 
 
            continued operation of heavy equipment entails a risk of 
 
            aggravating the spondylosis present in the cervical spine.  
 
            Dr. Hayne explained, 
 
            
 
                    I don't feel that it's caused by the trauma to 
 
                 the shoulder of August 22 of '90.  The condition 
 
                 at the time of the accident on August 22, '90, had 
 
                 been there for an indefinite period before that 
 
                 and it's on the basis of the spondylosis that's in 
 
                 the neck of Mr. Krenz that I have the 
 
                 recommendation about the heavy equipment operating 
 
                 mainly.
 
            
 
            (ex. 9, pp. 21-22, 28).  
 
            
 
                 Dr. Hayne testified that he has been a board certified 
 
            neurosurgeon since 1949 (ex. 9, pp. 23-24).  
 
            
 
                 Dr. Hayne explained that his impairment rating in the 
 
            neighborhood of 7 percent did not mean more than 7 percent 
 
            or less than 7 percent, but simply 7 percent period (ex. 9, 
 
            p. 32).
 
            
 
                 In summary then, Dr. McGuire assessed a one percent 
 
            permanent impairment of the neck based upon a questionably 
 
            positive EMG and a slight decrease in his range of motion of 
 
            the cervical spine (ex. 10, p. 4).  Dr. McGuire explained 
 
            that many physicians would give claimant a zero percent 
 
            disability rating.  He explained, "Sometimes when people 
 
            have persistent complaints even though they really don't 
 
            have much on objective examination, we're allowed to -- 
 
            we're allowed to let the subjective enter into our 
 
            evaluation."  (ex. 11, pp. 18-19).  Dr. Hayne gave a 7 
 
            percent impairment rating but did not explain the basis for 
 
            his rating (ex. 9, pp. 21, 31, 32).  
 
            
 
                 Dr. McGuire would place no long-term restrictions on 
 
            claimant.  Dr. Hayne's restrictions, if they would be 
 
            interpreted as such, were not caused by the trauma of August 
 
            22, 1990, according to Dr. Hayne (ex. 9, pp. 21-22).  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Moreover, Dr. Hayne's restrictions are worded more as 
 
            recommendations rather than restrictions.  They are not 
 
            worded as permanent restrictions but rather, suggestions.  
 
            Furthermore, he did not say that claimant could not lift 
 
            more than 50 pounds, nor did he say claimant was precluded 
 
            from operating heavy equipment.  Dr. Hayne simply suggested 
 
            that if claimant did these things, there was a risk of 
 
            aggravating his preexisting spondylosis of the cervical 
 
            spine again (ex. 8, p. 3).  
 
            
 
                 Dr. McGuire pointed out that anybody who operates heavy 
 
            equipment, lifts more than 50 pounds or plays football 
 
            assumes certain risks.  He further pointed out that claimant 
 
            may have to suffer some aches and pains before he gets 
 
            completely reconditioned (ex. 11, pp. 55-61).  Dr. McGuire 
 
            adhered to his opinion that long-term he would place no 
 
            specific restrictions on him as it pertains to the August 
 
            1990 work incident (ex. 11, p. 57).  Consequently, it is 
 
            determined that claimant has no work restrictions caused by 
 
            the injury of August 22, 1990.
 
            
 
                 Claimant, born January 10, 1955, was 35 years old at 
 
            the time of the injury and 37 years old at the time of the 
 
            hearing and at the time of this decision.  The fact that 
 
            this injury occurred at approximately the midpoint of 
 
            claimant's earnings career tends to increase claimant's 
 
            industrial disability.  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Walton v. B & H Tank Corp., II 
 
            Iowa Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Dec. 1989).
 
            
 
                 Claimant completed 11 years of education and obtained a 
 
            GED in 1975.  He obtained no further formal education after 
 
            that.  The variety of his past employments and his scores on 
 
            vocational tests, which show that he has above average 
 
            intelligence, indicate that claimant is capable of 
 
            retraining if he wants to pursue different employment.  
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).  Thus educational 
 
            background and claimant's capacity for retraining are two 
 
            factors which will not increase his industrial disability.
 
            
 
                 Claimant is not foreclosed from his prior employment of 
 
            heavy equipment operating.  There is a risk factor that his 
 
            preexisting spondylosis which was not caused by this 
 
            accident would be aggravated again, at least until he 
 
            becomes reconditioned, but it cannot be said that any doctor 
 
            absolutely told claimant that he was permanently restricted 
 
            from operating heavy equipment, even though claimant thinks 
 
            he is not able to do so and has chosen not to do so.  
 
            
 
                 After his automobile accident in 1988, in which he 
 
            suffered a right shoulder separation, J. Michael Donahue, 
 
            M.D., recommended that claimant not return to work operating 
 
            heavy equipment such as a scraper blade and permanently 
 
            restricted claimant from use of the right upper extremity at 
 
            or above shoulder level (ex. 1, pp. 8-9).  Nevertheless, 
 
            claimant testified that he did in fact return to heavy 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            equipment operating and performed this work until the date 
 
            of this injury. 
 
            
 
                 Claimant has a variety of past employments which 
 
            provide a number of transferable skills such as carpenter, 
 
            farm hand, railroad section hand, mechanical repair of 
 
            vehicles and heavy equipment, erecting pole buildings, 
 
            factory work, house painting, welding, operating light and 
 
            heavy machinery, and derrick hand on oil rigs.  Claimant 
 
            also has a reputation as an excellent cook.  Claimant 
 
            acknowledged that he had made no specific search for 
 
            employment other then a part-time job, 18 hours per week as 
 
            a janitor at the Fairmall in Fairmont, Minnesota, which pays 
 
            $5 per hour for sweeping, mopping and cleaning up the mall.  
 
            
 
                 Claimant testified that he was forced to quit this job 
 
            because of the pain.  His left arm is still numb, his neck 
 
            hurts when he turns it to the left and he suffers low back 
 
            pain.  Claimant acknowledged that he last saw a doctor for 
 
            treatment when he last saw Dr. McGuire in December 1990.
 
            
 
                 Specialist McGuire testified that when Dr. McGuire 
 
            recommended part-time work in December 1990, that she 
 
            contacted Howard, and Howard attempted to contact claimant.  
 
            Howard testified that he attempted to contact claimant to 
 
            return to work by leaving a message with his mother because 
 
            claimant had no telephone but that claimant never called 
 
            him.  Claimant admitted that after he was released from jail 
 
            in May 1991, he did not contact Howard nor did he try to 
 
            return to work for Howard.  Claimant admitted that the only 
 
            job that he applied for was the janitor job at Fairmall.  
 
            
 
                 At the request of defendants' counsel claimant 
 
            demonstrated that he had what appeared to be a nearly full 
 
            range of motion with respect to extension of the left arm 
 
            and internal and external rotation of the left arm, as well 
 
            as left side bending of his head at the neck.  
 
            
 
                 Howard testified that operating a scraper is performed 
 
            sitting down with your hands and arms generally below waist 
 
            level operating levers.  Although hydraulic levers work 
 
            easier than cable levers he did not think either one 
 
            required a great deal of strength.  He testified that he was 
 
            injured at the same time claimant was but returned to work 
 
            three days later and has operated dozers and scrapers.  He 
 
            was required to see a doctor one time a week for 
 
            approximately four to five weeks for burns.  
 
            
 
                 Howard testified that when he was called by Specialist 
 
            McGuire about claimant working three to four hours per day, 
 
            that he told McGuire to have claimant call him but claimant 
 
            has not done so.  Howard said he is still in business and he 
 
            still needs help.  Howard acknowledged that operating a 
 
            scraper is a rough ride and that he and all of his employees 
 
            complain about aches and pains.  Howard testified that 
 
            claimant was a good worker and performed his duties well.  
 
            
 
                 Diane McGuire, R.N., C.I.R.S., testified that she had 
 
            reviewed all of the medical records and all of the 
 
            depositions involved in this case (ex. 18, pp. 1-7).  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Specialist McGuire testified that Howard did not have 
 
            three-hour employment available for claimant in January 1991 
 
            because he had replaced claimant with a full-time employee 
 
            but that he did want claimant to contact him about 
 
            employment in the future (ex. 17, pp. 15, 17; ex. 18, pp. 
 
            10, 28).  Specialist McGuire testified that claimant had the 
 
            same access to the labor market that he had prior to this 
 
            injury because Dr. McGuire said that there were no 
 
            limitations (ex. 18, pp. 23, 35, 36).  She said that Dr. 
 
            McGuire further stated that claimant's return to activity 
 
            would not harm him any further (ex. 18, p. 23).  
 
            
 
                 Specialist McGuire disagreed with Dr. Hayne that 
 
            activity would aggravate claimant's condition and agreed 
 
            with Dr. McGuire that activity would improve his condition 
 
            (ex. 18, p. 24).  She said that claimant agreed to Dr. 
 
            McGuire as the treating physician after Dr. Hayne tried to 
 
            perform surgery because claimant was afraid and that he felt 
 
            that the surgery was not necessary (ex. 18, p. 25).  She 
 
            believed that claimant was honest in saying that he had 
 
            discomfort from the contusion to his brachial plexus but the 
 
            best course of action was to become active rather than to 
 
            stay home and be disabled (ex. 18, pp. 25-16).
 
            
 
                 Specialist McGuire further testified that claimant 
 
            would not have any loss of earnings if he attempted to 
 
            return to work gradually as it was recommended to him by Dr. 
 
            McGuire at the end of December 1990.  She repeated that 
 
            Howard said that he would like claimant to contact him to 
 
            visit about returning to work.  To the best of her knowledge 
 
            claimant never contacted Howard (ex. 18, pp. 28-29).  
 
            Specialist McGuire testified that claimant had difficulty 
 
            understanding the concept of chronic pain as explained to 
 
            him by Dr. McGuire and could not understand why Dr. McGuire 
 
            couldn't fix it and make it go away (ex. 18, p. 36).  
 
            
 
                 Specialist McGuire stated that claimant never 
 
            complained to her about any low back problems (ex. 18, pp. 
 
            38-39).  She first contacted claimant on October 15, 1990 
 
            (ex. 18, p. 43).  She testified that claimant said that he 
 
            did not want anyone who was knife happy cutting on him but 
 
            preferred to see somebody else (ex. 18, p. 44).  Even though 
 
            claimant never complained of back aches, he did complain of 
 
            occasional headaches (ex. 18, pp. 47-48).  
 
            
 
                 Specialist McGuire testified again that claimant had no 
 
            restrictions and therefore, he still had access to 
 
            everything that he had access to before the injury (ex. 18, 
 
            p. 50).  Specialist McGuire said that claimant did complain 
 
            about numbness and tingling in his left hand and arm but he 
 
            never did complain of dropping things and she never saw him 
 
            drop anything.  
 
            
 
                 Carma Mitchell, M.S., C.I.R.S., C.R.C., a vocational 
 
            consultant, examined claimant on January 31, 1992, at the 
 
            request of claimant's attorney and wrote a five-page 
 
            extensive report on March 20, 1992.  Consultant Mitchell 
 
            concluded that claimant had lost 52.3 percent access to the 
 
            labor market and that he had suffered a 36 percent loss of 
 
            earnings (ex. 19, dep. ex. 2).  The difficulty with 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Consultant Mitchell's evaluation is that it is based solely 
 
            upon an interview with the claimant and a letter from 
 
            claimant's attorney.  She conceded that she did not see any 
 
            of the medical records in this case, nor any of the 
 
            depositions in this case (ex. 19, pp. 5, 12).  
 
            
 
                 The difficulty with basing her evaluation on the letter 
 
            of the attorney is that his letter told Mitchell, "Dr. Hayne 
 
            states in his report that Mr. Krenz is no longer to work in 
 
            the area of heavy equipment operation and he has a 50 pound 
 
            restriction as far as the weight he can lift." (ex. 19, dep. 
 
            ex. 2).  As previously stated, the comments in Dr. Hayne's 
 
            final report appear to be good advice rather then absolute 
 
            permanent restrictions.  Dr. Hayne did not say that claimant 
 
            was permanently restricted from heavy equipment operation.  
 
            Nor did he place an absolute 50-pound permanent lifting 
 
            restriction on claimant.  Furthermore, Dr. Hayne testified 
 
            in his deposition that these restrictions were not caused by 
 
            the trauma to the shoulder of August 22, 1990, but rather 
 
            his comments about operating heavy equipment were 
 
            attributable to the spondylosis which had been present in 
 
            his neck for an indefinite period of time prior to this 
 
            injury (ex. 9, pp. 21-22).
 
            
 
                 Specialist McGuire disagreed totally with the 
 
            evaluation of Consultant Mitchell for the reason that 
 
            Mitchell had not examined the depositions and medical 
 
            records.  Furthermore, she disagreed with the computer 
 
            system of matching that Mitchell used to arrive at her 
 
            conclusions because it was highly theoretical and not based 
 
            upon actual conditions in the employment market in 
 
            claimant's locality at the time it was made.
 
            
 
                 With respect to claimant's opportunity to return to 
 
            work for Howard, defendants' answers to interrogatories 
 
            dated August 29, 1991, said that Howard Construction had a 
 
            job right now for claimant and that he should contact Randy 
 
            Howard immediately (ex. 23, p. 5).  
 
            
 
                 Wherefore, based upon claimant's own testimony, the 
 
            evidence supplied by Specialist McGuire, the evidence 
 
            supplied by Consultant Mitchell, employer's testimony, and 
 
            the evidence supplied by Kathy Zeman of the vocational 
 
            rehabilitation service in Fairmont, Minnesota (ex. 24), it 
 
            is determined that claimant has not exhibited a strong 
 
            motivation to return to work in any capacity.  Since 
 
            claimant has not followed the recommendations of the 
 
            treating physician, Dr. McGuire, and attempted to become as 
 
            active as possible through employment, it is difficult to 
 
            ascertain how much, if any, industrial disability that 
 
            claimant has sustained.  Schofield v. Iowa Beef Processors, 
 
            Inc., II Iowa Industrial Commissioner Report 334, 336 
 
            (1981).
 
            
 
                 An employee seeking workers' compensation would do well 
 
            to make a diligent attempt to find employment.  Hild v. 
 
            Natkin & Co., I Iowa Industrial Commissioner Report 144 
 
            (Appeal Decision 1981); Beintema v. Sioux City Engineering 
 
            Co., II Iowa Industrial Commissioner Report 24 (1981); Cory 
 
            v. Northwestern States Portland Cement Company, Thirty-third 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Biennial Report of the Industrial Commissioner 104 (1976).
 
            
 
                 Employers are responsible for the reduction in earning 
 
            capacity caused by the injury; they are not responsible for 
 
            a reduction in earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).  
 
            
 
                 Wherefore, based upon (1) the fact that claimant 
 
            sustained a severe traumatic injury when the lip of the 
 
            blade weighing several hundred pounds struck him on the left 
 
            shoulder; (2) that is was diagnosed that claimant sustained 
 
            a contusion of the brachial plexus and a neuritis of the 
 
            brachial plexus; (3) that claimant has no objective injury 
 
            as demonstrated on plain x-rays, a CT scan, myelogram, and 
 
            two MRI's; (4) that an EMG showed that claimant's C6 nerve 
 
            root might be slightly irritated and a very slight loss of 
 
            range of motion of the cervical spine; (5) that Dr. McGuire, 
 
            the treating physician, assessed a 1 percent permanent 
 
            impairment for the above reasons; (6) that Dr. Hayne 
 
            assessed a 7 percent permanent impairment without stating 
 
            the basis for the rating, nor did he explain the mechanism 
 
            or method of how this injury aggravated claimant's 
 
            spondylosis; (7) that Dr. McGuire placed no permanent 
 
            long-term restrictions on claimant; (8) that Dr. Hayne made 
 
            some suggested precautions, but did not phrase them as 
 
            absolute permanent restrictions; (9) that Dr. Hayne said 
 
            that his comments about claimant being able to return to 
 
            work as a heavy equipment operator were based on the 
 
            spondylosis which preceded his injury and were not based 
 
            upon the trauma that occurred on August 22, 1990; (10) based 
 
            on claimant's age of 35 at the time of the injury; (11) 
 
            based upon claimant's eleventh grade education and GED; (12) 
 
            based on claimant's past employments and the number of 
 
            transferable skills available from those employments; (13) 
 
            based upon claimant's ability to return to any kind of work 
 
            he chooses to do in the competitive employment market; (14) 
 
            based upon claimant's lack of motivation in seeking active 
 
            employment since the injury; (15) and based on claimant's 
 
            personal testimony of chronic left upper extremity numbness 
 
            and weakness and pain when he tilts his head to the left; 
 
            (16) based upon all the evidence in this case; (17) based 
 
            upon all of the factors used to determine industrial 
 
            disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 
 
            3 State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985); Christensen v. Hagen, 
 
            Inc., vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (Appeal Decision March 26, 1985); and (18) 
 
            applying agency expertise, [Iowa Administrative Procedure 
 
            Act 17A.14(5)], it is determined that claimant has sustained 
 
            a 10 percent industrial disability to the body as a whole 
 
            and is entitled to 50 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 Claimant did not prove that his low back pain was 
 
            caused by this injury.  Claimant did prove that some of his 
 
            headaches may be occasioned by this injury and that fact is 
 
            taken into consideration in making this award.  It must also 
 
            be considered that the headaches arose during the period of 
 
            acute hypertension for which claimant was prescribed 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            medication by Dr. Zemke.  Claimant complains of dropping 
 
            things with his left hand and arm, but this fact does not 
 
            appear in any of the reports of Dr. Hayne, Dr. McGuire, Dr. 
 
            Chalgren, Dr. Cass, or Specialist McGuire.  Therefore, 
 
            claimant did not prove his inability to hold objects with 
 
            his left hand was caused by this injury.
 
            
 
                        30 days additional healing period
 
            
 
                 Claimant contends that he is entitled to an additional 
 
            30 days of healing period benefits for the reason that he 
 
            was not given 30 days notice prior to the termination of 
 
            healing period benefits. 
 
            
 
                 Defendants paid weekly benefits from August 23, 1990 
 
            through August 14, 1991, apparently without specifying the 
 
            nature of the payment.  When they determined that benefits 
 
            would be terminated, they wrote to claimant on August 14, 
 
            1991, that weekly benefits would be terminated, but they 
 
            would be sending him benefits for the next 30 days (ex. 25).
 
            
 
                 Since defendants would be entitled to a credit of any 
 
            overpayment of healing period benefits against any permanent 
 
            partial disability benefits to be paid [Iowa Code section 
 
            85.34(4)], it is not necessary that defendants give notice 
 
            of the conversion from healing period weekly benefits to 
 
            permanent partial disability weekly benefits prior to the 
 
            conversion date.  Betz v. Long John Silvers #10, file number 
 
            730062 (App. Dec. Dec. 19, 1986).
 
            
 
                 Wherefore, it is determined (1) that defendants did 
 
            give claimant 30 days notice prior to the termination of 
 
            benefits and (2) furthermore, it was not necessary to notify 
 
            claimant at what point they converted healing period 
 
            benefits to permanent partial disability benefits for the 
 
            reason that they were and are in this case, entitled to a 
 
            credit for the overpayment of healing period benefits [Iowa 
 
            Code section 85.34(4); Iowa Code section 86.13 (unnumbered 
 
            paragraph two); Auxier v. Woodward State Hospital School, 
 
            266 N.W.2d 139 (Iowa 1978).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of August 22, 1990, was the cause of 
 
            temporary disability and that claimant is entitled to 33 
 
            weeks of healing period benefits from the date of the injury 
 
            on August 22, 1990 to the date when Dr. McGuire determined 
 
            that claimant had attained maximum medical improvement on 
 
            April 10, 1991.  Iowa Code section 85.34(1).
 
            
 
                 That the injury of August 22, 1990, was the cause of 
 
            permanent disability and that claimant has sustained a 10 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 50 weeks of permanent partial disability 
 
            benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant is not entitled to an additional 30 days 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            of healing period benefits because employer did not give a 
 
            30-day notice from the date they intended to convert healing 
 
            period weekly benefits to permanent partial disability 
 
            benefits.  Iowa Code section 85.34(4); Iowa Code section 
 
            86.13 (unnumbered paragraph two); Auxier, 266 N.W.2d 139; 
 
            Betz, file number 730062.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant thirty-three (33) weeks 
 
            of healing period benefits at the stipulated rate of one 
 
            hundred ninety-nine and 15/100 dollars ($199.15) per week in 
 
            the total amount of six thousand five hundred seventy-one 
 
            and 95/100 dollars ($6,571.95) commencing on August 22, 
 
            1990.
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of one hundred ninety-nine and 15/100 dollars ($199.15) per 
 
            week in the total amount of nine thousand nine hundred 
 
            fifty-seven and 50/100 dollars ($9,957.50) commencing on 
 
            April 10, 1991.
 
            
 
                 That defendants are entitled to a credit for fifty-five 
 
            point five seven six (55.576) [sic] weeks of workers' 
 
            compensation weekly benefits paid to claimant prior to 
 
            hearing at the rate of one hundred ninety-nine and 15/100 
 
            dollars ($199.15) per week in the total amount of eleven 
 
            thousand sixty-seven and 96/100 dollars ($11,067.96).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. David Lester
 
            Attorney at Law
 
            108 N 7th St.
 
            Estherville, Iowa  51334
 
            
 
            Mr. Michael P. Jacobs
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            300 Toy National Bank Bldg.
 
            Sioux City, Iowa  51101
 
            
 
                 
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                                       51401 51402.40 51802 51402 51402.40 
 
                                       51803  3102 3103 4000
 
                                       Filed July 10, 1992
 
                                       Walter R. McManus, Jr.
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         DWIGHT KRENZ,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 981304
 
         HOWARD CONSTRUCTION COMPANY,  :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         CNA INSURANCE,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51401 51402.40 51802
 
         The injury caused temporary disability and claimant was awarded 
 
         healing period benefits from the date of the injury to the date 
 
         the treating physician determined that he had attained maximum 
 
         medical improvement.
 
         The fact that the doctor last saw claimant on December 27, 1990, 
 
         and that he stated on April 10, 1991, that claimant had attained 
 
         maximum medical improvement and awarded a permanent impairment 
 
         rating did not discount, discredit or destroy the physicians 
 
         opinion.  Furthermore, it was the only medical evidence on the 
 
         proper period of healing and he was the primary treating 
 
         physician.
 
         
 
         51402 51402.40 51803
 
         Claimant awarded 10 percent industrial disability on impairment 
 
         ratings of 1 percent and 7 percent, but the doctor said the 7 
 
         percent was due to preexisting spondylosis rather than this 
 
         injury.  Claimant is age 35, has eleven grades of school and a 
 
         GED, has above average intelligence, is capable of retraining, 
 
         has numerous transferable skills, is capable of performing any 
 
         work, but has demonstrated no motivation to work at all after 
 
         this injury.  His preexisting spondylosis may limit his ability 
 
         to perform certain kinds of work without pain.
 
         
 
         
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         3102 3103
 
         Claimant's vocational rehabilitation specialist stated that 
 
         claimant had a 52.3 percent loss of access to the labor market 
 
         and a 36 percent loss of earnings.  Defendants' vocational 
 
         rehabilitation specialist stated the claimant had no loss of 
 
         access to the labor market and had not sustained any loss of 
 
         earnings.  
 
         Defendants' vocational rehabilitation specialist was preferred 
 
         over claimant's specialist because defendants' specialist had 
 
         spent a great deal of time with claimant and had reviewed all of 
 
         the medical records and depositions.  By comparison, claimant's 
 
         specialist had only seen claimant one time and did not examine 
 
         the medical records or depositions.
 
         Claimant's specialist based her opinion on one interview with 
 
         claimant and a letter from claimant's attorney.  The letter from 
 
         claimant's attorney did not correctly summarize and interpret Dr. 
 
         Hayne's comments about restrictions.
 
         
 
         4000
 
         Claimant was not entitled to an additional 30 days of healing 
 
         period benefits because defendants did not notify him of the date 
 
         they converted weekly benefits from healing period benefits to 
 
         permanent partial disability benefits.  Cites.  Furthermore, 
 
         defendants did notify claimant 30 days before benefits were 
 
         terminated.