BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            NEAL CHAMBERS,                :
 
                                          :
 
                 Claimant,                :      File No. 981305
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            GRIFFIN PIPE PRODUCTS,        :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Neal 
 
            Chambers against Griffin Pipe Products, his former employer, 
 
            based upon an alleged injury of October 16, 1990.  Chambers 
 
            seeks compensation for healing period, permanent partial 
 
            disability and payment of medical expenses based upon the 
 
            alleged injury.  The employer denies his claim.  It was 
 
            stipulated however, that in the event the employer is 
 
            liable, the healing period runs from October 16, 1990 
 
            through April 22, 1991, and that any permanent partial 
 
            disability compensation awarded is payable commencing April 
 
            23, 1991.  It was stipulated that the rate of weekly 
 
            compensation is $222.64.  The only issue with regard to the 
 
            medical expenses is the employer's liability for the 
 
            condition.  The employer also asserts that in the event it 
 
            is held liable the permanent disability should be 
 
            apportioned between that caused by this alleged injury and 
 
            that which resulted from a 1986 motorcycle accident.
 
            
 
                 The case was heard at Council Bluffs, Iowa, on April 6, 
 
            1993.  The records consists of testimony from Neal Chambers, 
 
            joint exhibits 1 through 11 and claimant's exhibit A.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Neal Chambers appeared at the hearing and testified.  
 
            His appearance and demeanor were observed.  His testimony 
 
            was considered in light of the other evidence in the case.  
 
            He is found to be a credible witness.
 
            
 
                 Neal Chambers is a 36-year-old man who lives at 
 
            Glenwood, Iowa.  He graduated from high school but has no 
 
            other formal training or education.  After high school he 
 
            was involved in the construction industry working as a 
 
            carpenter or concrete worker, both of which are relatively 
 
            heavy work.  
 
            
 
                 Chambers was hired by Griffin Pipe Products on March 5, 
 
            1984.  He passed a pre-employment physical and drug screen.  
 
            Chambers worked in the labor pool for only three days and 
 
            was then made a material handler, a job which consisted 
 
            primarily of driving a fork lift.  As time passed, he also 
 

 
            
 
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            performed other jobs in the plant.
 
            
 
                 Neal Chambers had no remarkable back problems until 
 
            July 13, 1986, when he was involved in a motorcycle 
 
            accident.  His injuries included a shattered L1 vertebra.  
 
            Part of the treatment involved surgical fusion of the T12, 
 
            L1 and L2 vertebrae.  He was left with some atrophy of his 
 
            left thigh quadricep muscles.  As a result of that accident, 
 
            he was off work 14 months and 10 days.  It was only through 
 
            an extensive physical therapy and conditioning program that 
 
            he was able to return to work.  Behrouz Rassekh, M.D., one 
 
            of claimant's treating surgeons, initially provided him with 
 
            a 75-pound lifting restriction.  The employer required that 
 
            Chambers be able to lift 100 pounds in order to be 
 
            authorized to return to work.  A work capacity evaluation 
 
            was then performed which indicated that Chambers was capable 
 
            of lifting at the 120-pound level (exhibit 8).  The report 
 
            shows that Chambers was in a very good state of physical 
 
            condition at the time the test was conducted.  The range of 
 
            motion and velocity of back movements and maximum force 
 
            which he was able to generate with his back were all less 
 
            than optimum, however.  Nevertheless, Dr. Rassekh released 
 
            Chambers to work which would include lifting up to 100 
 
            pounds (ex. 12).  
 
            
 
                 Chambers was given a limited choice of jobs to which he 
 
            could return.  He selected the job of first helper in the 
 
            melting department.  His choice was based upon the belief 
 
            that the job offered less hazard of further injury to his 
 
            back than any of the other available jobs (ex. 5, pages 
 
            11-13).  Chambers got along reasonably well in that job.  
 
            
 
                 In July 1990 Chambers bid into a different position in 
 
            the labor pool.  This job required much more extensive use 
 
            of his back than the prior job.  After being in the job for 
 
            approximately one month, he developed back complaints which 
 
            seemed to be associated with repetitive bending and lifting 
 
            (ex. 5, pp. 15-18).  Chambers returned to Patrick W. Bowman, 
 
            M.D., the other specialist who had been involved with Dr. 
 
            Rassekh in treating the motorcycle accident injuries.  Dr. 
 
            Bowman suspected disc disease below the fusion.  He 
 
            recommended prescription medication and light activity for 
 
            the following couple of weeks [ex. 1(c)(1 & 2)].  Chambers 
 
            did not keep a follow-up appointment which had been 
 
            scheduled for late August 1990.  He continued to work 
 
            fearing that complaints or absence would jeopardize his 
 
            employment.  On October 16, 1990, after operating the 
 
            skimmer to remove slag from the quadrant ladle, the 
 
            claimant's back was so painful that he could hardly endure 
 
            it.  He told a coworker of his problem and reported the 
 
            problem to his foreman.  On the following day he reported 
 
            the injury to personnel manager, Tom Leedy.  Leedy told 
 
            Chambers that as far as the company was concerned, his back 
 
            problem did not happen at the plant.  Claimant has not 
 
            returned to work at Griffin Pipe since October 16, 1990.
 
            
 
                 Chambers sought care from his family physician Robert 
 
            Frysek, M.D.  Physical therapy relieved some of his pain.  
 

 
            
 
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            Chambers also returned to Dr. Rassekh.  He sought to see Dr. 
 
            Bowman but Dr. Bowman was unabailable.  Frank Iwerson, a 
 
            partner or associate of Dr. Bowman, saw Chambers.  Dr. 
 
            Iwerson felt that claimant's back problem was related to his 
 
            work and lifting.  He indicated that it had aggravated the 
 
            back condition.  Dr. Iwerson would limit claimant to 35 
 
            pounds of lifting.  He reported that the claimant's back is 
 
            not capable of heavy labor [ex. 1(c)(2)].  Dr. Bowman had 
 
            reported that claimant's job at Griffin Pipe had high 
 
            potential to aggravate the preexisting spinal condition and 
 
            that the work is responsible for claimant's increased level 
 
            of disability (ex. 1b).  
 
            
 
                 Dr. Rassekh reported that claimant had a preexisting 
 
            condition that was aggravated by lifting and repeated 
 
            bending.  He assigned a 5 percent permanent impairment 
 
            rating to the aggravation and indicated that the total 
 
            extent of disability is higher (ex. 2c).  Dr. Rassekh 
 
            recommended that claimant obtain retraining for an 
 
            occupation that did not require lifting over 50 pounds or 
 
            repeated bending and stooping (ex. 2e).  Dr. Rassekh later 
 
            reported that claimant's lifting could extend up to 75 
 
            pounds on a rare occasion (ex. 2b).  
 
            
 
                 Dr. Frysek agreed that claimant's manual labor at 
 
            Griffin Pipe was a material and substantial aggravation and 
 
            contributing factor to claimant's current back problems.  He 
 
            recommended that claimant give up the heavy job and seek 
 
            retraining (ex. 3b).  Dr. Frysek felt that claimant had a 10 
 
            percent permanent impairment as a result of the October 16, 
 
            1990 injury (ex. 3a).  
 
            
 
                 It is found that the physicians are correct in this 
 
            case.  There is no material discrepancy among them in their 
 
            assessments in this case.  It is found that claimant's 1986 
 
            motorcycle accident caused a preexisting condition in his 
 
            spine which was substantially aggravated by the repeated 
 
            bending and heavy lifting that Chambers performed in his 
 
            employment with Griffin Pipe Products.  The bulk of the 
 
            aggravation occurred after Chambers moved into the labor 
 
            pool in July 1990.  The physicians are correct in 
 
            recommending that Chambers not resume employment at Griffin 
 
            Pipe Company and that he either obtain retraining or find 
 
            some other lighter work consistent with their most recent 
 
            activity restrictions recommendations.  
 
            
 
                 Chambers made some effort at obtaining re-employment.  
 
            He has worked taking surveys and as a telemarketer.  He has 
 
            helped his father repair and refinish furniture.  All of the 
 
            jobs have been temporary, part-time work with pay in the 
 
            range of minimum wage.  The work search conducted by 
 
            Chambers has not been particularly aggressive or extensive.  
 
            It apparently has taken an extended period of time for 
 
            Chambers to realize and accept the fact that heavy work is 
 
            out of the question for him.  Chambers had been highly 
 
            motivated to return to work at Griffin Pipe Products as 
 
            evidenced by his remarkable recovery from the 1986 
 
            motorcycle accident and his continuing to work in 1990 
 

 
            
 
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            despite the onset of quite marked physical problems.  It 
 
            should be noted that following the 1986 injury Dr. Bowman 
 
            had reported that claimant should not plan on performing 
 
            heavy physical labor in the future (ex. 1d).  Dr. Bowman 
 
            later changed the recommendation based upon the functional 
 
            capacity evaluation results.  
 
            
 
                 Defendant employed vocational consultant Tricia Conway 
 
            to perform an assessment of claimant's employability.  Her 
 
            report is quite thorough and extensive.  It appears to 
 
            accurately reflect claimant's employment history, education 
 
            and medically imposed functional limitations.  It identifies 
 
            his transferable skills.  The findings made by Conway are 
 
            generally accurate and correct.  Unfortunately, no attempt 
 
            was made to place Chambers in a job.
 
            
 
                 Claimant's activity restrictions limit him to 
 
            performing work which has exertional requirements of medium 
 
            or lighter.  He is presently capable of performing some 
 
            medium to light jobs based upon his transferable skills.  
 
            Those jobs generally pay in the range of $5.50 to $7 per 
 
            hour.  At the time of his 1990 injury he was earning $10 per 
 
            hour.  Conway concludes that Chambers has experienced a 35 
 
            to 40 percent loss of earning capacity, of which 5 to 7 
 
            percent preexisted due to loss of access to jobs as a result 
 
            of the injuries in the motorcycle accident.  Conway felt 
 
            that if Chambers were to participate in a formalized 
 
            training program the extent of his loss of earning capacity 
 
            could be reduced as it would increase his access to the 
 
            labor market and allow for higher rates of pay (ex. 6). 
 
            
 
                 On July 11, 1991, the employer sent a letter to the 
 
            claimant directing him to report for work on July 15, 1991, 
 
            as a general laborer on the day shift, the position he had 
 
            last held with the company.  It is the position which 
 
            produced the aggravation of the preexisting spinal 
 
            condition.  The letter goes on to indicate that Dr. Rassekh 
 
            had imposed a lifting restriction  (ex. 11).  The letter 
 
            does not indicate, one way or the other, whether the 
 
            employer was going to make an accommodation for the claimant 
 
            or whether it was going to continue to abide by its policy 
 
            of requiring the ability to lift at least 100 pounds in 
 
            order to actually be allowed to work.  Since there is no 
 
            indication on the record that the employer was willing to 
 
            make an accommodation, it is found that the employer would 
 
            have continued to stand by its customary policy.  Claimant 
 
            did not report for work on that day.  His conduct in doing 
 
            so was quite reasonable under the circumstances.  
 
            
 
                                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 
 

 
            
 
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            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 

 
            
 
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            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets, 379 N.W.2d 
 
            368.
 
 
 
                 From the record in this case, it is abundantly clear 
 
            that the claimant's 1986 motorcycle accident caused 
 
            substantial injury to his spine and that the condition 
 
            resulting from that accident became a preexisting condition 
 
            for purposes of any subsequent injuries which claimant might 
 
            experience.  Preexisting conditions can be congenital, 
 
            developmental or result from other injuries.  A preexisting 
 
            condition is simply any physical abnormality or weakness 
 
            which makes the individual more susceptible to injury than 
 
            the individual would be without that preexisting abnormality 
 
            or weakness.  Despite the fact that claimant was released to 
 
            resume work with an authorization to lift as much as 100 
 
            pounds following the motorcycle accident, the mere fact of 
 
            the spinal fusion, the weakness in one of his legs and the 
 
            other abnormalities noted in the functional capacity 
 
            evaluation clearly show that Neal Chambers had some 
 
            impairment of physical function as a result of the quite 
 
            serious injuries he sustained in the 1986 motorcycle 
 
            accident.  Dr. Rassekh confirms that fact that some 
 
            disability had resulted from that accident in his April 22, 
 
            1991 report (ex. 2c).  The nature of claimant's work 
 
            activities at Griffin Pipe is not controverted by any 
 
            evidence in the record.  There is opinion evidence from four 
 
            physicians in the record in this case indicating that the 
 
            work aggravated the preexisting condition and the record is 
 
            devoid of any evidence to the contrary.  One could theorize 
 
            that the onset of claimant's complaints in August 1990 was 
 
            merely the progression of the results of the 1986 injury but 
 
            there is no substantial evidence in the record to support 
 
            such a theory and it is therefore rejected.  
 
            
 
                 It is therefore determined that claimant has proven an 
 
            injury arising out of and in the course of employment in the 
 
            nature of an aggravation of a preexisting condition.  The 
 
            date of injury is fixed at October 16, 1990.  In accordance 
 
            with the stipulation, claimant is entitled to recovery 
 
            healing period compensation for 27 weeks running from 
 
            October 16, 1990 through April 22, 1991.  
 
            
 
                 The employer asserts that the degree of claimant's 
 
            disability should be divided or apportioned between the 1990 
 
            injury and the 1986 motorcycle accident.  
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 

 
            
 
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            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 This is a case where apportionment is a bona fide 
 
            issue.  The employer should not be held responsible for 
 
            paying compensation for disability which was not caused by 
 
            the employment.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251; 
 
            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 
 

 
            
 
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            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).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce, 465 N.W.2d 531; DeWall v. 
 
            Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. 
 
            Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon 
 
            of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 
 
            143; Michael v. Harrison County, Thirty-fourth Biennial 
 
            Report of the Industrial Commissioner 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The fact that Chambers was able to return to work 
 
            following the motorcycle accident without any reduction in 
 
            his rate of earnings, other than perhaps for reduced hours 
 
            due to the change of positions, does not conclusively 
 
            establish that he suffered no industrial disability as a 
 
            result of the motorcycle accident.  Demonstrated actual 
 
            earnings are strong evidence of earning capacity but they 
 
            are not conclusive to the extent of excluding the 
 
            consideration of the other recognized factors.  In this 
 
            case, claimant, quite reasonably, went to a job which 
 
            provided less hours of work per week than the job he had 
 
            held before the motorcycle accident occurred and it was a 
 
            job which provided less stress and strain to his back.  Even 
 
            though the functional capacity evaluation showed him to be 
 
            capable of lifting 100 pounds, that fact alone does not mean 
 
            that there was no loss of physical capacity or earning 
 
            capacity.  As indicated by the vocational consultant, 
 
            claimant did suffer a loss of access to some jobs as a 
 
            result of the motorcycle accident.  That loss of access 
 

 
            
 
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            equates to some degree of industrial disability.  
 
            
 
                 The injury now being litigated did not occur until 
 
            claimant took himself off of the lighter job and placed 
 
            himself into the more physically demanding labor pool 
 
            position.  His action in doing so was quite improvident.  It 
 
            is recognized that claimant also had worked as a second 
 
            shift casting machine operator and second shift casting 
 
            utility person before moving to the labor pool.  He 
 
            apparently moved to the labor pool in order to change to the 
 
            first shift so that he would have more time with his family 
 
            in an apparent attempt to reconcile some domestic discord.  
 
            The attempt unfortunately proved to be unsuccessful.  Not 
 
            only did his marriage fail to survive, but he also sustained 
 
            the injury which is now under litigation.
 
            
 
                 Apportionment can be conducted in two different ways.  
 
            The method used by this agency in Bearce, 465 N.W.2d 531, 
 
            was to make a finding of the extent of the overall 
 
            disability and then deduct the portion of the preexisting 
 
            disability.  The defect in that method of analysis is that 
 
            an individual's earning capacity often changes over the 
 
            individual's lifetime due to a number of factors, some of 
 
            which can increase the earning capacity while others may 
 
            tend to decrease it.  This method requires a finding of the 
 
            current degree of industrial disability as well as a finding 
 
            of the degree of industrial disability which preexisted the 
 
            most recent injury.  Since assessment of industrial 
 
            disability is not simply a matter of performing a 
 
            mathematical calculation, illogical results can occur when 
 
            the pure mathematical function of subtracting the 
 
            preexisting degree of disability from the current degree of 
 
            disability.  For example, in Bearce, the commissioner had 
 
            found that Bearce had a total of 35 percent industrial 
 
            disability and that 25 percent was related to the previous 
 
            injury from which he was able to return to work yet only 10 
 
            percent was related to the most recent injury which caused 
 
            Bearce to lose his livelihood.  This method is based upon 
 
            the questionable presumption that individuals somehow start 
 
            their working life at 100 percent of full capacity and 
 
            thereafter lose earning capacity through injuries.  It does 
 
            not take into account the fact that earning capacity can 
 
            increase through things such as increasing education, 
 
            increasing technical skills, increasing seniority, maturity, 
 
            and other factors.  The method used by the commissioner 
 
            deducts for things which tend to reduce earning capacity, 
 
            but makes no additions for things which tend to increase 
 
            earning capacity.
 
            
 
                 A second method of performing apportionment is to 
 
            consider the earning capacity of the individual as being 100 
 
            percent immediately prior to the time that the injury under 
 
            consideration occurs.  Since differing individuals have 
 
            differing earning capacities and earning capacities can be 
 
            affected either positively or negatively by a wide variety 
 
            of events, this method takes into account everything that 
 
            has existed prior to the time of the injury under 
 

 
            
 
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            consideration.  The loss of earning capacity or industrial 
 
            disability which is determined is then based upon the 
 
            earning capacity that existed immediately prior to the time 
 
            the most recent injury occurred.  This method of 
 
            apportionment avoids some of the pitfalls that are 
 
            encountered when attempting to determine the extent of 
 
            disability caused by a previous or remote injury and then 
 
            subtracting the extent of disability caused by each previous 
 
            injury form the current degree of disability.  It avoids 
 
            getting bogged down in mathematics which can often produce 
 
            illogical results.  It is this second method of determining 
 
            disability proximately caused by this injury and 
 
            apportionment that is used in this decision.
 
            
 
                 Neal Chambers clearly had impairment of physical 
 
            capacity as a result of the motorcycle accident.  He clearly 
 
            had lost the ability to perform heavy physical labor since 
 
            it is that activity which caused this injury.  While the 
 
            functional capacity evaluation might have shown him to be 
 
            capable of lifting 100 pounds, it was inaccurate if it was 
 
            construed as a predictor that he could safely lift 100 
 
            pounds on a continuing, repetitive basis without sustaining 
 
            further injury.  
 
            
 
                 Actual earnings are a quite reliable indicator of 
 
            earning capacity since most individuals attempt to maximize 
 
            their earnings as did Chambers when he bid into higher 
 
            paying jobs.  His earnings at the time of injury are not, 
 
            however, an accurate indicator of his earning capacity prior 
 
            to the injury since he was not able to perform those 
 
            activities without sustaining injury to himself.  A simple 
 
            comparison of pre-injury actual earnings with the 
 
            anticipated post-injury earnings were he to find employment 
 
            consistent to that recommended by the vocational consultant 
 
            is somewhat indicative of the extent of lost earning 
 
            capacity.  Clearly, Neal Chambers had some preexisting 
 
            physical disability as a result of the motorcycle injury.  
 
            Despite the severity of those injuries and the residual 
 
            physical disability, his physical capacities were probably 
 
            still well in excess of the physical capacities of many 
 
            individuals who have not sustained any injury whatsoever.  
 
            The injury in this case has made Chambers unable to perform 
 
            physical activity at the level that he was able to perform 
 
            following the motorcycle accident.  The impact on Chambers 
 
            has been very substantial.  In making this statement it is 
 
            recognized that he has not made a particularly extensive 
 
            search to obtain re-employment.  
 
            
 
                 This case is determined based upon the evidence from 
 
            Patricia Conway being correct.  The employer is not entitled 
 
            to benefit from Conway's statement that the degree of 
 
            industrial disability could be reduced by formalized 
 
            training since defendant is not providing that training.  
 
            Further, it is unknown as to whether or not this claimant 
 
            has the intellectual capacity to complete further formal 
 
            training.  A case is to be decided based upon the facts 
 
            which are known or readily predictable.  It is not proper to 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            speculate into what the future might hold.  Meier v. John 
 
            Kirby, file number 826937 (App. Dec. 1989).  The measure of 
 
            the employer's liability is with the employee being as the 
 
            employer leaves him.  It is not as the employee might become 
 
            at some unspecified time in the future if events which 
 
            benefit the claimant occur during the intervening time.  
 
            Having the intellectual ability to complete higher formal 
 
            education or training is of little impact if financial 
 
            resources are not available to provide that training.  
 
            Further, even if the training is obtained, the level of 
 
            earning capacity which might then exist would not 
 
            necessarily be higher than the level of earning capacity 
 
            which existed prior to the injury which is the subject of 
 
            this case.  The employer had the ability to place claimant 
 
            into a job which he was capable of performing, such as those 
 
            that he held prior to moving into the labor pool, but it 
 
            chose to not allow him the option of those jobs.  He was 
 
            directed to return to the labor pool.  When an employer 
 
            chooses to not return an injured employee to work and in 
 
            essence removes the employee from its work force, that fact 
 
            alone is strong evidence of a high degree of disability.  
 
            Sunbeam Corp. v. Bates, 609 S.W.2d 102 (Arkansas Appellate 
 
            1980); Army and Air Force Exchange Service v. Neuman, 278 
 
            F.Sup. p. 65 (W.D.La 1967); 2 Larson 57.61.  This rule 
 
            exists because an employer is presumed to know the actual 
 
            requirements of employees in industry.  An employer's 
 
            determination that an employee is not economically feasible 
 
            to have as part of its work force is afforded a high degree 
 
            of deference.  If the employer in whose employ the injury 
 
            occurred is not motivated to provide employment to a person 
 
            with a disability then there is little reason to expect that 
 
            some other employer would have a higher level of motivation 
 
            for employing the partially disabled person.  
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, together with the fact of the preexisting 
 
            disability, it is determined that Neal Chambers has 
 
            sustained a 35 percent permanent partial disability as a 
 
            result of the October 16, 1990 cumulative trauma injury.  
 
            This entitles him to recover 175 weeks of permanent partial 
 
            disability compensation.
 
            
 
                 The only disputed issue regarding the medical expenses 
 
            shown in claimant's exhibit A is that of liability.  The 
 
            bills have been examined.  The treatments provided were 
 
            consistent with the injury sustained and the dates contained 
 
            in the other medical reports.  It is therefore determined 
 
            that all the expenses contained in claimant's exhibit A were 
 
            incurred in obtaining medical treatment for the injury in 
 
            this case and that the requisite causal connection exists 
 
            between the injury and the expenses.  The employer is 
 
            therefore responsible for payment of claimant's expenses as 
 
            set forth in exhibit A.
 
            
 
                                     ORDER
 
            
 
                 IT IS THEREFORE ORDERED that the employer pay Neal 
 
            Chambers twenty-seven (27) weeks of compensation for healing 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            period at the stipulated rate of two hundred seventy-two and 
 
            64/100 dollars ($272.64) payable commencing October 16, 
 
            1990.
 
            
 
                 It is further ordered that the employer pay Neal 
 
            Chambers one hundred seventy-five (175) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of two hundred seventy-two and 64/100 
 
            dollars ($272.64) payable commencing April 23, 1991.  
 
            
 
                 It is further ordered that all accrued weekly 
 
            compensation benefits which have not been paid to the 
 
            claimant shall be paid to him in a lump sum together with 
 
            interest pursuant to section 85.30 computed from the date 
 
            each payment came due until the date of actual payment.
 
            
 
                 It is further ordered that the employer pay the 
 
            following medical expenses: Robert K. Fryzek - $88; Glenwood 
 
            Physical Therapy - $289.60; Behrouz Rassekh - $155.  Total 
 
            medical due $532.60.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33. 
 
            
 
                 It is further ordered that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Ave 
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            PO Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
 
            
 
          
 
            
 
            
 
            
 
                                                  1806 1807 2206 2209
 
                                                  Filed June 11, 1993
 
                                                  Michael G. Trier
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            NEAL CHAMBERS, 
 
                      
 
                 Claimant,                      File No. 981305
 
                      
 
            vs.       
 
                                            A R B I T R A T I O N
 
            GRIFFIN PIPE PRODUCTS,   
 
                                               D E C I S I O N
 
                 Employer,     
 
                 Self-Insured,        
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            1806 1807 2206 2209 
 
            Claimant with a three-level fusion from a nonwork-related 
 
            injury sustained a cumulative trauma injury in the form of 
 
            an aggravation of the preexisting condition and was awarded 
 
            35 percent permanent partial disability.  Two methods of 
 
            performing apportionment were discussed and the preferred 
 
            method was held to be that of basing the percentage of 
 
            industrial disability as a loss from the level of earning 
 
            capacity that existed immediately prior to the injury under 
 
            litigation.  The method of subtracting from a 100 percent 
 
            perfect individual for different lifetime events was 
 
            rejected.  There was a discussion regarding the role of 
 
            actual earnings when determining changes in earning 
 
            capacity.  The decision explains why refusal to rehire 
 
            commonly results in a significantly higher award than what 
 
            would be the result if the employment relationship had been 
 
            maintained.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DENISE THOMAS,                :
 
                                          :
 
                                          :       File No. 981309
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            K-MART CORPORATION,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Denise 
 
            Thomas, claimant, against K-Mart Corporation, self-insured 
 
            employer, hereinafter referred to as K-Mart, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            January 20, 1989.  On July 20, 1992, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The oral testimony and written exhibits were received 
 
            only from claimant during the hearing and are set forth in 
 
            the hearing transcript.  Due to prior imposition of sanc
 
            tions by this agency, defendant was not allowed to partici
 
            pate or offer evidence at hearing and did not appear for 
 
            hearing.
 
            
 
                                      ISSUES
 
            
 
                 The claimant submitted the following issues for deter
 
            mination in this proceeding:
 
            
 
                   I.  Whether an employer-employee relationship existed 
 
            between claimant and the alleged defendant employer at the 
 
            time of the alleged injury; 
 
            
 
                  II.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits;
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                   V.  The extent of claimant's entitlement to penalty 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 From her demeanor while testifying, claimant is found 
 
            credible.
 
            
 
                 Claimant, age 33, was employed by K-Mart continuously 
 
            from 1978 until the work injury herein on January 20, 1989.  
 
            Initially, she was assigned to store clerk duties in various 
 
            departments or to check out.  For the last four years she 
 
            was working in a storeroom as a receiving clerk assigned to 
 
            unloading semi-trucks, checking-in merchandise and pricing 
 
            merchandise.  The work was at times heavy, especially in the 
 
            handling of large television sets and microwave ovens.  
 
            Claimant's average gross weekly earnings in the 13 weeks 
 
            before the injury of January 20, 1989 was $260.10, according 
 
            to exhibit 12.  On January 20, 1989, claimant was single and 
 
            entitled to 2 exemptions on her tax returns.
 
            
 
                 On or about January 20, 1989, claimant injured her 
 
            right wrist while unloading a truck.  This injury arose out 
 
            of and in the course of her employment.  The acute pain 
 
            became so severe that she was compelled to leave work on the 
 
            afternoon of January 20, 1989.  She has not returned to work 
 
            in any capacity since that time.  Claimant's account of the 
 
            injury was uncontroverted and consistent with histories she 
 
            provided to all treating physicians in this case.  
 
            
 
                 Since January 20, 1989, claimant has had continuing 
 
            pain complaints in her right wrist and has received almost 
 
            continuous treatment for those complaints.  As a result she 
 
            has not been able to return to her receiving clerk position 
 
            at K-Mart.  During her treatment she was released to one-arm 
 
            duty only and claimant credibly testified that her job 
 
            required the use of both of her hands.  Claimant was first 
 
            treated by Samir Wahby, M.D., but was referred in March 1990 
 
            to an orthopaedic surgeon, Douglas Regan, M.D.  Dr. Regan 
 
            has treated claimant since that time.  This treatment, to 
 
            date, has involved two surgeries.  The first occurred on 
 
            April 11, 1990 and involved a cubital tunnel release in the 
 
            elbow, arthroscopy of the wrist and other procedures.  
 
            Following a long period of physical therapy and continuing 
 
            complaints of wrist pain, she underwent a second surgery on 
 
            October 9, 1991 involving a fusion of the wrist and related 
 
            procedures.  Claimant today still has not reached maximum 
 
            healing according to Dr. Regan who indicates that he will 
 
            not be able to rate claimant's permanent impairment for 
 
            another 6-12 weeks.  Two second opinions were obtained from 
 
            T. DeBartolo, M.D., during this treatment period.  Dr. 
 
            DeBartolo essentially concurred with the treatment of Dr. 
 
            Regan.  
 
            
 
                 It is found that claimant has been absent from work to 
 
            receive treatment continuously since January 20, 1989 as a 
 
            result of the work injury of January 20, 1989.  Although Dr. 
 
            Regan has not issued a specific causal connection opinion 
 
            linking his treatment to the events of January 20, 1989, it 
 
            is clear from his notes that he, as the authorized physi
 
            cian, sent regular reports to the defendant and did not deny 
 
            the casual connection of this treatment to the work injury.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant's uncontroverted testimony established that she had 
 
            no wrist or arm injuries or complaints prior to January 20, 
 
            1989 and has had continuous complaints since.  
 
            
 
                 Also, claimant has underwent two pregnancies since 
 
            January 20, 1989 and each one has delayed surgical treat
 
            ment.  However, despite these pregnancies, the work injury 
 
            remained a substantial contributing factor in preventing a 
 
            return to work at all times since January 20, 1989.  
 
            
 
                 Claimant testified that she was notified to return to 
 
            work, part-time, in January 1991.  Claimant stated that she 
 
            did not feel that she could perform the work and did not 
 
            report to work in January 1991.  Subsequently, claimant's 
 
            weekly benefits were terminated by defendant.  It cannot be 
 
            determined from the record if the work offered was suitable 
 
            for her disability or approved by Dr. Regan.  The only 
 
            release to work in the record was the initial release to 
 
            one-handed work in 1989 and no such work was offered at the 
 
            time by K-Mart.  If K-Mart was offering one-handed work or 
 
            other suitable work in January 1991, such is not contained 
 
            in the record.  Claimant is not obligated to accept 
 
            non-suitable work.
 
            
 
                 Given claimant's testimony verifying the mileage claim 
 
            attached to the prehearing report, it is found that claimant 
 
            has incurred a total of 6,550 miles, as of the date of hear
 
            ing, in traveling to receive authorized medical treatment of 
 
            the work injury of January 20, 1989.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant must establish that an employee-employer 
 
            relationship existed between herself and K-Mart on the date 
 
            of injury.  Only employees are entitled to compensation for 
 
            work-related injuries under chapter 85 of the Iowa Code.  
 
            The definition of employee under chapters 85 and 85A of the 
 
            Iowa Code is the same.  I.C.A. 85A.3.  Iowa Code section 
 
            85.61(2) defines employee as "a person who has entered into 
 
            the employment of, or works under contract of service, 
 
            express or implied..."  In this case, it was found that such 
 
            an employment contract existed on the date of injury.
 
            
 
                 II.  Claimant has the burden of proving by a preponder
 
            ance of the evidence that claimant received an injury aris
 
            ing 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 circum
 
            stances 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 per
 
            sonal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 In the case sub judice, the evidence of an injury was 
 
            uncontroverted.  It was found that the conditions being 
 
            treated were causally connected to the injury.  The opinion 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language and the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). If 
 
            the available expert testimony is insufficient alone to sup
 
            port a finding of causal connection, such testimony may be 
 
            coupled with non-expert testimony to show causation and be 
 
            sufficient to sustain an award.  Giere v. Aase Haugen Homes, 
 
            Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966) 
 
            
 
                 III.  Claimant is entitled to weekly benefits for 
 
            temporary total disability or healing period weekly benefits 
 
            from the date of disability until claimant returns to work; 
 
            is medically capable of returning to substantially similar 
 
            work to the work she was performing at the time of injury; 
 
            or, if there is permanency, until it is indicated that sig
 
            nificant improvement from the injury is not anticipated, 
 
            whichever occurs first.  Iowa Code sections 85.33 & 34.  
 
            
 
                 In the case sub judice, there were two conceptual prob
 
            lems.  First, claimant became pregnant twice during her 
 
            recovery from the work injury.  In each case, aggressive 
 
            treatment was suspended by Dr. Regan pending completion of 
 
            the pregnancy.  However, it was found that the work injury 
 
            has always been a substantial factor in preventing claimant 
 
            from returning to work.  The intervening pregnancy did not 
 
            change this.  Had there been no work injury, claimant would 
 
            have been able to work during her pregnancy.  There is no 
 
            statutory or case law authority to suspend benefits when 
 
            treatment is delayed due to another medical condition of a 
 
            claimant.
 
            
 
                 Second, Iowa Code section 85.33(3), suspends temporary 
 
            weekly benefits if a claimant refuses to accept suitable 
 
            work.  However, it could not be found from the record that 
 
            suitable work was offered in January 1991.  
 
            
 
                 Therefore, as it was found that claimant has not 
 
            reached maximum healing and remains off work as a result of 
 
            the work injury, temporary total disability benefits will be 
 
            awarded from the date of injury until she is capable of 
 
            returning to work or reaches maximum healing.
 
            
 
                 With reference to weekly rate, it was found that 
 
            claimant's gross weekly earnings was $260.10, she was single 
 
            and entitled to two exemptions on their tax returns at the 
 
            time of injury.  Therefore, according to the Industrial 
 
            Commissioner's published rate booklet for injuries occurring 
 
            in FY 89, the rate of compensation is $166.39 per week.
 
            
 
                  IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  In the case at bar, the 
 
            only issue involved medical mileage.  This is reimbursed at 
 
            the rate of $.21 per mile according to 343 IAC 8.1.  
 
            Compensation to claimant will be awarded accordingly.
 
            
 
                   V.  Claimant seeks penalty benefits under Iowa Code 
 
            section 86.13(4) for an alleged unreasonable stoppage of 
 
            benefits in March 1991 following the refusal to return to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            work in January 1991.  As was the case in determining 
 
            whether claimant's benefits should be suspended for this 
 
            refusal under Iowa code section 85.33(3), it is crucial to 
 
            assess whether or not the offer was for a return to suitable 
 
            work.  If it were, then the stoppage of benefits without 
 
            further notice would be reasonable.  In this case, the 
 
            record is silent on what work was offered or if such work 
 
            was suitable to claimant's disability.  In order to prevail 
 
            in a claim for unreasonable denial or bad faith, claimant 
 
            had to show in this case that the offer in January 1991 was 
 
            to unsuitable work and defendant knew or should have known 
 
            this.  Claimant failed to establish this factual showing.  
 
            The lack of a record may have helped claimant on the suspen
 
            sion issue but this lack of evidence also prevents a finding 
 
            of unreasonableness upon which to base an award of penalty 
 
            benefits.  Therefore, the claim for penalty benefits is 
 
            denied. 
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant temporary total 
 
            disability or healing period benefits at a rate of one 
 
            hundred sixty-six and 39/l00 dollars ($166.39) per week from 
 
            January 20, 1989 until termination of such benefits is 
 
            appropriate by Iowa Code sections 85.33(1) or 85.34(1).
 
            
 
                 2.  Defendant shall pay to claimant the sum of one 
 
            thousand three hundred seventy-five and 50/l00 dollars 
 
            ($1,375.50) as reimbursement for medical mileage expenses.  
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.  
 
            
 
                 4.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, as set forth in the prehearing 
 
            report, including reimbursement to claimant for any filing 
 
            fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 7.  This claim shall be returned to the hearing admin
 
            istrator to schedule a hearing as soon as practicable after 
 
            November 1, 1992 on the issue of the extent of claimant's 
 
            entitlement to permanent disability benefits.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Jerry L. Schnurr, III
 
            Attorney at Law
 
            801 Carver Building
 
            P O Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            Mr. Joel T. S. Greer
 
            Attorney at Law
 
            112 W Church Street
 
            Marshalltown, Iowa  50158
 
            
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       ____________________________________________________________
 
               
 
       DENISE THOMAS,   
 
                                         File No. 981309
 
          Claimant, 
 
                                      A R B I T R A T I O N
 
       vs.          
 
                                        D E C I S I O N
 
       K-MART CORPORATION,   
 
               
 
          Employer, 
 
          Self-Insured,  
 
          Defendant.    
 
       ___________________________________________________________
 
       
 
       
 
                         STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration brought by Denise 
 
       Thomas, claimant, against K-Mart, a self-insured defendant 
 
       employer, for workers' compensation benefits as a result of an 
 
       alleged injury on January 20, 1989.  On November 3, 1994, a 
 
       hearing was held on claimant's petition and the matter was 
 
       considered fully submitted at the close of this hearing.
 
            
 
            On September 21, 1992, the undersigned issued a prior 
 
       arbitration decision finding that claimant suffered a compensable 
 
       work injury to her right wrist on January 20, 1989 but that she 
 
       had not as yet reached maximum healing from this injury.  Medical 
 
       benefits and the payment of healing period benefits were ordered 
 
       at that time for an indefinite period of time and that a hearing 
 
       on claimant's full entitlement to weekly and medical benefits 
 
       would be held at a later date, if needed, upon request of the 
 
       parties.  This decision was not appealed and became a final 
 
       agency decision.  The hearing on November 3, 1994 was then 
 
       conducted pursuant to this prior decision.
 
            
 
            It should be noted that defendant was not allowed to 
 
       participate or submit evidence in the previous hearing due to 
 
       prior sanctions imposed by this agency for discovery rule 
 
       violations.  However, the undersigned allowed defendant to 
 
       participate in and present evidence at the November 3, 1994 
 
       hearing.  This is a new proceeding and claimant verified that 
 
       defendant complied with agency rules and cooperated with claimant 
 
       in the preparation for the November 3, 1994 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.  Claimant has been paid her entitlement to healing period 
 

 
 
 
 
 
 
 
 
 
       benefits which extend from January 20, 1989 through March 31, 
 
       1994.
 
            
 
            2.  If the injury is found to have caused permanent 
 
       disability, the type of disability is a scheduled member 
 
       disability to the upper extremity.
 
            
 
            3.  Defendant agreed that claimant is entitled to and will 
 
       be paid the requested medical benefits set forth in the hearing 
 
       report.
 
       
 
                                 ISSUES
 
            
 
            The parties submitted the following issues for determination 
 
       at the November 3, 1994 hearing:
 
            
 
             I.  The extent of claimant's entitlement to permanent 
 
       disability benefits; and,
 
            
 
            II.  The extent of claimant's entitlement to penalty 
 
       benefits, if any.
 
       
 
                          FINDINGS OF FACT
 
            
 
            Having heard the testimony and considered all of the 
 
       evidence, the deputy industrial commissioner finds as follows:
 
            
 
            Claimant's credibility was not challenged by defendant.
 
            
 
            As a result of wrist and arm pain from the work injury, 
 
       claimant has underwent two surgeries.  In April 1990, she had a 
 
       cubital tunnel release in the elbow and repair of the 
 
       scapholunate ligament.  In October 1991 she underwent a mid-
 
       carpal row fusion and a radial styloidectomy.  Claimant's primary 
 
       treating orthopedic surgeon has been Douglas Reagan, M.D.  
 
       According to Dr. Reagan, claimant has suffered a 22 percent 
 
       permanent partial impairment to the upper extremity from the 
 
       injury.  Another physician, Dave Archer, M.D., a family practice 
 
       physician, rates claimant as suffering from a 35 percent 
 
       permanent partial impairment to the upper extremity. Both 
 
       physicians state they used the AMA Guides to evaluate this 
 
       disability.  Although his report is more detailed as to his 
 
       findings as to permanency and the doctor spent over a hour in 
 
       evaluating claimant's condition, Dr. Archer's views cannot be 
 
       given the same weight as the treating orthopedic surgeon who is 
 
       more clinically familiar with claimant's condition and who 
 
       possesses a specialty in the care and treatment of orthopedic 
 
       problems.
 
            
 
            However, neither physician appears to have rated claimant's 
 
       actual loss of use.  As was apparent at hearing, claimant must 
 
       wear her wrist brace for most of the day and many times at night 
 
       to prevent pain.  This brace totally immobilizes claimant's 
 
       wrist.  Consequently, her actual loss of use is her wearing this 
 
       brace, not her range of motion without a brace.  Therefore, given 
 
       this agency's expertise and experience in these matters, an 
 
       additional eight percent loss of use is found over and above the 
 
       rating of Dr. Reagan.  Consequently, it is found that the injury 
 
       of January 20, 1989 was a cause of a 30 percent permanent partial 
 
       disability to the right arm.
 
            
 
            Claimant's testimony and the written evidence shows that 
 
       there were two significant interruptions in the payment of weekly 
 
       benefits pursuant to the September 21, 1992 final decision.  
 
       Claimant was not paid until October 18, 1993 for the benefit 
 
       period from July 10, 1993 through October 15, 1993.  She was 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       likewise not paid until September 2, 1994 for the benefit period 
 
       extending from April 2, 1994 through August 26, 1994.  The total 
 
       amount of payments delayed was over $4,000.  No excuse or prior 
 
       notice was given for these delays.  No reason for the delays were 
 
       provided at hearing by defendant.  This is unreasonable and 
 
       warrants the maximum penalty imposed by law.
 
       
 
                           CONCLUSIONS OF LAW
 
            
 
             I.  A permanent partial disability is either scheduled or 
 
       unscheduled.  A scheduled disability is evaluated by the 
 
       functional method.  The industrial method is used to evaluate an 
 
       unscheduled disability.  Martin v. Skelly Oil Co., 252 Iowa 128, 
 
       133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 
 
       N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 
 
       886, 997 (1983).  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 30 percent permanent loss of use of her right arm.  Based on 
 
       such a finding, claimant is entitled to 75 weeks of permanent 
 
       partial disability benefits under Iowa Code section 85.34(2)(m) 
 
       which is 30 percent of 250 weeks, the maximum allowable number of 
 
       weeks of disability for an injury to the arm in that subsection.  
 
       These benefits will be ordered paid from the end of the 
 
       stipulated healing period.
 
            
 
            The finding of impairment in this case went beyond the 
 
       rating of a physician using the AMA Guides.  In making assessment 
 
       of the loss of use of a scheduled member, the evaluation is not 
 
       limited to the use of a standardized guide.  A claimant's 
 
       testimony and demonstrated difficulties may be considered in 
 
       determining the actual loss of use so long as loss of earning 
 
       capacity is not considered.  Soukup v. Shores Co., 222 Iowa 272, 
 
       268 N.W. 598 (1936).  The actual loss of use which is to be 
 
       evaluated is the loss of use of the member for the purposes for 
 
       which the member is customarily used in daily living, including 
 
       activities of employment.  Pain which limits use, loss of grip 
 
       strength, fatigability, activity restrictions and other pertinent 
 
       factors may all be considered when determining scheduled 
 
       disability.  Moss v. United Parcel Service, File No. 881576 
 
       (Appeal Decision, September 26, 1994); Greenlee v. Cedar Falls 
 
       Comm. Schools, File No. 934910 (Appeal Decision, December 27, 
 
       1993); Westcott-Riepma v. K-Products, Inc., File No. 1011173 
 
       (Arbitration Decision, July 19, 1994); Bieghler v. Seneca Corp., 
 
       File No. 979887 (Arbitration Decision, February 8, 1994); Ruyland 
 
       v. Rose's Wood Products, File No. 937842 (Arbitration Decision, 
 
       February 13, 1994); Smith v. Winnebago Industries, File No. 
 
       824666 (Arbitration Decision, April 2, 1991).
 
            
 
            II.  Claimant seeks additional weekly benefits under Iowa 
 
       Code section 86.13, unnumbered last paragraph.  That provision 
 
       states that if a delay in commencement or termination of benefits 
 
       occurs without reasonable or probable cause or excuse, the 
 
       industrial commissioner shall award extra weekly benefits in an 
 
       amount not to exceed 50 percent of the amount of benefits that 
 
       were unreasonably delayed or denied.  Defendants may deny or 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       delay the payment of benefits only when the claim is fairly 
 
       debatable.  Seydel v. U of I Physical Plant, (Appeal Decision, 
 
       November 1, 1889).  When the claim is "fairly debatable," the 
 
       insurer is entitled to debate it, whether the debate concerns a 
 
       matter of fact or law."
 
            
 
            Making claimant wait for his money regardless of medical 
 
       evidence is unreasonable conduct entitling claimant to penalty 
 
       benefits.  Hartl v. Quaker Oats Company, File No. 931120, (Appeal 
 
       Decision, July 22, 1993).
 
            
 
            Turning to the case sub judice, no explanation or prior 
 
       notice was given to claimant during two major interruptions in 
 
       her weekly benefits.  No explanation was offered at hearing.  The 
 
       maximum penalty will be imposed which will be the sum of $2,000 
 
       which is a reasonable penalty given the conduct.
 
       
 
                                  ORDER
 
            
 
            1.  Defendant shall pay to claimant seventy-five (75) weeks 
 
       of permanent partial disability benefits at a rate of one hundred 
 
       sixty-six and 39/l00 dollars ($166.39) per week from April 1, 
 
       1994.
 
            
 
            2.  Defendant shall pay to claimant a penalty in the amount 
 
       of two thousand dollars ($2,000).
 
            
 
            3.  Defendant shall pay the medical expenses listed in the 
 
       prehearing report.  Claimant shall be reimbursed for any of these 
 
       expenses paid by him.  Otherwise, defendant shall pay the 
 
       provider directly along with any lawful late payment penalties 
 
       imposed upon the account by the provider.
 
            
 
            4.  Defendant shall pay accrued weekly benefits in a lump 
 
       sum and shall receive credit against this award for all benefits 
 
       previously paid.
 
            
 
            5.  Defendant shall pay interest on weekly benefits awarded 
 
       herein as set forth in Iowa Code section 85.30. 
 
            
 
            6.  Defendant 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.
 
            
 
            7.  Defendant 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 November, 1994.
 
       
 
       
 
       
 
       
 
       
 
                                   ______________________________
 
                                   LARRY P. WALSHIRE
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Jerry L. Schnurr, III
 
       Attorney at Law
 
       409 Snell Bldg
 
       PO Box 952
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       Fort Dodge  IA  50501
 
       
 
       Mr. Joel T. S. Greer
 
       Attorney at Law
 
       112 W Church St
 
       Marshalltown  IA  50158
 
            
 
                    
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed September 21, 1992
 
                                              LARRY P. WALSHIRE
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DENISE THOMAS, 
 
                                              File No. 981309
 
                 Claimant, 
 
                                         A R B I T R A T I O N
 
            vs.       
 
                                             D E C I S I O N
 
            K-MART CORPORATION, 
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
                 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                      1803; 4000
 
                                      Filed November 28, 1994
 
                                      LARRY P. WALSHIRE
 
          
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
               
 
         DENISE THOMAS, 
 
                                          File No. 981309
 
          Claimant, 
 
                                       A R B I T R A T I O N
 
         vs.        
 
                                          D E C I S I O N
 
         K-MART CORPORATION, 
 
               
 
          Employer, 
 
          Self-Insured,  
 
          Defendant.     
 
         ___________________________________________________________
 
         1803 - Extent of Scheduled Member Disability
 
         Although the lower scheduled member rating by the treating 
 
         physician was given greater weight over a higher rating by a 
 
         one-time evaluator, an additional 8 percent permanent 
 
         disability found over this rating as claimant's actual loss 
 
         of use was more than the physician's ratings under the AMA 
 
         Guides.  Claimant was required to use her wrist brace most 
 
         of time during the day and night to prevent pain and the 
 
         brace totally immobilized her wrist function.  This real 
 
         life loss of use was not included in the treating 
 
         physician's rating.
 
         
 
         
 
         4000 - Penalty
 
         A $2,000 penalty was imposed for two major interruptions in 
 
         the payment of weekly benefits without explanation to 
 
         claimant or this agency.
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONNIE SHAFFER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 981314;
 
                                          :        931131; 910596
 
            EXIDE CORPORATION,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Donnie 
 
            D. Shaffer, claimant, against Exide Corporation, employer, 
 
            hereinafter referred to as Exide, and Wausau Insurance 
 
            Companies, insurance carrier, defendants, for workers' com
 
            pensation benefits as a result of an alleged injury on 
 
            September 19, 1988.  On June 22, 1992, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.  In the prehearing 
 
            report submitted at hearing, the parties agreed to a new 
 
            work injury date of November 13, 1990 for file number 
 
            981314.
 
            
 
                 Also, at the request of and with the expressed consent 
 
            of all parties, the undersigned on June 22, 1992, agreed to 
 
            hear and decide the only remaining dispute among the parties 
 
            with reference to two pending claims, file numbers 910596 
 
            and 931131, which had not been scheduled for hearing.  
 
            Apparently the parties entered into a settlement agreement 
 
            in February 1991 which was approved by this agency in which 
 
            the parties agreed to a work injury date of September 19, 
 
            1988 for both claims and to payment of weekly benefits for 
 
            healing period and permanent partial disability (PPD).  The 
 
            payment of PPD was based upon a 5 percent loss to each hand 
 
            but the issue was left open for further benefits pending a 
 
            final rating by the treating physician. It was further 
 
            agreed that claimant was paid his entitlement to weekly ben
 
            efits through December 19, 1990.  According to the parties, 
 
            now that the only available remaining issue to be decided in 
 
            these files is the extent of claimant's entitlement to per
 
            manent disability benefits for the bilateral hand or arm 
 
            injuries.
 
            
 
                 The parties have submitted two prehearing reports for 
 
            all of the files discussed above delineating the contested 
 
            issues and stipulations.  At hearing, these reports were 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            approved and accepted as a part of the record of this case.  
 
            The oral testimony and written exhibits received during the 
 
            hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing reports, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On September 19, 1988 and November 13, 1990, 
 
            claimant received injuries arising out of and in the course 
 
            of employment with Exide.
 
            
 
                 2.  Claimant is only seeking temporary total or healing 
 
            period benefits in this proceeding from November 20, 1990 
 
            through January 8, 1992 as a result of the November 13, 1990 
 
            injury and defendants agree that claimant was not working 
 
            during this time. 
 
            
 
                 3.  With reference to the injury of September 19, 1988, 
 
            the type of permanent disability is a scheduled member dis
 
            ability to either the hand or arm.
 
            
 
                 4.  With reference to the injury of November 13, 1990, 
 
            if permanent partial disability benefits are awarded, they 
 
            shall begin as of April 30, 1991.
 
            
 
                 5.  At the time of injury of September 19, 1988, 
 
            claimant's gross rate of weekly compensation was $663.30; he 
 
            was single; and he was entitled to one exemption.  
 
            Therefore, claimant's weekly rate of compensation is $363.54 
 
            according to the Industrial Commissioner's published rate 
 
            booklet for this injury.
 
            
 
                 6.  At the time of injury of November 13, 1990, 
 
            claimant's gross rate of weekly compensation was disputed; 
 
            he was married; and he was entitled to 3 exemptions.
 
            
 
                 7.  Medical benefits are not in dispute in any of these 
 
            litigated claims.
 
            
 
                                      ISSUES
 
            
 
                 The only issues submitted by the parties is the extent 
 
            of claimant's entitlement to disability benefits and the 
 
            weekly rate for the November 13, 1990 injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant has worked for Exide since May 1986 and this 
 
            employment continues at the present time.  At the time of 
 
            the work injuries, claimant was working in the dyna cast 
 
            department assembling batteries.  This work involved exten
 
            sive use of claimant's hands and arms in the repetitive 
 
            gripping and lifting, frequently heavy, of battery compo
 
            nents.  After approximately one year following his last sur
 
            gical procedure on his right shoulder, claimant returned to 
 
            work at Exide.  However, claimant did not return to dyna 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            cast but to a different department called TPT.  Work in this 
 
            department met his physician imposed physical activity 
 
            restrictions against repetitive use of his hands and arms.  
 
            Claimant continues in this employment today.
 
            
 
                 The work injury of September 19, 1988 consists of 
 
            bilateral carpal tunnel syndrome; three trigger fingers in 
 
            the right hand; two trigger fingers on the left; and, an 
 
            ulnar tunnel syndrome on the left.  Claimant experienced 
 
            chronic pain, numbness and tingling in the fingers, hands 
 
            and arms beginning in 1988.  These symptoms, although less
 
            ened by treatment, continues today.  Claimant underwent 
 
            three surgeries for these conditions performed by William W. 
 
            Eversmann, Jr., M.D., a specialist in hand surgery, involv
 
            ing release of the tunnel syndromes and trigger fingers.
 
            
 
                 It is found that claimant suffers from a 5 percent per
 
            manent partial impairment on the left and a 10 percent per
 
            manent partial impairment on the right as a result of the 
 
            multiple conditions from the injury of September 19, 1988 
 
            which combines and converts to a body as a whole rating of 9 
 
            percent.  It is also found that this impairment is causally 
 
            connected to claimant's repetitive work at Exide prior to 
 
            September 19, 1988.  These findings are based upon the views 
 
            and ratings of the primary treating physician and surgeon, 
 
            Dr. Eversmann.  The opinions offered by defendants from a 
 
            one time evaluator were not convincing.  Dr. Eversmann had 
 
            far more clinical involvement with claimant.  He also had 
 
            actually observed the condition surgically.  Finally, with 
 
            reference to the injury of September 19, 1988, claimant has 
 
            not shown a total or 100 percent loss of earning capacity 
 
            from the two injuries sustained on that date.
 
            
 
                 The injury of November 13, 1990 involves another 
 
            overuse syndrome problem resulting in a multi-flap tear of 
 
            the glenoid labrum in the right shoulder as well as 
 
            arthritic changes within the shoulder joint all due to 
 
            repetitive or cumulative traumas while working in the dyna 
 
            cast department at Exide.  This was the diagnosis and causal 
 
            scenario opined by Keith W. Riggins, M.D., the treating 
 
            orthopedic physician.  His treatment of claimant began in 
 
            November 1990 upon complaints of chronic shoulder and arm 
 
            pain.  Claimant underwent a fourth surgery, this time on the 
 
            shoulder in January 1991.  Despite extensive treatment, 
 
            including this surgery, claimant still has difficulty using 
 
            his arms and hands today due to these shoulder conditions.  
 
            Dr. Riggins opines that this condition is permanent and 
 
            results in a 7 percent impairment of the arm under the AMA 
 
            guides.  He did not provide a body as a whole rating. He 
 
            also opined that claimant reached maximum benefits from 
 
            treatment at the time of his examination of claimant on 
 
            February 28, 1991.  Therefore, it is found that maximum 
 
            healing was achieved at that time.
 
            
 
                 Despite the lack of a body as a whole rating from Dr. 
 
            Riggins, the extent of impairment is a legal not a medical 
 
            question.  It is found that the work injury of November 13, 
 
            1990 is a cause of a significant permanent partial impair
 
            ment extending into the body as a whole.  The exact percent
 
            age is unimportant in body as a whole or industrial disabil
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            ity cases.  What is important is that Dr. Riggins recommends 
 
            against employment requiring repetitive use of claimant's 
 
            hands and arms and no overhead use of arms as such work 
 
            would result in a recurrence of symptoms.  As a consequence, 
 
            claimant was unable to return to Exide in the dyna cast 
 
            department.  However, in January 1992, he returned to Exide 
 
            in the TPT department which has much less repetitive work 
 
            and Dr. Riggins has approved of the work.
 
            
 
                 Claimant's medical condition before the work injury of 
 
            November 13, 1990 was certainly not excellent and he had 
 
            considerable problems with his bilateral hand and finger 
 
            conditions.  However, these prior injuries and resulting 
 
            disabilities were not independent of his employment at 
 
            Exide. Consequently, apportionment of disability cannot be 
 
            attempted.  However, in any event it should be noted that 
 
            the change of jobs at Exide from dyna cast to TPT did not 
 
            occur until after the November 13, 1990 injury.
 
            
 
                 The change of jobs from dyna cast to TPT has resulted 
 
            in approximately a 22.5 percent loss of actual earnings 
 
            according to figures complied by an accountant retained by 
 
            claimant.  Claimant's average wage in 1990 was $15.82 per 
 
            hour but is only $12.26 per hour in his current job.  
 
            Although both jobs have a similar base rate and both are 
 
            incentive pay jobs, there is more "down time" resulting in 
 
            lower average pay in TPT.  Claimant usually worked a 40 hour 
 
            week.  It is found by multiplying the average hourly rate by 
 
            40 that claimant's customary weekly earnings at the time of 
 
            the November 13, 1990 injury was $632.80.
 
            
 
                  It should be noted that the accountant's calculations 
 
            arriving at a present value for claimant's projected future 
 
            loss of earnings was not utilized in arriving at the indus
 
            trial disability findings herein.
 
            
 
                 The Exide industrial relations manager testified that 
 
            claimant's average pay in 1990 was $15.12 because the 
 
            accountant's figures included vacation pay.  He also testi
 
            fied that claimant's current pay is somewhat higher, $12.52.  
 
            These figures were rejected as a basis for the findings 
 
            herein as the manager failed to fully explain how he arrived 
 
            at his figures.  Vacation pay may or may not be properly 
 
            included depending upon the manner of calculation.  No 
 
            explanation was offered for the difference in current pay.
 
            
 
                 Claimant is 32 years of age and has a high school edu
 
            cation.  Claimant's past employment consists of gas station 
 
            attendant, construction work, packaging and weighing crack
 
            ers at a biscuit plant and supply handler.  His ability to 
 
            perform these jobs is very extremely restricted by his cur
 
            rent disabilities.
 
            
 
                 Before he was rehired by Exide, claimant made an 
 
            attempt to find suitable work in the area of his residence 
 
            for almost a year but failed.
 
            
 
                 However, vocational rehabilitation and seeking alterna
 
            tive suitable work is not necessary at this time as Exide 
 
            and the local UAW union has chosen to accommodate for 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant's disability; a medical placement was allowed; and, 
 
            a severe loss of earning capacity has been averted, for now.  
 
            A future loss of his job at Exide would certainly be a sig
 
            nificant change from his current condition requiring this 
 
            agency to reexamine this matter.
 
            
 
                 Despite his current employment, claimant still has a 
 
            significant disability which must be compensated.
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of November 13, 
 
            1990 was a cause of a 25 percent loss of earning capacity.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  The September 19, 1988 injury:  It was stipulated 
 
            that claimant suffered permanent impairment to two hands or 
 
            upper extremities from a single injury date.  Consequently, 
 
            the extent of disability must be measured pursuant to Iowa 
 
            Code section 85.34(2)(s).  Measurement of disability under 
 
            this subsection is peculiar.  Under this Code section, this 
 
            agency must first determine the extent of industrial dis
 
            ability or loss of earning capacity caused by the two simul
 
            taneous injuries.  If the injury caused a loss of earning 
 
            capacity that is less that total or 100%, then the extent of 
 
            the permanent disability is measured only functionally as a 
 
            percentage of loss of use for body member affected which is 
 
            then translated into a percentage of the body as a whole and 
 
            combined together into one body as a whole value.  This was 
 
            done by Dr. Eversmann using the AMA guides.  If the indus
 
            trial disability is total or there is a total loss of earn
 
            ing capacity, then claimant is entitled to permanent total 
 
            disability benefits under Iowa Code section 85.34(3).  See 
 
            Simbro v. DeLong's Sportswear 332 N.W.2d 886 (Iowa 1983); 
 
            Burgett v. Man An So Corp., 3 Iowa Indus. Comm'r Rpt 38 
 
            (Appeal Decision 1982).
 
            
 
                 In the case sub judice, it was found that claimant had 
 
            not suffered a total loss of earning capacity, consequently 
 
            his entitlement to permanent disability benefits is measured 
 
            only functionally.  Based upon a finding of a combined 9 
 
            percent impairment to the body as a whole as a result of 
 
            permanent injury to both hands and arms, claimant is enti
 
            tled as a matter of law to 45 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(s) 
 
            which is 9 percent of the 500 weeks allowable for a simulta
 
            neous injury to two extremities in that subsection.  
 
            Claimant has been paid for a 5 percent loss of both hands or 
 
            a total of 19 weeks through December 19, 1990 according to 
 
            the settlement agreement. Therefore, defendants will be 
 
            ordered to pay the difference, 26 weeks, from December 20, 
 
            1990.
 
            
 
                 II.  The November 13, 1990 injury:  As the claimant has 
 
            shown that this work injury was a cause of permanent physi
 
            cal impairment or limitation upon activity extending into 
 
            the shoulder and the body as a whole, the degree of perma
 
            nent disability was measured pursuant to Iowa Code section 
 
            85.34(2)(u).  However, unlike scheduled member disabilities, 
 
            the degree of disability under this provision is not mea
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            sured 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 Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  Examination of several factors determines the 
 
            extent to which a work injury and a resulting medical 
 
            condition caused an industrial disability.  These factors 
 
            include the employee's medical condition prior to the 
 
            injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc. (Appeal Decision, February 28, 1985).
 
            
 
                 Although it was found that due to prior work-related 
 
            conditions, claimant had prior physical impairment to his 
 
            extremities, apportionment is not possible in measuring dis
 
            ability resulting from the November 13, 1990 injury.  
 
            Apportionment of disability between a preexisting condition 
 
            and an injury is proper only in those situations where a 
 
            prior injury or illness unrelated to employment indepen
 
            dently produces some ascertainable portion of the ultimate 
 
            disability.  Tussing v. George A. Hormel & Co., 461 N.W.2d 
 
            450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353 
 
            N.W.2d 407 (Iowa 1984).  Also, prior existing impairment 
 
            does not mandate a finding of loss of earning capacity when 
 
            there has been no prior lost earnings or employment.  See 
 
            Bearce v. FMC Corp, 465 N.W.2d 531 (Iowa 1991)
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 25 percent loss of his earning capacity as a result 
 
            of the work injury of November 13, 1990.  Such a finding 
 
            entitles claimant to 125 weeks of permanent partial disabil
 
            ity 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. 
 
            
 
                  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 capa
 
            ble 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.  The only dispute 
 
            involved claimant's absence from work from November 20, 1990 
 
            through January 8, 1992.  It was found that claimant reached 
 
            maximum healing on February 28, 1991.  Benefits will be 
 
            awarded accordingly.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 With reference to rate of compensation, the parties' 
 
            dispute involves the calculation of gross wages.  As 
 
            claimant had an incentive pay job which varied from week to 
 
            week, the gross rate should be calculated under Iowa Code 
 
            section 85.36(6) using the previous 13 week average before 
 
            the injury.  Absent such evidence, claimant's gross weekly 
 
            earnings had to be calculated by using the average wage evi
 
            dence offered.  Barker v. City Wide Cartage, 1 Iowa Indus. 
 
            Comm'r Rpt 12 (Appeal Decision 1980).  In this case, it was 
 
            found that claimant's gross weekly earnings at the time of 
 
            injury was $632.80.  According to the applicable rate book
 
            let published by this agency and the stipulations of the 
 
            parties as to martial status and entitlement to exemptions, 
 
            claimant's rate of compensation for disability caused by the 
 
            November 13, 1990 injury is $388.43.
 
            
 
                                      ORDER
 
            
 
                 1.  With reference to the injury of September 19, 1988, 
 
            defendants shall pay to claimant twenty-six (26) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of three hundred sixty-three and 54/l00 dollars ($363.54) 
 
            per week from December 20, 1990.
 
            
 
                 2.  With reference to the injury of November 13, 1990, 
 
            defendants shall pay to claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at the 
 
            rate of three hundred eighty-eight and 43/l00 dollars 
 
            ($388.43) per week from February 29, 1991.  Defendants shall 
 
            also pay to claimant healing period benefits from November 
 
            20, 1990 through February 28, 1991, at the rate of three 
 
            hundred eighty-eight and 43/l00 dollars ($388.43) per week.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 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 this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fees paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Schilling
 
            Attorney at Law
 
            205 Washington Street
 
            P O Box 821
 
            Burlington, Iowa  52601
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed July 16, 1992
 
                                                 LARRY P. WALSHIRE
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DONNIE SHAFFER,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                  File Nos. 981314;
 
                                                    931131; 910596
 
            EXIDE CORPORATION,  
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.