BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MARGARET A. KOOPMANS,
 
         
 
              Claimant,
 
                                                 File No. 694831
 
         VS.
 
                                                   A P P E A L
 
         IOWA ELECTRIC LIGHT AND
 
         POWER COMPANY,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from arbitration decisions awarding 
 
         claimant death benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearings filed May 20, 1986 and May 16, 1986; 
 
         claimant's exhibits 1, 2a, 2b, and 3-10; and joint exhibits 1-21.  
 
         Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              1.  Whether claimant's action is barred by a failure to give 
 
         notice under Iowa Code section 85.23.
 
         
 
              2.  Whether claimant's death by heart attack arose out of 
 
         and in the course of his employment.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decisions adequately and accurately reflect 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant is the surviving spouse of Gerald 
 
         L. Koopmans, hereinafter referred to as decedent.  Decedent 
 
         worked for defendant Iowa Electric Light and Power Company since 
 
         1957, for the last ten years as the foreman of a line crew.  
 
         Several workers testified that decedent had a great concern for 
 
         safety of his crew, and had a better safety record than other 
 
         crews.  His duties included working after hours in emergencies 
 
         and inclement weather.  There was also testimony that decedent 
 
         often experienced a conflict with his supervisor, with the 
 
         supervisor frequently countermanding decedent's instructions and 
 
         expressing dissatisfaction with the crew's performance.  
 
         Decedent's coworkers stated that the problems with decedent's 
 
         supervisor occasionally resulted in friction between the crew 
 
         members and decedent, and between customers and decedent.
 
         
 

 
              The record also showed that decedent smoked, drank coffee, 
 
         and suffered from indigestion, which he treated with an antacid 
 
         tablet.  Claimant stated that decedent sought medical attention 
 
         in the past for indigestion, and that he often used an antacid 
 
         for this.  Claimant stated that prior to March 5, 1980, decedent 
 
         had spoken of problems with his supervisor at work, and at one 
 
         point talked of quitting.
 
         
 
              On March 5, 1980 decedent returned home from work, ate
 
         dinner with his wife and minor son, and then watched a basketball 
 
         game with his son when his wife left for a meeting.  The son 
 
         retired for the evening early, leaving decedent watching the 
 
         game.  When decedent's wife returned, she found decedent dead in 
 
         his chair with a bottle of antacid tablets spilled nearby.
 
         
 
              Both decedent's wife and son testified that decedent related 
 
         no unusual work events that evening, and displayed no excitement 
 
         during the game.  His last occasion to work overtime was February 
 
         18, 1980, over two weeks before his death.
 
         
 
              An autopsy showed decedent died of cardiac arrest due to 
 
         moderately severe atherosclerosis.  Medical testimony showed that 
 
         this is a disease that is gradually built up over a period of 
 
         years.  Risk factors include smoking, obesity, poor diet, and a 
 
         sedentary lifestyle.  Decedent had no previous history of heart 
 
         or circulation problems.  Defendant-employer's witnesses 
 
         testified they had no knowledge of any heart or circulation 
 
         problems on the part of decedent.
 
         
 
              Subsequent to decedent's death, claimant's spouse retained 
 
         legal counsel who represented the estate in probate proceedings.  
 
         That attorney forwarded a letter to defendant Iowa Electric 
 
         asking for certain company employee benefits decedent was 
 
         entitled to.  There was no reference in the letter to workers' 
 
         compensation benefits.  The company also received a copy of 
 
         decedent's death certificate showing the cause of death as 
 
         cardiac arrest as a consequence of arteriosclerotic 
 
         cardiovascular disease. 
 
         
 
              Claimant testified she had an eighth grade education, a GED, 
 
         and was considered;intelligent enough for college courses.  She 
 
         has been a homemaker most of her adult life.
 
         
 
              On cross-examination, claimant acknowledged the following: 
 
         (1) that she knew her husband's work was stressful; (2) that her 
 
         husband had seen doctors prior to his death for nerves or stress; 
 
         (3) that she knew stress sometimes caused heart attacks; (4) that 
 
         her husband had died of a heart attack; (5) that she felt a 
 
         connection might exist between her husband's work and his heart 
 
         attack and death; (6) that no written notice under section 85.23, 
 
         The Code, was forwarded to Iowa Electric; (7) that she was aware 
 
         of workers' compensation being available for injuries from an 
 
         earlier claim her husband pursued for an injured knee.
 
         
 
              Claimant indicated that prior to January 29, 1982, she did 
 
         not realize that a death from a heart attack might-be covered by 
 
         workers' compensation.  Testimony was elicited that she thought 
 
         workers' compensation applied only to injuries.  It was not until 
 
         she received legal advice on January 29, 1982, that workers' 
 
         compensation might be available that she pursued her claim, one 
 
         year and eleven months after decedent's death.  Claimant 
 
         testified as follows:
 
         
 
              Q.  Did you ever wonder whether his job might have in 
 
     
 
         
 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page   3
 
         
 
         
 
              some way contributed to his death or his heart 
 
              problem?
 
         
 
              A.  Yes, I did.
 
         
 
              Q.  Did you do anything to try and pursue that
 
              possibility? Did you require Dr. Utter or any other 
 
              doctor to see what happened?
 
         
 
              A.  No, I didn't, personally.
 
         
 
              Q.  Do you know if anyone did prior to the time you 
 
              filed your petition, let's say?
 
         
 
              A.  I don't think so.  I don't know.
 
         
 
              Q.  What was it that occurred that finally caused you 
 
              to decide to file this Worker's [sic] Compensation 
 
              claim and essentially, to assert that in fact, his 
 
              occupation was contributing factor for his death?
 
         
 
              A.  I wasn't aware that I could make such a claim until 
 
              the date that you have.  I wasn't aware that there was 
 
              this possibility.
 
         
 
              Q.  Well
 
         
 
              A.  Or that it was available.  I don't know what word I 
 
              want to use here.
 
         
 
              Q. You knew there was Worker's [sic] Compensation, 
 
              didn't you?
 
         
 
              A.  Yes.
 
         
 
              Q.  You knew that if he had been, for example, 
 
              electrocuted at his employment, that Worker's [sic] 
 
              Compensation would be available, didn't you?
 
         
 
              A.  I'm not sure I knew that.
 
         
 
              Q.  Well, you knew that if people were injured at work, 
 
              there was Worker's [sic] Compensation?
 
         
 
              A.  Yes. Yes, but I did not know in death what 
 
              happened.
 
         
 
              Q.  And you said that before that you had thought that 
 
              you had wondered in your own mind whether or not his 
 
              employment might have contributed to his death, isn't 
 
              that right?
 
         
 
              A.  Repeat that.
 
         
 
              Q.  Didn't you say a little while ago that you wondered 
 
              in your own mind whether his employment might have 
 
              contributed to his death? In some way you thought that 
 
              that might be possible?
 
         
 

 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page   4
 
         
 
         
 
              A.  I knew that  he was under stress.  I knew that he 
 
              was very nervous.
 
         
 
              Q. Okay.
 
         
 
              A.  And I did wonder if this would cause your heart to 
 
              overwork or whatever.
 
         
 
              Q.  You thought -- I think you said
 
         
 
              A.  That there could be a connection.
 
         
 
              Q.  Okay.  So what was it, then, on or about
 
              February 2 -- on or right before February 2, that you 
 
              found out that you didn't know before?
 
         
 
              A.  What did I find out? I just don't know how to 
 
              answer that.  If you -- If you have something that 
 
              caused -- that would cause death, that Worker's [sic] 
 
              Compensation was available, I never knew that before.
 
         
 
         (Claimant's Exhibit 10, pages 21-23)
 
         
 
              Q.  Now, you have covered this in your deposition and 
 
              response to some of the questions that Mr. Washburn 
 
              asked you, but I do, for the record, want to ask you 
 
              again, Mrs. Koopmans, when your husband died, did you 
 
              know that a worker's [sic] compensation claim can be 
 
              made in circumstances where job induced stress produces 
 
              a heart attack and death; did you know that?
 
         
 
              A.  No, I didn't.
 
         
 
              Q.  Had you had ever in your lifetime any experience 
 
              any worker's [sic] compensation  death  claims?
 
         
 
              A.  No.
 
         
 
              Q.  Did you know that worker's [sic] compensation 
 
              provides benefits if there is a death; did you know 
 
              that?
 
         
 
              A.  I don't think I have ever talked to anyone or known 
 
              anything about this.
 
         
 
              Q.  What did you think workers -- you knew there is a 
 
              worker's [sic] compensation law?
 
         
 
              A.  Yes.
 
         
 
              Q.  What did you think that was?
 
         
 
              A.   I thought that was for people who were like 
 
              injured on the job or that type of -- an injury or -- I 
 
              didn't even know, I never really thought about whether 
 
              it covered an illness, but I thought of it as injury.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page   5
 
         
 
         
 
              Q...At the time of your husband's death you were aware, 
 
              were you not, that stress might be related to causing 
 
              heart attacks, isn't that right?
 
         
 
              A.  Yes.
 
         
 
              Q.  And in fact at or about the time of his death, you 
 
              had some question or concern or suspicion in your own 
 
              mind that his work might have been related to his 
 
              death, isn't that true?
 
         
 
              A.  Yes.
 
         
 
         
 
         
 
              Q...And isn't it a fair statement that the only thing 
 
              that you learned in January of 1982 that you didn't 
 
              know a long time before that about this, was that 
 
              workers [sic] compensation law might provide benefits 
 
              in a work related death situation?
 
         
 
         
 
         
 
              A.  I don't think I understand that question fully.
 
         
 
              Q.  Well, didn't you testify in your direct examination 
 
              that on January 29th, 1982, Mr. Stobbs informed you 
 
              that a stress or a job stress related death might be 
 
              compensable under the worker's [sic] compensation law, 
 
              that you could get money under the worker's [sic] 
 
              compensation law.
 
         
 
              A.  Yes.
 
         
 
              Q.  And that's what caused you then to file the claim 
 
              for worker's [sic] compensation, isn't that right?
 
         
 
              A.  Yes.
 
         
 
              Q.   But all of the other facts that you have alleged 
 
              in your claim that Mr. Koopmans' job was stressful, 
 
              that stress caused his heart attack, that he died on 
 
              March 5th, 1980 of a heart attack, you knew all of 
 
              those facts long before January 29th, 1982, didn't 
 
              you?
 
         
 
              A.  Yes.
 
         
 
              Q.  Certainly more than 90 days before January 29th, 
 
              1982, isn't that true?
 
         
 
              A.  Yes.
 
         
 
         (Transcript, pp. 18-19, 21-22, 24-26)
 
         
 
              Iowa Electric asserted that the first indication they 
 
         had that claimant viewed decedent's death as job related was 
 
         when they received the original notice and petition upon 
 
         which this action is based.
 

 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page   6
 
         
 
         
 
         
 
                                APPLICABLE LAW
 
         
 
              Iowa Code section 85.23 provides:
 
         
 
              Unless the employer or his representative shall have 
 
              actual knowledge of the occurrence [sic] of an injury 
 
              received within ninety days from the date of the 
 
              occurrence [sic] of the injury, or unless the employee 
 
              or someone on his behalf or a dependent or someone on 
 
              his behalf shall give notice thereof to the employer 
 
              within ninety days from the date of the occurrence of 
 
              the injury, no compensation shall be allowed.
 
         
 
              Failure to give notice is an affirmative defense which the 
 
         employer must prove by a preponderance of the evidence.  DeLong 
 
         v. Iowa State Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
         (1941).  Mefferd v. Ed Miller & Sons, Inc., 33 Biennial Report of 
 
         the Industrial Commissioner 191 (Appeal Decision 1977).
 
         
 
              The time period contemplated in Iowa Code 85.23 does not 
 
         begin to run until the claimant has knowledge of the nature of 
 
         his disability.  Jaques v. Farmers Lumber and Supply Co., 242 
 
         Iowa 548, 47 N.W.2d 236, 239 (1951).
 
         
 
              An employer's actual knowledge of occurrence of injury must 
 
         include some information that the injury is work-connected in 
 
         order to satisfy the alternative notice of claim requirement. 
 
         Robinson v. Department of Transportation, 296 N.W.2d 809, 812 
 
         (Iowa 1980).
 
         
 
              A claimant's duty to give notice of injury arises when the 
 
         claimant should recognize the nature, seriousness and probable 
 
         compensable character of his injury or disease.  The 
 
         reasonableness of claimant's conduct is to be judged in light of 
 
         his education and intelligence.  Claimant must know enough about 
 
         the injury or disease to realize that it is both serious and work 
 
         connected, but positive medical information is unnecessary if he 
 
         has information from any source which puts him on notice of its 
 
         probable compensability.  Id.
 
         
 
              The purpose of the 90 day notice or actual knowledge 
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the acts of the injury.  Id.; Knipes v. Skelgas Co., 
 
         229 Iowa 740, 748, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 
 
         231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of Sioux 
 
         City, 368 N.W.2d 176 (Iowa 1985).
 
         
 
              The word "compensable" in the workers' compensation notice 
 
         context is not used to connote legal knowledge that a claim is 
 
         within the workers' compensation Act.  Rather, "compensable" 
 
         means that the disabling injury was work-connected.  Quaker Oats 
 
         Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979).
 
         
 
              Unless a statute that imposes a period of limitations 
 
         expressly authorizes exceptions for extenuating circumstances, it 
 
         must be applied uniformly even though the result may be harsh. 
 
         Burgess v. Great Plains Bag Corp., 409 N.W.2d 687, 679 (Iowa 
 
         1987).
 

 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page   7
 
         
 
         
 
         
 
              A mistake of law is no more an excuse in connection with a 
 
         late compensation claim than anywhere else, unless expressly made 
 
         so by statute. 3 Larson, Workmen's Compensation Law, 78.47 at 
 
         15-334.
 
         
 
                                 ANALYSIS
 
         
 
              The initial determination is whether claimant gave adequate 
 
         notice of her claim to the employer under section 85.23. The 
 
         parties agree she did not file a written notice within 90 days of 
 
         decedent's death from a heart attack.
 
         
 
              The question then is whether the employer or his 
 
         representative had actual knowledge of the injury.  The employer 
 
         knew from the death certificate that decedent died of a heart 
 
         attack.  But the 11 actual knowledge" clause also requires that 
 
         the employer be made aware that the injury or death was 
 
         work-connected.
 
         
 
              The record shows that the employer had no prior knowledge of 
 
         decedent's heart and circulation condition.  Although several 
 
         coworkers testified that decedent's work did involve stress, 
 
         three of the employer's representatives testified that they were 
 
         not aware of any health problems on the part of decedent.  
 
         However, one of the three was the foreman alleged to be a source 
 
         of the stress and his assertion may be viewed as self-serving.  
 
         Along with their testimony is the fact that claimant died at home 
 

 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page   8
 
         
 
         
 
         and had not worked overtime or on emergencies for two weeks prior 
 
         to his death.  It is therefore clear that the employer had no 
 
         actual knowledge of a connection between decedent's death and his 
 
         employment from any factors prior to his death.
 
         
 
              Subsequent to his death no new facts, medical or nonmedical, 
 
         came to the employer's attention that would give the employer 
 
         actual knowledge that decedent's heart attack at home was 
 
         work-related.  Thus, the record is devoid of any indication that 
 
         the employer knew of a connection between decedent's death by 
 
         heart attack at his home and his work until service of the 
 
         original notice and petition, almost two years after his death.  
 
         The employer therefore had no actual knowledge of the occurrence 
 
         of a work-related injury.
 
         
 
              Claimant urges that the 90 day notice period did not start 
 
         until she learned that a death could be covered under workers' 
 
         compensation.
 
         
 
              The "discovery rule" does apply to section 85.23. The 90 day 
 
         period does not,,begin to run until the claimant knew or should 
 
         have known that a compensable injury occurred.  In this regard 
 
         claimant's intelligence and education are relevant subjective 
 
         factors.  Claimant argues that her lack of sophistication in 
 
         legal and business matters kept her from recognizing that she 
 
         might have a claim.  Her first attorney basically handled 
 
         probating decedent's estate, but other than a general letter to 
 
         employer asking for employee benefits, apparently did not advise 
 
         her that a workers' compensation claim might be available.  She 
 
         acknowledged that she was not aware of this option until so 
 
         advised by her second lawyer, at which time she promptly filed an 
 
         action.
 
         
 
              It was not necessary that claimant have medical  evidence 
 
         that the heart attack may have been work-related, but information 
 
         from any source would put her on notice.
 
         
 
              Although couched in terms of "suspecting" decedent's death 
 
         was work related and "wondering" if it was covered under workers' 
 
         compensation, she nevertheless admitted that she was aware of 
 
         decedent's job stress and its possible connection to his heart 
 
         attack at all times subsequent to his death.  No new medical 
 
         information came to her other than new legal advice.
 
         
 
              The discovery rule focuses on that point in time when a 
 
         claimant knows or should know two things: that his injury is 
 
         serious, and that it is work connected.  The operative phrase is 
 
         "compensable character of the injury." What is a "compensable" 
 
         injury? Claimant argues that it is an injury which the claimant 
 
         realizes may be compensated under the workers' compensation 
 
         system.  "Compensable" here refers to the fact that the serious 
 
         injury and claimant's work are in fact connected.  To hold that 
 
         11 compensable" means a subjective understanding by claimant as 
 
         to the applicability of the workers' compensation law would be to 
 
         negate the protection provided to employers by section 85.23. A 
 
         claimant would only need to assert a lack of such an 
 
         understanding to circumvent the notice requirement.  Claimant's 
 
         failure to recognize her legal remedy in time was a mistake of 
 
         law, not a mistake of fact, and does not diminish the effect of 
 

 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page   9
 
         
 
         
 
         section 85.23 in her case.  To hold otherwise would, in effect, 
 
         restrict the applicability of the notice requirement to 
 
         situations when it could be established that claimant had 
 
         received legal advice from an attorney acquainted with the 
 
         nuances of workers' compensation law.  This is not the intent of 
 
         the discovery rule.
 
         
 
              The subjective test of the discovery rule, which looks to 
 
         claimant's intelligence and education, goes to a question of 
 
         fact, and focuses on the point in tune at which claimant could be 
 
         expected to recognize the connection between the injury and the 
 
         employment.  It does not apply to claimant's ability to recognize 
 
         her legal options and act on them diligently.
 
         
 
              The statute imposing the 90 day notice period does not make 
 
         exceptions for extenuating circumstances such as claimant's 
 
         subjective lack of education or intelligence.  Indeed, the Iowa 
 
         Supreme Court has upheld the applicability of a statute of 
 
         limitations in a workers' compensation case even against a 
 
         claimant who could not read or write.  Therefore, claimant, with 
 
         an eighth grade education, a GED, and college level intelligence 
 
         is similarly so bound by section 85.23.
 
         
 
              Thus, defendants have proven by the greater weight of the 
 
         evidence that claimant failed to comply with Iowa Code section 
 
         85.23. In light of this determination, issue 2 is now moot and 
 
         need not be addressed.
 
         
 
                             FINDINGS OF  FACT
 
         
 
              1.  That claimant was the spouse of decedent.
 
         
 
              2.  That decedent died of cardiac arrest on March 5, 1980.
 
         
 
              3.  That decedent died at home.
 
         
 
              4.  That decedent's heart or circulation problems were not 
 
         known prior to March 5, 1980.
 
         
 
              5.  That decedent may have experienced stress at work.
 
         
 
              6.  That no written notice of injury was forwarded to 
 
         employer concerning decedent's death.
 
         
 
              7.  That claimant has an eighth grade education plus a GED, 
 
         and was tested and found to be intelligent enough to attend 
 
         college courses.
 
         
 
              8.  That claimant opined that her husband's work inflicted 
 
         stress on him.
 
         
 
              9.  That claimant knew stress can cause heart attacks.
 
         
 
              10. That claimant knew her husband died of a heart  attack.
 
         
 
              11.  That at the time of decedent's death claimant thought a 
 
         connection might exist between decedent's death and his work.
 
         
 
              12.  That claimant did not know that workers' compensation 
 

 
         
 
         
 
         
 
         KOOPMANS V. IOWA ELECTRIC LIGHT AND POWER COMPANY,
 
         Page  10
 
         
 
         
 
         might provide benefits in the case of death until she was advised 
 
         of that fact by her second attorney on January 29, 1982.
 
         
 
              13.  That claimant filed her petition for arbitration on 
 
         February 2, 1982.
 
         
 
                              CONCLUSION OF LAW
 
         
 
              Claimant's action is barred for failure to give timely 
 
         notice under the provisions of Iowa Code section 85.23.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
                                        
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That each party is to pay their own costs Of this appeal and 
 
         defendant is to pay the costs of the transcription of the hearing 
 
         proceeding.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 30th day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Walter L. McNamara
 
         Attorney at Law
 
         208 Executive Plaza
 
         4403 First Avenue SE
 
         Cedar Rapids, Iowa 52402
 
         
 
         Mr. John Dale Stobbs
 
         Attorney at Law
 
         P.O. Box 472
 
         500 Bond Street
 
         Alton, Illinois 62002
 
         
 
         Ms. Julie A. Cohen
 
         Attorney at Law
 
         P.O. Box 351
 
         Cedar Rapids, Iowa 52406
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2802
 
                                                 Filed December 30, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MARGARET A. KOOPMANS,
 
         
 
              Claimant,
 
                                                 File No. 694831
 
         VS.
 
                                                   A P P E A L
 
         IOWA ELECTRIC LIGHT AND
 
         POWER COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         2802
 
         
 
              Spouse of deceased worker was held to have failed to give 
 
         notice to employer under Iowa Code section 85.23. Spouse's 
 
         failure to recognize applicability of workers' compensation law 
 
         to her husband's work-related death was held to be a mistake of 
 
         law and not a mistake of fact.  The discovery rule looks to that 
 
         point in time where claimant, in view of her education and 
 
         intelligence, should have recognized that the injury was both 
 
         serious and work related.  The discovery rule does not 
 
         contemplate a determination of when claimant recognizes her 
 
         available legal remedies.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GERALD MADSEN,                :
 
                                          :         File Nos. 695235
 
                 Claimant,                :                   808301
 
                                          :
 
            vs.                           :          R E V I E W -
 
                                          :
 
            WILSON FOODS CORPORATION,     :        R E O P E N I N G
 
                                          :
 
                 Employer,                :              A N D
 
                 Self-Insured,            :
 
                                          :      A R B I T R A T I O N
 
            and                           :
 
                                          :        D E C I S I O N S
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings brought by 
 
            Gerald Madsen against his former employer, Wilson Foods 
 
            Corporation.  File number 695235 is a proceeding in 
 
            review-reopening from a memorandum of agreement which was 
 
            filed March 12, 1982.  In that proceeding, the claimant and 
 
            the employer stipulated that he is entitled to receive 
 
            permanent partial disability for a 90 percent loss of use of 
 
            his left leg based upon an injury of February 8, 1982 to the 
 
            left knee.  The Second Injury Fund of Iowa did not join in 
 
            that stipulation.
 
            
 
                 File number 808301 deals with an alleged injury of July 
 
            13, 1985.  (The injury date was amended at hearing.)  It was 
 
            stipulated by the claimant and the employer that the 
 
            claimant was injured on that date, but the Second Injury 
 
            Fund of Iowa did not join in that stipulation.  Under file 
 
            number 808301, claimant seeks compensation from the Second 
 
            Injury Fund of Iowa.  The injury alleged is to the 
 
            claimant's right knee.
 
            
 
                 The case was heard and fully submitted at Storm Lake, 
 
            Iowa on October 4, 1990.  The record consists of joint 
 
            exhibits 1 through 45 and testimony from Gerald Madsen and 
 
            Marjorie Ann Madsen.
 
            
 
                 At pages 13, 14, 15 and 17 of exhibit 44, counsel for 
 
            the employer and the Fund objected to hypothetical questions 
 
            on the basis that the facts to be assumed were an incorrect 
 
            statement of the record.  The objections are overruled.  
 
            Rule of Evidence 705 does away with the need for an accurate 
 
            disclosure of facts before an expert opinion is issued.  
 
            Facts relied upon may be addressed on cross-examination.  
 
            The facts to be assumed may be presented to the expert in 
 
            the light most favorable to the questioning party.  Any 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            inaccuracy goes to the weight given the opinion, not to its 
 
            admissibility.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 The stipulation made by the claimant and the employer 
 
            regarding the February 8, 1982 injury is supported by an 
 
            impairment rating from orthopaedic surgeon Richard C. 
 
            Johnston, M.D.  (Exhibit 43)  The stipulation between the 
 
            claimant and the employer is found to be fair and in 
 
            conformance with the evidence in the case.  It is therefore 
 
            found that Gerald Madsen has a 90 percent permanent partial 
 
            disability of his left leg as a result of the February 8, 
 
            1982 injury.  From other evidence in the record, it is 
 
            further found that he had been previously paid 30 percent 
 
            permanent partial disability of the leg for this injury and, 
 
            prior to that time, had been paid for a 25 percent permanent 
 
            partial disability of the left leg based upon a 1974 injury.
 
            
 
                 Gerald Madsen's appearance and demeanor were observed 
 
            as he appeared at hearing and testified.  He is found to be 
 
            a fully honest and credible witness, despite some lack of 
 
            proficiency as an historian.  In particular, his deposition 
 
            testimony that he had no knee injuries between 1974 and 1985 
 
            is clearly incorrect as shown by the fact that the employer 
 
            filed a memorandum of agreement with regard to the February 
 
            8, 1982 injury and exhibits 21, 22 and 25 which likewise 
 
            make reference to intervening left knee injuries or 
 
            problems.  Claimant's testimony with regard to denial of 
 
            right knee injuries between 1974 and 1985 is, however, 
 
            supported by the evidence and is found to be correct.  The 
 
            occurrence of the July 13, 1985 right knee injury is well 
 
            corroborated by evidence in the record (exhibit 28; exhibit 
 
            29; exhibit 34, pages 2-4; exhibit 31 at notes dated June 
 
            28, 1981, November 19, 1985, December 17, 1985, January 14, 
 
            1986 and March 4, 1986).  Claimant's testimony regarding 
 
            injuring his right knee on July 13, 1985 is found to be 
 
            correct as is his testimony of increasing symptoms in the 
 
            knee following that injury and leading him into the course 
 
            of medical care which resulted in surgery to replace his 
 
            right knee.  The opinion evidence from Dr. Johnston which 
 
            finds a causal connection between the July 13, 1985 injury 
 
            and the knee replacement surgery and resulting disability is 
 
            accepted as being correct (exhibit 44, pages 12-17, 20, 21 
 
            and 24-26).
 
            
 
                 Gerald Madsen does have a long history of knee 
 
            problems.  They appear to have their origin in 1974 when he 
 
            fell while working for this employer.  He underwent surgery 
 
            on his left knee in July 1977 and again in October 1977 at 
 
            which time a total knee prosthesis was installed (exhibit 
 
            11, pages 2-6).  Thereafter, claimant continued to work for 
 
            the employer.  For a time, he also farmed.  On one occasion, 
 
            he fell, while off work, and fractured his right ankle.  
 
            There is no evidence in the record to indicate that the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            ankle fracture, or a subsequent sprain of the ankle, had any 
 
            permanent effect upon either of his knees.
 
            
 
                 Between 1977 and 1985, claimant was able to perform his 
 
            work, although he did have some occasions where left knee 
 
            symptoms were disabling, in particular the 1982 injury.  The 
 
            record fails to show any continuous patterns of problems 
 
            affecting his right knee during that span of time.  It is 
 
            clear from the evidence in the record that Gerald Madsen had 
 
            marked degenerative arthritis in his right knee prior to the 
 
            time of the 1985 injury.  That injury was certainly an 
 
            aggravation of that preexisting condition.  None of the 
 
            physicians have, however, made any apportionment of 
 
            disability as between that resulting from the injury and 
 
            that which might have preexisted.  From the record, it is 
 
            found that the right knee was generally symptom-free prior 
 
            to the time of the July 13, 1985 injury, but that 
 
            thereafter, it developed the disability which is now a 
 
            subject of this case.
 
            
 
                 Since 1977, there have been two revisions of claimant's 
 
            left knee prosthesis with the most recent having been 
 
            performed by Dr. Johnston on January 24, 1989 (exhibits 36, 
 
            37 and 41).  Dr. Johnston's 90 percent permanent impairment 
 
            rating of the left knee was made in July 1989 following the 
 
            most recent surgery on that knee.  In his deposition, Dr. 
 
            Johnston indicated that the 30 percent permanent partial 
 
            disability rating for the right knee, as had been arrived at 
 
            by Thomas W. Bower, L.P.T., and Scott B. Neff, D.O., was 
 
            reasonable (exhibit 39; exhibit 44, pages 11 and 12).  It is 
 
            therefore found that Gerald Madsen does have a 30 percent 
 
            permanent partial impairment of his right leg as a result of 
 
            the July 13, 1985 injury.
 
            
 
                 Madsen was 58 years of age at the time of hearing.  He 
 
            is a high school graduate with no further formal education 
 
            or training.  His work history consists of farming and work 
 
            for Wilson Foods Corporation.  As indicated by Dr. Johnston, 
 
            he is probably capable of performing some types of light 
 
            work, but he may need retraining and it is questionable with 
 
            regard to whether or not anyone would actually hire him 
 
            (exhibit 44, pages 16-18 and 27).  Claimant has applied 
 
            unsuccessfully for a position as a rural mail carrier.  He 
 
            attempted to sell used cars, but had no aptitude for that 
 
            type of work.  He applied to be an insurance salesman, but 
 
            was unable to pass the physical examination required for the 
 
            position.  It is specifically found that this claimant would 
 
            attempt to perform any job which had any reasonable prospect 
 
            of being within his capabilities if the same were to be 
 
            offered to him.  He is highly motivated, but is also 
 
            realistic regarding his capabilities.
 
            
 
                                conclusions of law
 
            
 
                 A memorandum of agreement, as filed in case number 
 
            695235 for the February 8, 1982 injury, conclusively 
 
            establishes the existence of the employer-employee 
 
            relationship and the occurrence of an injury arising out of 
 
            and in the course of employment.  Trenhaile v. Quaker Oats 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Co., 228 Iowa 711, 292 N.W. 799 (1940).  It does not 
 
            establish the nature or extent of disability.  Freeman v. 
 
            Luppes Transp. Co., 227 N.W.2d 143 (Iowa 1975).  It cannot 
 
            be set aside by this agency.  Whitters & Sons, Inc. v. Karr, 
 
            180 N.W.2d 444 (Iowa 1970).  It is not necessary to show a 
 
            change of condition to review the payments made under the 
 
            unilateral filing of a memorandum of agreement.  Caterpillar 
 
            Tractor Co. v. Mejorado, 410 N.W.2d 675 (Iowa 1987).  In 
 
            this case, it is determined that the additional 35 percent 
 
            permanent partial disability for the left leg which is due 
 
            in file number 695235 is payable commencing on the date the 
 
            petition was filed, namely May 1, 1989.  Dickenson v. John 
 
            Deere Products Eng'g, 395 N.W.2d 644 (Iowa App. 1986).  The 
 
            additional 35 percent permanent partial disability entitles 
 
            the claimant to recover an additional 77 weeks of 
 
            compensation under the provisions of Iowa Code section 
 
            85.34(2)(o), payable at the rate of $319.90 based upon the 
 
            February 8, 1982 injury.
 
            
 
                 In file number 808301, the stipulation made by the 
 
            claimant and employer with regard to the occurrence of 
 
            injury arising out of and in the course of employment has 
 
            been found to be supported by the facts and correct.  In the 
 
            prehearing report, it was stipulated by the parties that 
 
            permanent partial disability for that injury should be 
 
            payable commencing August 10, 1987.  It having been found 
 
            that claimant experiences a 30 percent permanent partial 
 
            disability of the left leg as a result of the July 13, 1985 
 
            injury, he is therefore entitled under Iowa Code section 
 
            85.34(2)(o) to recover 66 weeks of compensation payable at 
 
            the stipulated rate of $279.40 per week for that injury from 
 
            the employer.
 
            
 
                 Since claimant had previously lost the use of his left 
 
            leg before injuring his right leg, he is entitled to recover 
 
            benefits from the Second Injury Fund of Iowa under the 
 
            provisions of Iowa Code section 85.64.  The permanent 
 
            partial disability payable by the Second Injury Fund is 
 
            compensated industrially.  Second Injury Fund v. Mich Coal 
 
            Co., 274 N.W.2d 300 (Iowa 1979).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 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.  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.
 
            
 
                 It is specifically noted that Gerald Madsen is 
 
            approaching the age at which individuals in our society are 
 
            known to commonly retire from gainful employment.  While the 
 
            condition of his knees makes him unsuitable for many types 
 
            of employment, the same does not constitute a total loss of 
 
            his earning capacity.  When all the pertinent factors of 
 
            industrial disability are considered, it is found and 
 
            concluded that Gerald Madsen presently experiences an 80 
 
            percent reduction of his earning capacity as a result of the 
 
            condition of his knees.  This entitles him to recover 400 
 
            weeks of compensation for permanent partial disability.  
 
            After deducting the compensable value of the prior losses, 
 
            namely 198 weeks for the left leg and 66 weeks for the 
 
            right, for a total of 264 weeks, the Second Injury Fund of 
 
            Iowa is obligated to pay this claimant 136 weeks of 
 
            compensation for permanent partial disability, payable 
 
            commencing at the time the employer completes payment of the 
 
            66 weeks which were previously determined to be the extent 
 
            of its liability.  Sixty-six weeks following the date of 
 
            August 10, 1987 computes to November 14, 1988.  The Second 
 
            Injury Fund is therefore obligated to pay this claimant 136 
 
            weeks of compensation for permanent partial disability 
 
            payable commencing November 14, 1988.  The accrued amount 
 
            shall be paid in a lump sum, but without interest.  Second 
 
            Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that, in file number 695235, 
 
            Wilson Foods Corporation pay to Gerald Madsen, on account of 
 
            the February 8, 1982 injury, seventy-seven (77) additional 
 
            weeks of compensation for permanent partial disability at 
 
            the rate of three hundred nineteen and 90/100 dollars 
 
            ($319.90) per week payable commencing May 1, 1989.  The 
 
            entire amount thereof is past due and shall be paid to 
 
            Madsen in a lump sum together with interest pursuant to Iowa 
 
            Code section 85.30 computed from the date each payment came 
 
            due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 808301, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Wilson Foods Corporation pay to Gerald Madsen, on account of 
 
            the July 13, 1985 injury, sixty-six (66) weeks of 
 
            compensation for permanent partial disability at the rate of 
 
            two hundred seventy-nine and 40/100 dollars ($279.40) per 
 
            week payable commencing August 10, 1987.  The entire amount 
 
            thereof is past due and owing and shall be paid to Madsen in 
 
            a lump sum together with interest computed pursuant to Iowa 
 
            Code section 85.30 from the date each weekly payment came 
 
            due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the Second Injury Fund of 
 
            Iowa pay Gerald Madsen one hundred thirty-six (136) weeks of 
 
            compensation for permanent partial disability at the rate of 
 
            two hundred seventy-nine and 40/100 dollars ($279.40) per 
 
            week payable commencing November 14, 1988.  All past due, 
 
            accrued amounts shall be paid in a lump sum without interest 
 
            with the balance to be paid in weekly payments.
 
            
 
                 IT IS FURTHER ORDERED that costs in file number 808301 
 
            are assessed equally to the Second Injury Fund of Iowa and 
 
            the employer pursuant to rule 343 IAC 4.33 and, in file 
 
            number 695235, the costs are assessed entirely against the 
 
            employer.
 
            
 
                 IT IS FURTHER ORDERED that defendants Wilson Foods 
 
            Corporation and the Second Injury Fund of Iowa shall file 
 
            claim activity reports as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 3201
 
                           Filed January 23, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GERALD MADSEN, :
 
                      :         File Nos. 695235
 
                 Claimant, :                   808301
 
                      :
 
            vs.       :          R E V I E W -
 
                      :
 
            WILSON FOODS CORPORATION,     :        R E O P E N I N G
 
                      :
 
                 Employer, :              A N D
 
                 Self-Insured,  :
 
                      :      A R B I T R A T I O N
 
            and       :
 
                      :        D E C I S I O N S
 
            SECOND INJURY FUND, :
 
                      :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Fifty-eight-year-old claimant with two artificial knee 
 
            joints awarded 90 percent permanent partial disability from 
 
            Second Injury Fund.
 
            
 
            3201
 
            Where stipulation regarding injury arising out of and in the 
 
            course of employment and extent of disability entered into 
 
            by employer and claimant was consistent with the evidence in 
 
            the case and appeared to have been entered into in good 
 
            faith, the stipulations were adopted as being correct 
 
            despite lack of acquiescence from the Second Injury Fund.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN H. BALDUS,
 
         
 
              Claimant,                            File No. 695505
 
         
 
         VS.
 
                                                     R E V I E W -
 
         GEORGE A. HORMEL & CO.,
 
                                                  R E 0 P E N I N G
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE Co.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Steven 
 
         H. Baldus, claimant, against George A. Hormel & Co. (Hormel), 
 
         employer, and Liberty Mutual Insurance Co., insurance carrier, 
 
         for benefits as a result of an injury on February 17, 1982 (a 
 
         memorandum of agreement was filed herein on April 22, 1982).  A 
 
         hearing was held in Fort Dodge, Iowa, on December 2, 1986 and the 
 
         case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant and Kay 
 
         Baldus; claimant's exhibits 1 and 2; and defendants' exhibits A 
 
         through Y.  At the hearing held on December 2, 1986, defendants 
 
         objected to a portion of exhibit 1 (deposition of June Hageness 
 
         taken October 16, 1986 that was designated as item 7 of the 
 
         exhibit) and exhibit 2.  These objections are now overruled.  In 
 
         defendants' post trial brief, they cite the agency to Osborn v. 
 
         Massey-Ferguson, Inc., 290 N.W.2d 893 (Iowa 1980); however, the 
 
         quoted portion of this decision relates to the exclusion of 
 
         portions of a deposition, not an entire deposition.  Defendants' 
 
         argument that the entire Hageness deposition should be excluded 
 
         because it is a "discovery deposition" is without merit.  
 
         Claimant also filed a brief in this case.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $322.15; and that claimant never returned to 
 
         work after his work-related injury of February 17, 1982.
 
         
 
                                 ISSUES
 
         
 

 
         
 
         
 
         
 
         BALDUS V. GEORGE A. HORMEL & CO.
 
         Page   2
 
         
 
         
 
              The contested issues are:
 
         
 
              1)   Whether there is a causal relationship between 
 
         claimant's injury of February 17, 1982 and his asserted 
 
         disability; and
 
         
 
              2)   Nature and extent of disability; specifically, claimant 
 
         argues that his injury is a whole body injury while defendants 
 
         argue that claimant's disability is limited to his right upper 
 
         extremity.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 43 years old.  Claimant also 
 
         testified that he graduated from high school in 1961, and has had 
 
         eleven months of training in hairdressing but did not complete 
 
         this training.  He has no other technical training or formal 
 
         education.  He farmed at some point and has worked at a gas 
 
         station.  Claimant started working for Hormel in August 1971 as a 
 
         laborer; he worked at Hormel until February 17, 1982.  He was 
 
         "officially terminated" by Hormel "52 weeks later."
 
         
 
              Claimant testified that on February 17, 1982, he was working 
 
         in the cafeteria at Hormel and was required to move tables and 
 
         take the wax off the floor.  On February 16, 1982, claimant and a 
 
         foreman talked about a "potential [health] problem" because of 
 
         claimant's job.  Claimant testified that he injured his right arm 
 
         on the job when he was stripping and mopping the floor.  Prior to 
 
         February 17, 1982, claimant did not have any restrictions due to 
 
         problems with his right arm and/or right shoulder.  Claimant 
 
         sought medical attention because of his injury.  Currently, he 
 
         only goes to a doctor "if the pain gets bad."  At some point, he 
 
         was given a shot of cortisone in his right forearm.
 
         
 
              Claimant testified that after February 17, 1982, he has sold 
 
         cowboy boots and travels around the country in order to do so (he 
 
         has had this job for about two and one-half years).  The cowboy 
 
         boot job has Ono set method of compensation.O  He earned about 
 
         $5,500 the first year selling boots and about $9,000 the second 
 
         year.  He was earning $560 per week gross at the time of his 
 
         injury at Hormel.  The cowboy boot job does not have any physical 
 
         requirements.  He has no fringe benefits and no social security 
 
         taxes are withheld.  He cannot afford financially to keep this 
 
         job.   He recently drove a grain truck and this caused "lots of 
 
         problems with the right arm."
 
         
 
              Claimant testified that he currently does not use his right 
 
         arm at all unless he has to because "the minute I use it, it 
 
         hurts."  On February 17, 1982, claimant was training and breeding 
 
         horses, but cannot now physically do these things.
 
         
 
              Claimant testified that he was treated for arthritis in his 
 
         neck, knees, and hands in the early 1970's.  He also acknowledged 
 
         that he has a drinking problem and goes to AA meetings as a 
 
         result.  He has gone to the Mercy Pain Clinic in Des Moines.  He 
 
         currently is not on medication.
 
         
 
              Claimant testified that "the pain is all one from the top of 
 
         his shoulder to the forearm; it feels like one unit."  His right 
 

 
         
 
         
 
         
 
         BALDUS V. GEORGE A. HORMEL & CO.
 
         Page   3
 
         
 
         
 
         elbow and right shoulder started hurting together.  He "can't use 
 
         his right shoulder at all."  In January 1986, a lump (calcium 
 
         deposit) started on his right shoulder.  His right elbow has not 
 
         improved since February 17, 1982 and is "still painful."  His 
 
         right forearm swells once in awhile but not his right elbow.  The 
 
         pain in his right shoulder is like the pain in his neck as it 
 
         feels like one unit.  He acknowledged that he has had pain in his 
 
         neck for years.
 
         
 
              Claimant testified that he has never been released by Dr. 
 
         Birkett to return to work so he did not complete a Job Service 
 
         application to help him find work.  He last saw Dr. Birkett about 
 
         four months prior to hearing.
 
         
 
              Claimant acknowledged on cross-examination that Dr. Blessman 
 
         of the Mercy Pain Clinic is of the opinion that claimant can 
 
         work.  He also stated that the Fort Dodge Hormel plant closed in 
 
         June 1982 and claimant had an opportunity to transfer to the 
 
         Beloit, Wisconsin Hormel plant at that time; however, he "went on 
 
         disability with Hormel" instead.  He was not physically able to 
 
         start work at Beloit.  His job at Fort Dodge had been a "handicap 
 
         job" (he was on this particular handicap job for about three 
 
         months prior to February 17, 1982) and Hormel did not have such a 
 
         job for claimant at Beloit.  For eight years prior to February 
 
         17, 1982, claimant had been on a "handicap job" of some sort.
 
         
 
              Claimant testified that between 1983-86, he made "no 
 
         placement .contacts."  He did not look into any educational 
 
         opportunities during that period.  He was last in contact with 
 
         Job Service in 1983.  Between January 1986 and May 1986, claimant 
 
         was in Arizona selling boots.  Between 1973-81, he went to Iowa 
 
         City because of his neck problems and because of a problem with 
 
         one of his knees.  He "could not remember" whether he had 
 
         problems with his right shoulder in the 1970's.  Prior to 
 
         February 17, 1982, claimant did not have pain to the extent he 
 
         could not use his right shoulder.
 
         
 
              On redirect, claimant testified that he did not miss any 
 
         work during the twelve months prior to February 17, 1982 because 
 
         of his right shoulder or right elbow.
 
         
 
            Kay Baldus testified that she is claimant's spouse.  Prior to 
 
         February 17, 1982, claimant was able to do his job at Hormel and 
 
         work with horses.  He "did not exhibit any real problems with,his 
 
         right arm" prior to February 17, 1982.  After February 17, 1982, 
 
         claimant was in a lot of pain.  After February 17, 1982, he was 
 
         "hurting" and he "couldn't move his arm when he came home."  She 
 
         has to turn claimant over in bed.  Prior to February 17, 1982, 
 
         claimant missed work because of his neck problems.  For the last 
 
         two years, she has not observed any improvement in claimant's 
 
         physical condition; he cannot use his hands and arms a lot.
 
         
 
              Exhibit E, page 1, dated February 22, 1974, is authored by 
 
         Robert L. Rodnitzky, M.D., and reads in part:
 
         
 
                 Your patient Steven Baldus was seen in the Neurology 
 
              Out-Patient Department on February 19, 1974.  This 30 year 
 
              old, right handed, meat cutter suddenly became aware of neck 
 
              stiffness one year ago.  He stated that while at work he 
 

 
         
 
         
 
         
 
         BALDUS V. GEORGE A. HORMEL & CO.
 
         Page   4
 
         
 
         
 
              suddenly became unable to turn in either direction.  Within 
 
              three months this improved considerably.  In December, 1973, 
 
              his neck once again became stiff and there was difficulty in 
 
              turning his head to the left and extension.  Direct pain has 
 
              now come to radiate somewhat into the left shoulder and the 
 
              lateral aspect of the left arm.  The arm pain is 
 
              intermittent in nature.  Additionally in December he noted 
 
              the onset of a steady aching mid-lumbar pain located just to 
 
              the left of the midline.  The pain radiates into the left 
 
              lateral thigh.  There is no cough or sneeze pain.  He finds 
 
              that sleeping on his abdomen or his back results in 
 
              worsening of the back pain.  He can sleep on his side 
 
              without difficulty.  He denies weakness of the extremities 
 
              and there has been no bowel or bladder dysfunction.
 
         
 
                 The past medical history is significant in that the 
 
              patient was involved in an auto accident in 1965 during 
 
              which he states he hurt both arms so severely that he had to 
 
              keep them motionless for one week.  Family history and 
 
              review of systems was not contributory to the current 
 
              problem with the exception of complaint of frequent swelling 
 
              of the hands and feet in the past several weeks.
 
         
 
              Exhibit K, dated August 5, 1974, is authored by Dr. 
 
         Rodnitzky, and reads in part:
 
         
 
                   Your patient, Steven Baldus, was seen in the Neurology 
 
              Out-Patient Department on August 2, 1974.  Since Mr. Baldus' 
 
              last visit he attempted to return to work but was unable to 
 
              continue because of nausea and generally not feeling well.  
 
              In regard to his cervical problem, he continues to note 
 
              mid-cervical pain radiating into the right posterior 
 
              shoulder.  There are no sensory symptoms and the arms are 
 
              strong.  He denies any dysfunction in the lower extremities 
 
              with the exception of a "catch" in his right knee when 
 
              initially standing.
 
         
 
              Exhibit N (dated October 15, 1975) is authored by Dr. 
 
         Rodnitzky and reads in part: "[H]e has noted some shoulder pain 
 
         on the left .... It was my feeling that Mr. Baldus's [sic] 
 
         shoulder pain was referred for the most part from his neck."
 
         
 
              Exhibit T (dated February 26, 1982) is authored by Mark 
 
         Fortson, M.D., and reads in part: "We feel that Mr. Baldus' right 
 
         shoulder pain most likely represents right shoulder tendinitis.O
 
         
 
              Exhibit W, page 2 (dated September 27, 1982), contains Dr. 
 
         Blessman's opinion that claimant can return to work.  Exhibit X, 
 
         page 2, contains a 19 percent impairment rating for claimant's 
 
         right arm given by Thomas W. Bower, L.P.T.
 
         
 
              Dr. Birkett's deposition taken on June 12, 1985 contains 
 
         testimony on page 18 that supports claimant's material 
 
         aggravation theory.  Thomas Bower's deposition taken on February 
 
         11, 1986 contains testimony on page 9 that provides the basis for 
 
         his 19 percent impairment rating.
 
         
 
              Dr. Blessman's deposition contains the following opinion at 
 
         page 22 thereof:
 

 
         
 
         
 
         
 
         BALDUS V. GEORGE A. HORMEL & CO.
 
         Page   5
 
         
 
         
 
         
 
                 I think it was my opinion, at least, that the reason for 
 
              his failure to respond was that he had the problem of 
 
              alcoholism that was aggravating any long term or chronic 
 
              pain problem that may have been there.
 
         
 
              Q.  Okay.  Upon discharge then, did you obtain a final 
 
              diagnosis at that time?
 
         
 
              A.  Yes.
 
         
 
              Q.  What was that diagnosis?
 
         
 
              A.  His final diagnosis would have been tendinitis of the 
 
              elbow and alcoholism.
 
         
 
              Q.  All right.  There are references in this letter, and 
 
              this will be put into evidence, anyway, but to attempts to 
 
              refer him to various groups for assistance in dealing with 
 
              his alcohol addiction.  Do you know or have any information 
 
              as to whether any follow-up was made by Mr. Baldus 
 
              subsequent to his discharge from the Pain Center?
 
         
 
              A.  Up until the time of discharge, he was into a lot of 
 
              denial that he needed comprehensive treatment for his 
 
              alcoholism and did not follow through with recommendations.
 
         
 
         
 
              Exhibit 1 contains a letter dated July 16, 1982, which is 
 
         authored by W. Leimbach, M.D., that reads in part:  "We feel that 
 
         Mr. Baldus has a lateral epicondylitis as a cause of his right 
 
         elbow pain."
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant in this case bears the burden of showing that 
 
         "there resulted an ailment extending beyond the scheduled 
 
         loss...."  Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 
 
         1262, 130 N.W.2d 667, 669 (1964).  This is a question of fact 
 
         determined from the record.  Id. at 1257, 130 N.W.2d at 669.  The 
 
         Iowa Supreme Court held that such a showing had been made in 
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.w.2d 660 
 
         (1961).  There the court stated that:
 
         
 
              [W]hile the trauma, the injury, was limited to the right 
 
              foot, the Commissioner found claimant, as a result thereof, 
 
              was affected with an ailment that extended beyond the 
 
              scheduled loss of a foot, or the use thereof.  The schedule 
 
              is not applicable.
 
         
 
         Id. at 292, 110 N.W.2d at 664.
 
         
 
              The Iowa court reached a similar conclusion in Dailey v. 
 
         Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  In 
 
         Dailey, the claimant sustained an injury to his right femur.  
 
         This injury caused a shortening of the leg, which in turn 
 
         ..resulted in a tilting of the pelvis and curvature of the spine, 
 
         Id. at 763, 10 N.W.2d at 571.  On the basis of this evidence, the 
 
         court held that claimant's initial scheduled injury resulted in a 
 

 
         
 
         
 
         
 
         BALDUS V. GEORGE A. HORMEL & CO.
 
         Page   6
 
         
 
         
 
         nonscheduled permanent ailment, and that he was entitled to 
 
         nonscheduled permanent disability benefits.  Id. at 765, 10 
 
         N.W.2d at 573-74.
 
         
 
              The Iowa Court of Appeals stated in Caylor v. Employers Mut. 
 
         Cas. Co., 337 N.W.2d 890, 893 (Iowa App. 1983):
 
         
 
              The statute which confers the right to collect disability 
 
              compensation can also limit the amount of compensation 
 
              payable for specifically enumerated disabilities.  Barton v. 
 
              Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W 2d 660, 662 
 
              (1961).  Thus, Iowa Code SS 85.34(l) provides a statutory 
 
              compensation schedule for the loss of specifically 
 
              enumerated members.  "The very purpose of the schedule is to 
 
              make certain the amount of compensation in the case of 
 
              specific injuries and to avoid controversies."  Dailey v. 
 
              Pooley Lumber Co., 233 Iowa 758, 760, 10 N.W.2d 569, 571 
 
              (1943).
 
         
 
         
 
                 If a claimant's impairment is limited to a scheduled 
 
              member "we are not concerned with the question of the extent 
 
              of disability.  The compensation in that event is definitely 
 
              fixed according to the loss of use of the particular 
 
              member." Dailey, 10 N.W.2d at 571.  See also Graves v. Eagle 
 
              Iron Works, 331 N.W.2d 116, 118-119 (Iowa 1983).  "[W]here 
 
              the result of an injury causes the loss of a foot, or eye, 
 
              etc., such loss, together with its ensuing natural results 
 
     
 
         
 
         
 
         
 
         
 
         BALDUS V. GEORGE A. HORMEL & CO.
 
         Page   7
 
         
 
         
 
              upon the body, is declared to be a permanent partial 
 
              disability and entitled only to the prescribed 
 
              compensation.O  Barton, 253 Iowa at 290, 110 N.W.2d at 663. 
 
              (Emphasis added.)
 
         
 
              In the instant case, claimant's impairment that resulted 
 
         from his injury of February 17, 1982 is clearly limited to the 
 
         right upper extremity.  Claimant has therefore failed to 
 
         establish by a preponderance of the evidence that his injury is 
 
         an "unscheduled" injury.  See Lauhoff Grain Co. v. McIntosh, 395 
 
         N.W.2d 834, 835 (Iowa 1986).  Claimant's neck and shoulder 
 
         problems were present prior to February 17, 1982; that 
 
         is,claimant's injury of February 17, 1982 did not cause his neck 
 
         and shoulder problems nor does the evidence of record support the 
 
         conclusion that this injury materially aggravated claimant's 
 
         preexisting neck or shoulder problems.
 
         
 
              Claimant is entitled to 47.5 weeks of permanent partial 
 
         disability benefits commencing on October 20, 1982 based on the 
 
         19 percent impairment rating of record.  See Iowa Code section 
 
         85.34(2)(m) (this subsection determines the amount of 
 
         compensation to be paid because of an injury to a claimant's 
 
         right upper extremity).
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On February 17, 1982, claimant injured his right upper 
 
         extremity while working for Hormel stripping wax from floors and 
 
         mopping floors.
 
         
 
              2.  The physical impairment from claimant's injury of 
 
         February 17, 1982 did not extend beyond his right arm.
 
         
 
              3.  Claimant had neck and shoulder problems prior to his 
 
         February 17, 1982 injury and this injury did not cause claimant 
 
         to have neck or shoulder problems nor did it materially aggravate 
 
         his preexisting neck or shoulder problems.
 
         
 
              4.  Claimant roached maximum healing on October 19, 1982.
 
         
 
              5.  Claimant's stipulated weekly rate of compensation is 
 
         three hundred twenty-two and 15/100 dollars ($322.15).
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that his injury of February 17, 1982 caused some physical 
 
         impairment.
 
         
 
              2.  Claimant failed to establish by a preponderance of the 
 
         evidence that he sustained a whole body injury.
 
         
 
              3.  Claimant established entitlement to healing period 
 
         benefits from February 17, 1982 through October 19, 1982 and then 
 
         forty-seven point five (47.5) weeks of permanent partial 
 
         disability benefits commencing on October 20, 1982 at a rate of 
 
         three hundred twenty-two and 15/100 dollars ($322.15).
 

 
         
 
         
 
         
 
         BALDUS V. GEORGE A. HORMEL & CO.
 
         Page   8
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              That defendants pay the weekly benefits described above at a 
 
         rate of three hundred twenty-two and 15/100 dollars ($322.15).
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), formerly 
 
         Industrial Commissioner Rule 500-3.1(2), as requested by the 
 
         agency.
 
         
 
              Signed and filed this 7th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                           T. J. McSWEENEY
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Monty Fisher
 
         Attorney at Law
 
         P.O. Box 1560
 
         Snell Building, Suite 200
 
         Fort Dodge, Iowa 50501
 
         
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         503 Snell Building
 
         Fort Dodge, Iowa 50501
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        1402.40; 1803
 
                                                        Filed 1-7-87
 
                                                        T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         STEVEN H. BALDUS,
 
         
 
              Claimant,                            File No. 695505
 
         VS.
 
                                                    R E V I E W -
 
         GEORGE A. HORMEL & CO.,
 
                                                  R E 0 P E N I N G
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40; 1803
 
         
 
              Held in review-reopening that claimant's neck and shoulder 
 
         problems were not causally related to his work-related injury of 
 
         February 17, 1982.  However, claimant's disability to his right 
 
         arm was determined to be causally related to this injury.  47.5 
 
         weeks of permanent partial disability benefits were awarded based 
 
         on a 19% impairment rating for claimant's right arm.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES CONRAD,                                FILE NO. 696189
 
         
 
              Claimant,                                R E V I E W -
 
         
 
         vs.                                         R E O P E N I N G
 
         
 
         MARQUETTE SCHOOL, INC.,                      D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAY 20 1988
 
         U.S.F.& G Insurance Co.,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by James 
 
         Conrad, claimant, against Marquette School, Inc., employer, and 
 
         U.S.F. & G. Insurance Company, insurance carrier, for the 
 
         recovery of further workers' compensation benefits as a result of 
 
         an injury on January 11, 1982.  A prior review-reopening decision 
 
         for this injury was filed on April 30, 1984, following a hearing 
 
         on February 28, 1984.  This decision became a final agency 
 
         decision. On March 3, 1988, a hearing was held on claimant's 
 
         petition filed herein and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing 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.  No oral 
 
         testimony was received during the hearing in this case.  Claimant 
 
         failed to appear, but his attorney was present.  The exhibits 
 
         received into the evidence at hearing are listed in the 
 
         prehearing report.
 
         
 
              In the last review-reopening proceeding, claimant was found 
 
         to have a 10 percent permanent partial impairment to the body as 
 
         a whole as a result of the injury to his low back on January 11, 
 
         1982.  According to the decision in that proceeding, the injury 
 
         resulted in a 25 percent industrial disability and weekly 
 
         benefits were awarded accordingly.  It was also found in that 
 
         decision that claimant had other permanent partial impairments 
 
         due to non-work related causes and degenerative arthritis.  
 
         Claimant was only employed sporadically at the time of the last 
 
         hearing.  It was found in the last proceeding that claimant had a 
 
         varied work background rendering it likely that he would be able 
 
                                                
 
                                                         
 
         to find entry level positions utilizing his past experience but 
 
         that he was physically capable of only light to moderate work on 
 
         an intermittent basis.  Official notice was taken of the prior 
 
         medical records as requested by the parties.
 
         
 
                                   ISSUES
 
         
 
              The parties submit the following issues for determination in 
 
         this proceeding:
 
         
 
               I.  Whether claimant suffered a change of condition 
 
         causally related to the original work injury since the last 
 
         review-reopening proceeding; and,
 
         
 
              II.  The extent of claimant's entitlement to additional 
 
         permanent disability benefits as a result of the alleged change 
 
         of condition.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         it any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              The exact nature of the claimed change of condition in this 
 
         proceeding is somewhat in question due to claimant's failure to 
 
         testify at the hearing.  The written evidence submitted shows 
 
         that since the last proceeding, claimant has received medical 
 
         treatment from William H. Whitley, D.O., for bilateral shoulder 
 
         pain after playing volleyball in June, 1985.  An x-ray report at 
 
         that time revealed degenerative arthritis of the 
 
         acromioclavicular (A/C) joints bilaterally.
 
         
 
              In June, 1987, claimant was treated for two weeks by Nile 
 
         Kennedy, D.C., for pain and subluxations in the lower 
 
         cervical/thoracic level of his spine.  According to Dr. Kennedy, 
 
         x-rays of the low back at that time revealed some arthritic 
 
         spurring at various levels of the low back but Dr. Kennedy in his 
 
         deposition stated that this spurring was not a source of 
 
         claimant's pain complaints to him.
 
         
 
              Also, offered into the record was evidence that claimant was 
 
         rejected from a job titled "water superintendent" by the City of 
 
         Westpoint, Iowa due to his back problems.  According to the city 
 
         administrator at the time, this job required occasional heavy 
 
         lifting.
 
         
 
              Finally, William Boulden, M.D., an orthopedic surgeon, 
 
         opined from a review of most of the records in this case that 
 
                                                
 
                                                         
 
         claimant's current arthritis spurring in the low back is not work 
 
         related.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              In a review-reopening proceeding, claimant has the burden of 
 
         establishing by a preponderance of the evidence that he suffered 
 
         a change in condition or a failure to improve as medically 
 
         anticipated as a proximate result of the original injury, 
 
         subsequent to the date of the award or agreement for compensation 
 
         under review, which entitles him to additional compensation. 
 
         Deaver v. Armstrong Rubber Company, 170 N.W.2d 455 (Iowa 1969); 
 
         Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa App. 272 N.W.2d 
 
         24 (1978).  Such a change of condition is not limited to a change 
 
         of physical change of condition.  A change in earning capacity 
 
         subsequent to the original award which is approximately caused by 
 
         the original injury also constitutes a change in condition under 
 
         Iowa Code section 85.26(2) and 86.14(2).  See McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              Claimant has not demonstrated even an argueable case for 
 
         additional benefits.  His only recent complaints of difficulties 
 
         involve the upper back and shoulders, not the low back.
 
         
 
              All costs requested by defendants are assessed against 
 
         claimant except that defendants may not receive more than $150.00 
 
         for the cost of any written report.  It is the position of this 
 
         agency that a doctor should not receive more fees for a written 
 
         report than he would receive from oral testimony.  The parties 
 
         stipulated in the prehearing report that the request for costs 
 
         have been paid.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant has had upper back and shoulder problems since 
 
         the last review-reopening proceeding in 1984.
 
         
 
              2.  Claimant has degenerative arthritic spurring in the low 
 
         back vertebras.
 
         
 
              3.  Since the last review-reopening proceeding, claimant has 
 
         been rejected from a job due to an inability to perform heavy 
 
         lifting.
 
         
 
              It could not be found from the evidence presented that the 
 
         shoulder and arthritic conditions were related to the original 
 
         injury.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence entitlement to additional workers' compensation 
 
         benefits.
 
         
 
                                                
 
                                                         
 
                                   ORDER
 
         
 
              1.  Claimant shall take nothing from this proceeding.
 
         
 
              2.  Claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 and specifically 
 
         taxed as costs are the items listed in claimant's request filed 
 
         April 8, 1988, except that defendants shall not receive more than 
 
         one hundred fifty and no/100 dollars ($150.00) for any written 
 
         medical report.
 
         
 
         
 
              Signed and filed this 20th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
                                   
 
                                                         
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa  52632-1066
 
         
 
         Mr. Ross H. Sidney
 
         Mr. Stephen D. Hardy
 
         Ms. Iris J. Post
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P. 0. Box 10434
 
         Des Moines, Iowa  50306
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1800
 
                                            Filed May 20, 1988
 
                                            LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES CONRAD,
 
         
 
              Claimant,
 
                                                      FILE NO. 696189
 
         vs.
 
                                                         R E V I E W
 
         MARQUETTE SCHOOL, INC.,
 
                                                     R E 0 P E N I N G
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         U.S.F.& G Insurance Co.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1800
 
         
 
              Claimant denied additional permanent partial disability 
 
         benefits for a failure to show a change in condition.  The case 
 
         was not found to be argueable and claimant was assessed the 
 
         costs.