BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JOYCE BURKHEAD,
 
        
 
            Claimant,
 
        
 
        vs.                               File No 728496
 
        
 
        DR KEN HENRICHSEN d/b/a            A P P E A L
 
        WINTERSET VETERINARY CLINIC,
 
                                         D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        UNITED FIRE & CASUALTY COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability and medical benefits
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; claimant's exhibits 1 through 12; and 
 
        defendants' exhibit A Both parties filed briefs on appeal
 
        
 
                                      ISSUES
 
                                                
 
        Defendants state the following issues on appeal:
 
        
 
        1 The arbitration decision is in error in its finding that on 
 
        April 23, 1983, Joyce Burkhead suffered disablement as the result 
 
        of an occupational disease which arose out of and in the course 
 
        of her employment at the Winterset Veterinary Clinic
 
        
 
        2 The arbitration decision is in error in its finding that all of 
 
        the symptoms and alleged disability of Joyce Burkhead at the time 
 
        of the hearing are correctly related to an occupational disease 
 
        and adequately demonstrated to have sufficient nexus to her 
 
        chemical exposure as determined by her attending physicians.
 
        
 
        3 The arbitration decision is in error in its finding that Joyce 
 
        Burkhead has a physical impairment rating of 25% to 30% directly 
 
        related to her chemical exposure at Winterset Veterinary Clinic.
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 2
 
        
 
        
 
        4. The arbitration decision is in error in its finding that Joyce 
 
        Burkhead has sustained an industrial disability rating of 45% 
 
        related directly to her chemical exposure while employed at the 
 
        Winterset Veterinary Clinic.
 
        
 
        5. The arbitration decision is in error in its finding that Joyce 
 
        Burkhead is entitled to temporary total disability benefits for 
 
        the period September, 1983 through June, 1984.
 
        
 

 
        
 
 
 
 
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally set forth herein.
 
        
 
        Claimant worked from September 1981 until April 1983 as a 
 
        secretary and mixer of feed additives for defendant Winterset 
 
        Veterinary Clinic (hereinafter defendant). Claimant was required 
 
        to mix liquid and dry chemicals in a large garbage can, which 
 
        resulted in chemical dust in the air and on surfaces where 
 
        claimant worked. Claimant initially was required to work without 
 
        protection, but later was issued gloves and masks. Claimant and a 
 
        coworker testified that claimant was regularly exposed to 
 
        physical contact with the dust on her hands, face, eyes, nose, 
 
        mouth, hair, and also breathed the chemical dust. The dust 
 
        contained such chemicals as copper sulfate, arsonilic acid, and 
 
        F.O.A. 290. Claimant testified she was not exposed to these 
 
        chemicals at any location other than her employment with 
 
        defendant, and has not been exposed to those chemicals since 
 
        leaving her employment there.
 
        
 
        Prior to 1980, claimant worked for another veterinary clinic 
 
        where she mixed antibiotics. Claimant experienced an allergic 
 
        rash on the face in the earlier employment due to exposure to 
 
        Glytassin and Oxytetracycline powder. Claimant as diagnosed by 
 
        Robert T. Schulze, M.D., a dermatologist, as having contact 
 
        dermatitis at that time.
 
        
 
        Approximately three months after beginning employment with 
 
        defendant in September 1981, claimant experienced headaches, 
 
        watering eyes, post nasal drainage and nasal congestion. Claimant 
 
        testified that these symptoms became worse during the times she 
 
        was required to mix chemicals.
 
        
 
        In January 1983, claimant experienced a rash on her face and 
 
        edema of the eyelids. Claimant saw Dr. Schulze again and was 
 
        treated with steroid injections, eyedrops and skin ointments. 
 
        between January 1983 and March 1983, claimant experienced watery 
 
        eyes and nasal congestion, post nasal drainage, headaches and
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 3
 
        
 
        fatigue. Claimant experienced these symptoms as soon as she began 
 
        work in the morning, with the symptoms decreasing after she went 
 
        home.
 
        
 
        Claimant was referred by her employer to Roger I. Ceilley, M.D., 
 
        a dermatologist. After conducting patch tests, Dr. Ceilley found 
 
        that claimant was highly sensitive to copper sulfate, and also 
 
        sensitive to arsonilic acid, F.O.A. 290, and quaternium-15.
 
        
 
        On March 15, 1983, claimant mixed a bag of feed additive. That 
 
        evening, her eyes began to water and swell. Claimant reported to 
 
        work the next day with one eye swollen nearly shut. Her employer, 
 
        Dr. Henrichsen, noticed her condition and commented that it was 
 
        probably due to the chemicals she had mixed the day before. 
 
        Claimant again saw Dr. Ceilley with complaints of nausea and 
 
        muscle aches as well, and was hospitalized. Claimant was 
 
        diagnosed as having a hypersensitive reaction to the chemicals at 
 
        her place of employment. Claimant returned to work, but after 
 
        three or four days again developed headaches, watery eyes, and 
 
        nasal congestion. On April 24, 1983, claimant discontinued her 
 
        employment with defendant pursuant to medical advice.
 
        
 
        Claimant was referred by Dr. Ceilley to John A. Caffrey, M.D., 
 

 
        
 
 
 
 
 
        for immunotherapy in May of 1983. Claimant reported eye 
 
        difficulties, severe diarrhea, head congestion, dizziness, 
 
        headaches and muscle cramps to Dr. Caffrey. Further patch testing 
 
        revealed that claimant was allergic to 28 different items, 
 
        including housedust, cement, leathers, cats and tobacco. Claimant 
 
        is a smoker. Claimant testified that prior to working for Dr. 
 
        Henrichsen, she did not experience any reactions to tobacco, cats 
 
        or the other items she has been diagnosed as being sensitive to. 
 
        Dr. Caffrey concluded that claimant. is suffering from a 
 
        perennial allergic rhinitis and conjunctivitis as a result of an 
 
        occupational exposure to chemicals, and that claimant's symptoms, 
 
        including headaches, muscle cramps, tiredness, and dizziness were 
 
        attributable to claimant's exposure to copper sulfate.
 
        
 
        Claimant testified she would be able to avoid exposure to copper 
 
        sulfate,F. O. A. 290 and arsonilic acid if she did not work in a 
 
        veterinary clinic. However, Dr. Caffrey testified as follows:
 
        
 
        Q. Doctor, depending on whether or not her symptoms are related 
 
        back to that, if she was not to come in contact at all from this 
 
        day forward with any copper sulfate or FOA 290 or Spectinomycin, 
 
        would she in the future have any condition that would be related 
 
        back to that exposure?
 
        
 
        A. You know, if you read this from the health admin-
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 4
 
        
 
        
 
        
 
        istration about copper and mists and so forth I haven't read that 
 
        recently; but, in essence, the long-term effects would -- she 
 
        would not get over them, in other words. In other words, she 
 
        probably had breathed this stuff into her lungs to the point 
 
        where she wouldn't get well if she avoided all this stuff. In 
 
        other words, she has a -- what should I say -- a permanent-type 
 
        problem from breathing this copper mist.
 
        
 
        (Caffrey Deposition, pages 32-33)
 
        
 
        Part of exhibit 1, titled "Occupational Health Guideline for 
 
        Copper Dusts and Mists," relied on by Dr. Caffrey, lists the 
 
        effects of short-term exposure to copper sulfate dust or 
 
        mist as "a feeling of illness similar to the common cold with 
 
        sensations of chills and stuffiness of the head. Small copper 
 
        particles may enter the eye and cause irritation, discoloration, 
 
        and damage." That document also states, "On ingestion, copper 
 
        salts act as irritants and cause nausea, vomiting, abdominal 
 
        pain, hemorrhagic gastritis, and diarrhea. Copper salts splashed 
 
        in the eye caused conjunctivitis...." Other symptoms included a 
 
        metallic taste. One of claimant's fellow workers testified that 
 
        the chemical dust claimant was exposed to produced a metallic 
 
        taste as well.
 
        
 
        Following termination of her employment at the veterinary clinic, 
 
        claimant was given another job by defendant in another of 
 
        defendant's businesses, Tempe Manufacturing, from May 1983 until 
 
        September 1983 when claimant was laid off for economic reasons. 
 
        Claimant then sought other employment but was out of work for 
 
        approximately eight or nine months. Claimant eventually obtained 
 
        employment as a waitress with a former employer at 
 
        $3.50 - $3.95 per hour, as opposed to the $5.00 per hour she was 
 
        earning at the veterinary clinic. Claimant stated that she worked 
 
        at this job even though she continued to experience digestive 
 
        tract symptoms because it was financially necessary for her to 
 

 
        
 
 
 
 
 
        work. Claimant testified that her friendship with the employer 
 
        played a role in obtaining this position. Claimant. later 
 
        obtained work as a waitress with another employer. Claimant 
 
        testified that if she had continued to work for defendant, she 
 
        would presently be earning 48.00 per hour.
 
        
 
        Mark T. Thoman, M.D., a clinical toxicologist, opined 
 
        that much of the damage suffered by claimant was due to 
 
        inhalation of the chemicals as opposed to claimant's earlier 
 
        contact exposure with a prior veterinary employer. Dr. Thoman 
 
        attributed claimant's present condition to both continuous 
 
        exposure and a one-day intense exposure. Dr. Thoman assigned 
 
        claimant an impairment rating of 15 percent, but in October of 
 
        1986 Dr. Thoman changed that rating to 25 - 30 percent of the 
 
        body as a whole when expected improvement did not occur: "It is 
 
        my opinion that Joyce Burkhead has a permanent whole body 
 
        disability of 25-30%.
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 5
 
        
 
        
 
        this impairment rating is directly causally connected to her 
 
        employment at the Winterset Veterinary Clinic and exposure to 
 
        chemicals there...." (Claimant's Exhibit l)
 
        
 
        Dr. Thoman stated that claimant's condition was permanent, and 
 
        that claimant's exposure had affected tissue in such a way as to 
 
        make claimant hypersensitive to many chemicals and substances she 
 
        would not have reacted to before. Dr. Thoman described claimant 
 
        as being more susceptible to infection as a result of her 
 
        exposure to the chemicals at the veterinary clinic, and stated 
 
        that claimant could not work in environments that contained 
 
        various other chemicals, such as formaldehyde in a clothing 
 
        store.
 
        
 
        Dr. Thoman also testified that claimant's allergy to cats and 
 
        tobacco would not be the cause of her present condition, although 
 
        claimant may react more to these substances after her exposure at 
 
        the veterinary clinic. Dr. Thoman stated that claimant's 
 
        preexisting allergic rhinitis was not a part of his rating or 25 
 
        - 30 percent impairment of the body as a whole, in that 
 
        claimant's prior exposure was contact dermatitis, and claimant's 
 
        present condition stemmed from inhalation of the chemicals. Dr. 
 
        Thoman stated that the 25 - 30 percent impairment rating of the 
 
        body as a whole was completely attributable to claimant's 
 
        exposure while in defendant's employment, and that claimant had 
 
        suffered a 25 - 30 percent impairment of the body as a whole 
 
        above and beyond any preexisting condition or other allergy. The 
 
        rating of impairment was based on claimant's hypersensitivity to 
 
        metals, resulting in chronic infections, fatigue, digestive tract 
 
        problems, chronic eye problems, and muscle cramps.
 
        
 
        Dr. Thoman referred claimant to Steven Zorn, M.D., a specialist 
 
        in pulmonary medicine. Dr. Zorn opined:
 
        
 
        reaction to various agents (F.O.A. -290, arsonilic acid, copper 
 
        sulfate) in the work place. These hypersensitivity reactions are 
 
        likely to have secondarily obstructed drainage passages from the 
 
        frontal and maxillary sinuses and resulted in a frontal and 
 
        maxillary sinusitis which is presently ongoing in nature.
 
        
 
        (Cl. Ex. 1)
 
        
 
        Dr. Zorn testified that he was in agreement with Dr. Thoman as to 
 
        the causal connection between claimant's present condition and 
 

 
        
 
 
 
 
 
        her work exposure to chemicals, and as to the extent of her 
 
        present impairment. Dr. Zorn felt that claimant's condition was 
 
        due to multiple exposures. Dr. Zorn did not feel that claimant's 
 
        smoking contributed to her condition, as claimant smoked before 
 
        the exposure without reaction. Dr. Zorn did
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 6
 
        
 
        
 
        conclude that claimant's chronic sinusitis was bacterial in 
 
        nature, but secondary to the blockage caused by the chemic 
 
        exposure.
 
        
 
        Robert Updegraff, M.D., an otolaryngologist employed by 
 
        defendant, opined that claimant's present condition was the 
 
        result of various allergies, including tobacco, and a "mild 
 
        moderate" deviated septum. Dr. Updegraff stated that the deviated 
 
        septum "could possibly" contribute to claimant's nasal 
 
        congestion.
 
        
 
        Thomas B. Summers, M.D., a neurologist, opined that claimant was 
 
        experiencing a psychophysiologic reaction and depression.
 
        
 
        Claimant testified that she continues to experience headaches, 
 
        nausea, watery eyes, muscle cramps, and daily diarrhea. Claimant 
 
        was 46 years old at the time of the hearing and did not have a 
 
        high school diploma.
 
        
 
        The parties stipulated that claimant was off work from September 
 
        1, 1983 until June 1, 1984; if claimant has a permanent 
 
        disability, it is an industrial disability; claimant's rate of 
 
        compensation is $132.82 per week.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of March 15, 1983 is causally related to 
 
        the disability on which she now bases her claim. Bodish v. 
 
        Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
        L.O. Bogqs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N. W. 2d 732 (1955). 
 
        The question of causal connection is essentially within the 
 
        domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 
 
        251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
        Expert medical evidence must be considered with all other 
 
        evidence introduced bearing on the causal connection. Burt, 247 
 
        Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 
        couched in definite, positive or unequivocal language. Sondag v. 
 
        Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert 
 
        opinion may be accepted or rejected, in whole or in part, by the 
 
        trier of fact. Id. at 907. further, the weight to be given to 
 
        such an opinion is for the finder of fact, and that may be 
 
        affected by the completeness of the premise given the expert and 
 
        other surrounding circumstances. Bodish, 257 Iowa 516, 133 
 
        N.W.2d 867. See also Musselman v. Central Telephone Co., 261 
 
        Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
        Section 85A.4, (1981) Code of Iowa, states:
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 7
 
        
 
        
 

 
        
 
 
 
 
 
        Disablement as that term is used in this chapter is the event or 
 
        condition where an employee becomes actually incapacitated from 
 
        performing his work or from earning equal wages in other suitable 
 
        employment because of an occupational disease as defined in this 
 
        chapter in the last occupation in which such employee is 
 
        injuriously exposed to the hazards of such disease.
 
        
 
        Section 85A.5, (1981) Code of Iowa, states:
 
        
 
        All employees subject to the provisions of this chapter who shall 
 
        become disabled from injurious exposure to an occupational 
 
        disease herein designated and defined within the conditions, 
 
        limitations and requirements provided herein, shall receive 
 
        compensation, reasonable surgical, medical, osteopathic, 
 
        chiropractic, physical rehabilitation, nursing and hospital 
 
        services and supplies therefor, and burial expenses as provided 
 
        in the workers' compensation law of Iowa except as otherwise 
 
        provided in this chapter.
 
        
 
        If, however, an employee incurs an occupational disease for which 
 
        he would be entitled to receive compensation if he were disabled 
 
        as provided herein, but is able to continue in employment and 
 
        requires medical treatment for said disease, then he shall 
 
        receive reasonable medical services therefor.
 
        
 
        Section 85A.8, (1981) Code of Iowa, states:
 
        
 
        Occupational diseases shall be only those diseases which arise 
 
        out of and in the course of the employee's employment. Such 
 
        diseases shall have a direct causal connection with the 
 
        employment and must have followed as a natural incident thereto 
 
        from injurious exposure occasioned by the nature of the 
 
        employment. Such disease must be incidental to the character of 
 
        the business, occupation or process in which the employee was 
 
        employed and not independent of the employment. Such disease need 
 
        not have been foreseen or expected but after its contraction it 
 
        must appear to have had its origin in a risk connected with the 
 
        employment and to have resulted from that source as an incident 
 
        and rational consequence. A disease which allows from a hazard to 
 
        which an employee has or would have been equally exposed outside 
 
        of said occupation is not compensable as an occupational disease.
 
        
 
        Section 85A.10, (1981) Code of Iowa, states:
 
        
 
        There compensation is payable for an occupational disease, the 
 
        employer in whose employment the employee
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 8
 
        
 
        
 
        was last injuriously exposed to the hazards of such disease, 
 
        shall be liable therefor. The notice of injury and claim for 
 
        compensation as hereinafter required shall be given and made to 
 
        such employer, provided, that in case of pneumoconiosis, the only 
 
        employer liable shall be the last employer in whose employment 
 
        the employee was last injuriously exposed to the hazards of the 
 
        disease during a period of not less than sixty days.
 
        
 
        Section 85A.7(4), (1981) Code of Iowa, states:
 
        
 
        Where such occupational disease is aggravated by any other 
 
        disease or infirmity not of itself compensable, or there 
 
        disability or death results from any other cause not of itself 
 
        compensable but is aggravated, prolonged or accelerated by such 
 
        an occupational disease, and disability results such as to be 
 

 
        
 
 
 
 
 
        compensable under the provisions of this chapter, the 
 
        compensation payable shall be reduced and limited to such 
 
        proportion only of the compensation that would be payable if the 
 
        occupational disease was the sole cause of the disability or 
 
        death, as such occupational disease bears to all the causes of 
 
        such disability or death. Such reduction or limitation in 
 
        compensation shall be effected by reducing either the number of 
 
        weekly payments or the amount of such payments as the industrial 
 
        commissioner may determine is for the best interests of the 
 
        claimant or claimants.
 
        
 
        To prove causation of an occupational disease, "the disease must 
 
        be causally related to the exposure to harmful conditions of the 
 
        field of employment.... Secondly, those harmful conditions must 
 
        be more prevalent in the employment concerned than in everyday 
 
        life or in other occupations." McSpadden v. Big Ben Coal Co., 
 
        288 N.W.2d 181, 190 (Iowa 1980).
 
        
 
        Where an employee is injuriously exposed to hazardous conditions 
 
        producing occupational disease while employed by several 
 
        different employers, the employer where he was last injuriously 
 
        exposed would be liable for the total disability. Doerfer v. 
 
        Nicol, 359 N.W.2d 428 (Iowa 1984).
 
        
 
        To be compensable, an aggravation of an occupational disease must 
 
        be more than a temporary one curable by removal from the 
 
        exposure. McNeil v. Grove Feed Mill, II Iowa Industrial 
 
        Commissioner Report 261 (Appeal Decision 1981).
 
        
 
        Section 85.34(1), (1981) Code of Iowa, states:
 
        Healing period. If an employee has suffered a personal injury 
 
        causing permanent partial disability for which compensation is 
 
        payable as provided in
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 9
 
        
 
        
 
        subsection 2 of this section, the employer shall pay to the 
 
        employee compensation for a healing period, as provided in 
 
        section 85.37, beginning on the date of the injury, and until he 
 
        has returned to work or competent medical evidence indicates that 
 
        recuperation from said injury has been accomplished, whichever 
 
        comes first.
 
        
 
                                      ANALYSIS
 
        
 
        Claimant has alleged that her present condition is the result of 
 
        a compensable work injury or, in the alternative, that her 
 
        present condition is caused by an occupational disease. Under 
 
        either chapter 85 or chapter 85A, claimant must show that her 
 
        injury or occupational disease arose out of and was in the course 
 
        of her employment. It is clear that claimant has had an allergic 
 
        reaction to chemicals which the defendant employer utilizes. 
 
        Claimant experienced the onset of symptoms the same day as the 
 
        intense exposure, and her employer attributed her symptoms to the 
 
        previous days activities which involved mixing the chemicals. 
 
        Claimant also had symptoms prior to that incident, and noticed 
 
        that her symptoms increased while at work and decreased when away 
 
        from work. The record clearly establishes that claimant was 
 
        exposed to the chemicals copper sulfate, F.O.A. 290 and arsonilic 
 
        acid in the course of her work, and that her allergic reactions 
 
        to those chemicals arose out of her employment with defendant. 
 
        Claimant has met her burden under chapter 85A to show that during 
 
        her employment with defendant, she suffered an occupational 
 
        disease arising out of and in the course of her employment with 
 

 
        
 
 
 
 
 
        defendant.
 
        
 
        Under both chapters 85 and 85A, claimant is also required to 
 
        prove a causal connection between her injury or occupational 
 
        exposure and her present condition. All of claimant's symptoms, 
 
        with the exception of sinusitis, have been causally connected 
 
        with her exposure to copper sulfate, F.O.A. 290 and a.sonilic 
 
        acid while employed by defendant by Dr. Ceilley, Dr. Caffrey, Dr. 
 
        Thoman and Dr. Zorn. Dr. Updegraff's report notes a septum 
 
        deviation that was not noted by other physicians. Dr. Updegraff 
 
        states that claimant's septum deviation could contribute to 
 
        claimant's nasal stuffiness and congestion. Dr. Zorn indicates 
 
        that claimant's sinusitis may be caused by bacteriological 
 
        infection. Those medical opinions are given as possibilities 
 
        rather than probabilities. It is concluded that claimant has 
 
        established that her headaches, muscle cramps, diarrhea, nausea, 
 
        dizziness, watery eyes,fatigue, sinusitis and allergic reactions 
 
        to copper sulfate,F.O.A. 290 and arsonilic acid are causally 
 
        related to her chemical exposure while employed by defendant.
 
        
 
        Claimant was exposed to the chemicals copper sulfate, F.O.A. 290 
 
        and arsonilic acid in large quantities as part of her work in the 
 
        veterinarian's office. These were chemicals regularly used in the 
 
        employer's business and were incidental
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC
 
        Page 10
 
        
 
        
 
        to it. As an employee of defendant, claimant was exposed to these 
 
        substances to a much greater degree than other persons in the 
 
        general public would be exposed to them. Claimant has proven by a 
 
        preponderance of the evidence that she suffers from an 
 
        occupational disease as a result of her employment with 
 
        defendant. Although a traumatic exposure incident is present, 
 
        the medical testimony shows that claimant's present condition is 
 
        caused by her long term exposure to the chemicals.
 
        
 
        Claimant is also required to prove under chapter 85A that the 
 
        chemical exposure has resulted in disablement. The medical 
 
        testimony of Dr. Thoman and Dr. Zorn shows that claimant now has 
 
        a permanent sensitivity to copper sulfate, F.O.A. 290 and 
 
        arsonilic acid. Claimant cannot work in environments with those 
 
        chemicals without experiencing an allergic reaction. In addition, 
 
        claimant's exposure to these chemicals has resulted in 
 
        sensitivity to other substances as well. The testimony of Dr. 
 
        Thoman establishes that claimant is now more sensitive to metals 
 
        and other substances, as well as being more sensitive to 
 
        substances she was previously allergic to.
 
        
 
        Claimant is clearly disabled from returning to her work for 
 
        defendant, or working for any veterinarian. Claimant cannot work 
 
        in any industrial environment where copper sulfate, F.O.A. 290, 
 
        or arsonilic acid are present. It appears that claimant would 
 
        need to avoid employment where metals and other substances are 
 
        utilized. Claimant is disabled from returning to the type of 
 
        work she was performing at the time of her chemical exposure, and 
 
        thus satisfies the first prong of the two-part disablement test 
 
        under section 85A.4.
 
        
 
        Claimant is also disabled from obtaining other suitable work as 
 
        well. Claimant was unable to find employment for several months 
 
        after she was required to leave her employment with Tempe 
 
        .MAnufacturing. However, claimant has now obtained work as a 
 
        waitress, but does not earn as much money as she did while 
 
        working for defendant. claimant has experienced a loss of 
 

 
        
 
 
 
 
 
        earnings as a result of her need to change occupations. Claimant 
 
        has satisfied her burden under the second prong of the two-part 
 
        test under section 85A.4 to show that she is incapacitated from 
 
        working in other suitable employment where she can earn wages 
 
        equal to those she was earning at the time of her chemical 
 
        exposure. Claimant's date of disablement is the date she left her 
 
        employment with Tempe Manufacturing in September 1983.
 
        
 
        Under section 85A.5, second unnumbered paragraph, a claimant who 
 
        is able to "continue in employment" after incurring an 
 
        occupational disease is entitled to medical services but is not 
 
        entitled to compensation while so employed. However, in the 
 
        instant case, although claimant is now employed, claimant was not 
 
        able to "continue in employment." Claimant was unable
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 11
 
        
 
        
 
        to return to her work at the veterinary clinic because of her 
 
        occupational disease. Claimant's inability to work around the 
 
        chemicals at the veterinary clinic is permanent. Her work as a 
 
        waitress is of a different nature than her work at the veterinary 
 
        clinic and does not expose claimant to chemicals. Claimant was 
 
        out of work for several months. Claimant has not continued in 
 
        employment and is therefore eligible for compensation benefits 
 
        under section 85A.5.
 
        
 
        The extent of claimant's disablement must be determined. Dr. 
 
        Thoman assigned claimant an impairment rating of 25 - 30 percent 
 
        of the body as a whole. Claimant cannot return to the work she 
 
        previously held, and in addition cannot work in other occupations 
 
        where several substances are present. However, claimant can work 
 
        in several occupations where chemical exposure can be avoided. 
 
        Claimant has suffered a loss of earnings. Claimant was 46 years 
 
        old at the time of the hearing, and lacked a high school 
 
        education. Based on these and all other appropriate factors for 
 
        determining industrial disability, claimant is determined to have 
 
        an industrial disability of 30 percent.
 
        
 
        Claimant had some symptoms of allergies prior to her employment 
 
        with defendant. The earlier incident while claimant was employed 
 
        by another veterinarian, however, does not appear to have caused 
 
        any permanent disability. Claimant's testimony that she did not 
 
        suffer any ill effects as a result of smoking or being around a 
 
        cat prior to her employment with defendant is unrebutted. Dr. 
 
        Thoman assigned claimant an impairment rating of 25 - 30 percent 
 
        of the body as a whole, based exclusively on the effects of the 
 
        chemical exposure while in defendants' employ and apart from any 
 
        prior allergies. Claimant's present condition is attributable to 
 
        claimant's chemical exposure in defendant's employ and 
 
        apportionment under section 85A.,(G) is not appropriate.
 
        
 
        Defendants on appeal assert as an issue: " The arbitration 
 
        decision is in error in its finding that Joyce Burkhead is 
 
        entitled to temporary total disability benefits for the period 
 
        September, 1983 through June, 1984." However, the arbitration 
 
        decision does not award temporary total disability benefits. 
 
        Healing period benefits are awarded from September 1, 1983 
 
        through April 24, 1984. It is presumed that defendant seeks 
 
        review of that portion of the arbitration order providing for 
 
        healing period benefits. Section 85. 34(1) Code of Iowa, 
 
        applicable to an occupational disease under section 85A.16, 
 
        states that healing period benefits are payable from the date of 
 
        injury until the employee has returned to work or until competent 
 
        medical evidence indicates that recuperation has been 
 

 
        
 
 
 
 
 
        accomplished, whichever occurs first. In the instant case, 
 
        claimant was last injuriously exposed to the chemicals when she 
 
        left her employment at the veterinary clinic on April 24, 1983. 
 
        Claimant was then rehired
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 12
 
        
 
        
 
        by defendant to work at Tempe Manufacturing, another of 
 
        defendant's business ventures, in May of 1983. Claimant thus 
 
        returned to work, and under section 85.34(1), her healing period 
 
        ended at that time.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant worked from September 1981 until April 1983 as a 
 
        secretary and mixer of feed additives for defendant veterinary 
 
        clinic.
 
        
 
        2. Claimant was regularly exposed to copper sulfate, arsonilic 
 
        acid, and F.O.A. 290 as part of her duties.
 
        
 
        3. Approximately three months after beginning employment with 
 
        defendant in September 1981, claimant experienced headaches, 
 
        watering eyes, post nasal drainage and nasal congestion, and 
 
        fatigue.
 
        
 
        4. Claimant was diagnosed as being highly sensitive to copper 
 
        sulfate, and also sensitive to arsonilic acid, F.O.A. 290, and 
 
        quaternium-15.
 
        
 
        5. On March 15, 1983, claimant mixed a bag of feed additive 
 
        containing copper sulfate, F.O.A. 290 and arsonilic acid. 
 
        Claimant experienced nausea and muscle aches. Claimant was 
 
        Diagnosed as having a hypersensitive reaction to the chemicals at 
 
        her place of employment.
 
        
 
        6. On April 24, 1983 claimant discontinued her employment with 
 
        defendant pursuant to medical advice.
 
        
 
        7. Patch testing revealed that claimant was allergic to 28 
 
        different items, including house dust, cement, leathers, cats and 
 
        tobacco. Claimant is a smoker.
 
        
 
        8. Claimant was also diagnosed as suffering from a perennial 
 
        allergic rhinitis and conjunctivitis as a result of an 
 
        occupational exposure to chemicals.
 
        
 
        9. Claimant worked for defendant in another capacity from May 
 
        1983 until September 1, 1983.
 
        
 
        10. Claimant was last exposed to copper sulfate, F.O.A. 290 and 
 
        arsonilic acid on April 24, 1983.
 
        
 
        11. Claimant has experienced a loss of earnings as a result of 
 
        her chemical exposure.
 
        
 
        12. Claimant was given a rating of physical impairment of 28 - 30 
 
        percent of the body as a whole.
 
        
 
        13. Claimant continues to experience headaches, nausea,
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 13
 
        
 

 
        
 
 
 
 
 
        
 
        watery eyes, sinusitis, muscle cramps, and diarrhea.
 
        
 
        14. Claimant was 46 years old at the time of the hearing and did 
 
        not have a high school diploma.
 
        
 
        15. Claimant's chemical exposure while employed by defendant was 
 
        an occupational disease that arose out of and was in the course 
 
        of her employment with defendant.
 
        
 
        16. Claimant's perennial rhinitis and hypersensitivity is 
 
        causally related to her exposure to copper sulfate, F.O.A. 290 
 
        and arsonilic acid throughout her employment with defendant.
 
        
 
        17. Claimant's chemical exposure to copper sulfate, F.O.A. 290, 
 
        and arsonilic acid was incidental to the business of her employer 
 
        and was a hazard members of the general public would not be 
 
        exposed to.
 
        
 
        18. Claimant cannot return to her work for defendant.
 
        
 
        19. Claimant cannot obtain work paying wages similar to what she 
 
        earned at the time of her chemical exposure.
 
        
 
        20. Claimant has a loss of earning capacity of 30 percent.
 
        
 
        21. Claimant's date of disablement is September 1, 1983.
 
        
 
        22. Claimant's prior contact dermatitis, other allergies and 
 
        depression do not cause any portion of claimant's present 
 
        disability.
 
        
 
        23. Claimant's rate of compensation is $132.82 per week.
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
                                                
 
        Claimant's perennial rhinitis and hypersensitivity is an 
 
        occupational disease that arose out of and was in the course of 
 
        her employment with defendant.
 
        
 
        Claimant's perennial rhinitis and hypersensitivity are causally 
 
        connected to her exposure to copper sulfate, F. O. A. 290, and 
 
        arsonilic acid throughout her employment with defendant.
 
        
 
        Claimant has an industrial disability of 30 percent.
 
        
 
        Claimant's healing period is from April 24, 1983 until May 1983.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
        BURKHEAD v. DR. KEN HENRICHSEN d/b/a WINTERSET VETERINARY CLINIC 
 
        Page 14
 
        
 
        
 
                                      ORDER
 
        THEREFORE, it is ordered:
 
        
 
        That defendants shall pay to claimant one hundred fifty (150) 
 
        weeks of permanent partial disability benefits at a rate of one 
 
        hundred thirty-two and 82/100 dollars ($132.82) per week from 
 
        September 1, 1983.
 
        
 
        That defendants shall pay claimant healing period benefits from 
 
        April 24, 1983 to May 1983 at the rate of one hundred thirty-two 
 
        and 82/100 dollars ($132.82) per week.
 

 
        
 
 
 
 
 
        
 
        That defendants shall pay claimant the sum of nine thousand four 
 
        hundred and 33/100 dollars ($9,400.33) as reimbursement for 
 
        medical expenses listed in exhibit 5 found in the attachment to 
 
        the prehearing report filed in this matter.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum 
 
        and shall receive credit against this award for all weekly 
 
        benefits previously paid.
 
        
 
        That defendants shall receive credit for previous payments of 
 
        benefits of weekly and medical benefits under a nonoccupational 
 
        group insurance plan, if applicable and appropriate under Iowa 
 
        Code section 85.38(2).
 
        
 
        That defendants shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants shall pay the costs of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants shall file activity reports on the payment or 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 31th day of October, 1988.
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE BURKHEAD,
 
                                                   File No. 728496
 
              Claimant,
 
                                                A R B I T R A T I 0 N
 
         VS.
 
                                                   D E C I S I 0 N
 
         DR. KEN HENRICHSEN d/b/a
 
         WINTERSET VETERINARY CLINIC,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         UNITED FIRE & CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Joyce 
 
         Burkhead, claimant, against Dr. Ken Henrichsen d/b/a Winterset 
 
         Veterinary Clinic, employer, hereinafter referred to as the Vet 
 
         Clinic, and United Fire and Casualty Company, insurance carrier, 
 
         defendants, for benefits as the result of an alleged occupational 
 
         disease or injury on or about March 15, 1983.  On November 19, 
 
         1986 a hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              Claimant is alleging in this proceeding that she suffered a 
 
         toxic exposure to certain chemicals while working for the Vet 
 
         Clinic.  She is also claiming that as a result of an occupational 
 
         disease or, in the alternative, a work injury, she underwent 
 
         extensive medical treatment and is no longer able to return to 
 
         work for the Vet Clinic.  Claimant seeks healing period benefits 
 
         during her recovery from the chemical exposure and permanent 
 
         partial disability benefits for an alleged permanent physical 
 
         impairment caused by the occupational injury or disease.  In 
 
         addition, claimant is seeking reimbursement for medical 
 
         expenses.
 
         
 
              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.  Oral testimony was received during the hearing from 
 
         claimant and the following witnesses: Bill Burkhead and Penny 
 
         Chrysler.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  All of the 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   2
 
         
 
         
 
         evidence received at the hearing was considered in arriving at 
 
         this decision.
 
              
 
              The prehearing report contains the following 
 
         stipulations:
 
         
 
              1.  Claimant received an injury which arose out of and in 
 
         the course of employment with the Vet Clinic on March 15, 1983, 
 
         but whether there was a continuous or prolonged exposure over 
 
         the period of employment with the Vet Clinic was a matter in 
 
         dispute to be resolved by this decision;
 
         
 
              2.  The time off work for which claimant is now seeking 
 
         either temporary total disability or healing period benefits is 
 
         from September 1, 1983 to June 1, 1984;
 
         
 
              3.  The type of permanent disability if the injury or 
 
         occupational disease is found to be a cause of permanent 
 
         disability is an industrial disability to the body as a whole;
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $132.82 per week; and,
 
         
 
              5.  The fees charged for medical services for which 
 
         claimant seeks reimbursement in this proceeding are fair and 
 
         reasonable and causally connected to the treatment of the 
 
         condition upon which claimant is basing her claims in this 
 
         proceeding but that the reasonableness and necessity of the 
 
         treatments and their causal connection to any work injury was 
 
         an issue to be decided in this decision.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   3
 
         
 
         
 
         
 
              I.  Claimant received an injury or occupational disease 
 
         arising out of and in the course of her employment;
 
         
 
             II.  Whether there is a causal relationship between the 
 
         occupational disease or work injury and the claimed 
 
         disability;
 
         
 
            III.  The extent of claimant's entitlement to weekly 
 
         disability benefits; and,
 
         
 
             IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying in a candid and truthful manner.
 
         
 
              2.  Claimant was employed by the Vet Clinic from September 
 
         1981 to April 1983 as a receptionist/secretary and as mixer and 
 
         dispenser of feed additives.
 
         
 
              Claimant's testimony established that as a mixer and 
 
         dispenser of feed additives, she was was regularly required by 
 
         the Vet Clinic to mix both liquid and dry chemicals.   The liquid 
 
         chemicals were stored and mixed in a small supply room in the Vet 
 
         Clinic but the dry chemicals were stored and mixed in an attached 
 
         garage area.  The dry chemicals were contained in bags ranging 
 
         from ten to fifty pounds and were not covered.  The dry chemicals 
 
         at first were mixed together in a thirty gallon garbage can.  The 
 
         chemicals were removed from their storage bags using a coffee 
 
         can.  The chemicals were then poured into a paper bag for 
 
         weighing and subsequently dumped into the garbage can.  The 
 
         garbage can was then rolled around to mix the ingredients 
 
         together.  Claimant established that there was a considerable 
 
         amount of chemical dust in the air most of the time within the 
 
         garage area as a result of this process.  This chemical dust 
 
         collected on shelves and on all items stored in the area.  There 
 
         was no ventilation system within the garage area at the time 
 
         claimant worked there.  The clinic's feed additive business then 
 
         increased and the mixing had to be accomplished with an open 
 
         cement mixer.  This automated mixing process increased the amount 
 
         of chemical dust in the air of the garage.
 
         
 
              At first, claimant was not furnished protective equipment 
 
         but was later given gloves and masks.  This protection, however, 
 
         was ineffective according to the testimony of claimant and fellow 
 
         employee, Penny Chrysler.  Claimant and Chrysler established that 
 
         claimant was regularly exposed to chemical dust by physical 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   4
 
         
 
         
 
         contact with the dust on claimant's hands, face, eyes, nose, 
 
         mouth, hair, and by breathing the dust internally.  Claimant 
 
         testified and defendants admit that the chemical dust to which 
 
         claimant was regularly exposed contained the chemicals known as 
 
         copper sulfate, arsenilic acid, and F.O.A. 290.
 
         
 
              3.  On April 23, 1983 claimant suffered disablement as the 
 
         result of an occupational disease which arose out of and in the 
 
         course of her employment with the Vet Clinic.
 
         
 
              On April 24, 1983 claimant permanently discontinued working 
 
         at the Vet Clinic pursuant to instructions from her physicians as 
 
         the result of a severe allergy or hypersensitivity to the 
 
         chemicals of copper sulfate, arsenilic acid, and F.O.A. 290 which 
 
         was acquired as a result of her repeated exposures to those 
 
         chemicals while performing her job at the Vet Clinic over 
 
         approximately two years.  The level of exposure to copper 
 
         sulfate, arsenilic acid, and F.O.A. 290 at the Vet Clinic was far 
 
         greater than in everyday life or in other occupations.  These 
 
         findings are based upon the preponderance of the medical opinion 
 
         evidence presented in this case and the credible history of the 
 
         disease process described by claimant, her husband, and two 
 
         physicians involved in this case.
 
         
 
              Prior to 1980, claimant had allergies and frequent colds but 
 
         the symptoms were not serious and she never lost work as a result 
 
         of these symptoms.  In 1980 while working for another veterinary, 
 
         claimant had an allergic reaction to Glytassin and 
 
         Oxytetracycline powder (an antibiotic) consisting of a rash on 
 
         her face but no watering of the eyes.  Upon a diagnosis of 
 
         contact dermatitis by Robert T. Schulze, M.D., a dermatologist, 
 
         claimant symptoms cleared after treatment which included 
 
         injections of steroid medications.  Claimant was, however, told 
 
         to avoid these substances in the future which she did and she 
 
         experienced no future allergic reactions until her employment at 
 
         the Vet Clinic.
 
         
 
              Three or four months after beginning her employment with the 
 
         Vet Clinic in September 1981, claimant began to notice persistent 
 
         post nasal drainage and nasal congestion.  These symptoms along 
 
         with headache and watering eyes were worse during times of the 
 
         feed additive mixing.  In January 1983, claimant broke out with a 
 
         rash on her face with edema of the eyelids.  She was then seen by 
 
         a physician's assistant who treated her with a steroid injection. 
 
          The symptoms decreased for a few days but then reoccurred and 
 
         she returned to Dr. Schulze.  Upon another diagnosis of contact 
 
         dermatitis, Dr. Schulze gave claimant an injection of steroids 
 
         and prescribed eyedrops and skin ointments.  A week later 
 
         claimant was referred by the Vet Clinic to another dermatologist, 
 
         Roger I. Ceilley, M.D.  One month later, Dr. Ceilley performed 
 
         patch testing on claimant using some of the compounds she was 
 
         working with at the Vet Clinic.  From this testing, Dr. Ceilley 
 
         found that claimant was highly sensitive to four chemicals; 
 
         namely, copper sulfate, arsenilic acid, F.O.A. 290, and 
 
         quaternium-15.  The worse skin reaction was to copper sulfate.
 
         
 
              Between January and March 1983 claimant noticed that when 
 
         she started her job at the Vet Clinic in the morning her eyes 
 
         would begin to water and she would develop nasal congestion, post 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   5
 
         
 
         
 
         nasal drainage, and headaches.  These symptoms improved or 
 
         disappeared when she was at home.  By March 1983, claimant also 
 
         noticed an abnormal amount of fatigue.
 
         
 
              On March 15, 1983 claimant was attempting to avoid duties as 
 
         a feed additive mixer but at the insistence of a customer, she 
 
         mixed a bag of feed additive when other employees at the clinic 
 
         were not available.  She did not immediately experience a 
 
         reaction, but later that evening her eyes began to water and 
 
         swell.  By the next morning her eyes were almost swollen shut.  
 
         After returning to work, she was referred by the Vet Clinic back 
 
         to Dr. Ceilley.  Upon complaints of muscle aches, feeling tired 
 
         and nauseous, and a general feeling of ill health, Dr. Ceilley 
 
         believed that claimant was suffering from a reaction to the feed 
 
         additives which he termed as "serum sickness" and admitted 
 
         claimant to the hospital.  After steroid medication treatment and 
 
         other tests which excluded other causes of claimant's illness, 
 
         claimant was released after two days upon a final diagnosis that 
 
         all of the symptoms were attributable to a hypersensitive 
 
         reaction to the chemicals at the Vet Clinic.
 
         
 
              After her return to work a week later when the symptoms 
 
         subsided, claimant began to develop headaches, watering eyes, and 
 
         nasal congestion after only a few days.  She then was referred by 
 
         Dr. Ceilley to an allergist, John A. Caffrey, M.D., for 
 
         immunotherapy.  Dr. Caffrey instructed claimant to stay away from 
 
         the Vet Clinic and claimant left her employment at the clinic on 
 
         April 24, 1983.  In May 1983, claimant complained to Dr. Caffrey 
 
         of eye difficulties, severe diarrhea, head congestion, dizziness, 
 
         severe headaches, and muscle cramps.  After further patch testing 
 
         which revealed allergic reactions to many items including cats 
 
         and tobacco (claimant is a smoker), Dr. Caffrey diagnosed that 
 
         claimant was suffering from perennial allergic rhinitis and 
 
         conjunctivitis as a result of an occupational exposure to 
 
         chemicals at the veterinary clinic.  Dr. Caffrey attributes all 
 
         of claimant's symptoms including diarrhea to the copper sulfate 
 
         exposure.  This diagnosis was made inspite of the views of Thomas 
 
         B. Summers, M.D., a neurologist who stated to Dr. Caffrey that 
 
         claimant was experiencing a psychophysiologic reaction and 
 
         suspected claimant was suffering from depression.
 
         
 
              Dr. Caffrey's immunotherapy ended after a few months because 
 
         it appeared to the doctor that the treatment was not beneficial 
 
         to claimant's condition.  Claimant has not returned to the Vet 
 
         Clinic but continues to experience chronic nasal and sinus 
 
         infections causing continuous nasal congestion and nasal drainage 
 
         along with a general feeling of fatigue and ill health, 
 
         headaches, nausea, diarrhea, and muscle cramping.  Claimant's 
 
         condition is currently being monitored and occasionally treated 
 
         as needed by a clinical toxicologist, Mark T. Thoman, M.D.
 
         
 
              All of the treating physicians rendering opinions in this 
 
         case attribute claimant's chronic nasal congestion and drainage 
 
         problems, general fatigue, digestive tract problems, and muscle 
 
         cramping to claimant's hypersensitivity reaction to the chemicals 
 
         copper sulfate, arsenilic acid, and F.O.A. 290 following her 
 
         exposure to these chemicals at the Vet Clinic.  These causal 
 
         connection opinions are shared by the toxicologist, Dr. Thoman, 
 
         whose qualifications are impressive.  The causal connection of 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   6
 
         
 
         
 
         the chronic nasal infection and drainage problems to the chemical 
 
         exposure at the Vet Clinic was expressed by a specialist in 
 
         pulmonary medicine, Steven Zorn, M.D., after his examination of 
 
         claimant on June 1, 1984.  The opinions of Dr. Zorn are not 
 
         shared by an(audolaryngologist retained by defendants, Robert 
 
         Updegraff, M..D., who attributes much of claimant's problems to 
 
         general allergies from various substances such as tobacco and to 
 
         an abnormality called a nasal septum deflection.  This deflection 
 
         was never detected by any other physician in this  case despite 
 
         the frequent x-rays of claimant's nasal and sinus cavities over 
 
         the last five years.  Therefore, the preponderance of the medical 
 
         opinion evidence supports claimant's contention that her chronic 
 
         nasal infection problems and other chronic symptoms of ill health 
 
         are attributable to chemical poisoning at the Vet Clinic and to 
 
         her hypersensitivity reaction to those chemicals at work which 
 
         developed over a period of two years prior to March 1983.  As 
 
         explained by Dr. Thoman, the real culpert was the fact that 
 
         claimant was compelled to inhale the dust into her sinus passages 
 
         and lungs.  Had the exposure been limited to physical contact to 
 
         the exterior skin, claimant's reaction would not have been so 
 
         severe.
 
         
 
              4.  The occupational disease was a cause of a period of 
 
         total disability while claimant was recovering from symptoms of 
 
         the disease extending from March 16, 1983 until April 24, 1984, 
 
         except for a few days she worked immediately prior to her 
 
         permanently leaving the Vet Clinic in April 1983 and for the 
 
         period of time she worked, from May 1983 until September 1983, in 
 
         another job.
 
         
 
              The Vet Clinic owner provided claimant with another job in 
 
         one of his other business ventures, Tempe Manufacturing, after 
 
         she left the clinic.  The job lasted from May 1983 until 
 
         September 1983 at which time claimant was laid off because the 
 
         business venture was not financially successful.  On April 24, 
 
         1984 claimant reached maximum healing from her occupational 
 
         disease.  The maximum healing date was arrived at from the 
 
         deposition of the toxicologist, Dr. Thoman, who stated that 
 
         maximum healing in cases such as claimant's occurs after a year 
 
         following the last serious exposure.  Defendants point out that 
 
         in the deposition of Dr. Ceilley claimant's symptoms had cleared 
 
         when he referred claimant to Dr. Caffrey in April 1983.  However, 
 
         Dr. Caffrey explained that claimant was still under heavy doses 
 
         of steroid drugs at the time in order to control the allergic 
 
         reactions.  There being no other clear opinion as to the time of 
 
         maximum healing, the views of Dr. Thoman were accepted.  
 
         Claimant's testimony established that she did not work from the 
 
         time she was laid off from Tempe Manufacturing until the date of 
 
         her maximum healing.  Claimant did not begin her current job as a 
 
         waitress until June 1984.
 
         
 
              5.  The occupational disease which led to disablement on 
 
         April 24, 1983 is a cause of significant permanent partial 
 
         impairment to claimant's body as a whole.
 
         
 
              Claimant certainly had a medical history of allergic 
 
         reactions before she worked for the Vet Clinic, but she had 
 
         little or no permanent functional impairment as a result of these 
 
         problems before her exposure to the chemicals at the Vet Clinic.  
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   7
 
         
 
         
 
         All of the treating physicians rendering opinions as to the 
 
         causal connection of claimant's difficulties to the chemical 
 
         exposure at the Vet Clinic state that claimant suffers from some 
 
         degree of permanent impairment as a result of this exposure.  The 
 
         permanency opinions are based upon a continuation of claimant's 
 
         symptoms at the present time despite the lack of any current 
 
         exposure to the chemicals.  Dr. Zorn attributed much of her 
 
         problems to chronic sinus infection evidenced by yellowish nasal 
 
         drainage, headaches, and a cobblestone pattern of the posterior 
 
         pharynx.  This opinion is not shared by Dr. Updegraff, but Dr. 
 
         Zorn's opinions are given the greater weight.  Dr. Zorn's written 
 
         report is much more thorough as to claimant's history and some of 
 
         the x-ray and clinical findings of Dr. Updegraff are wholly 
 
         inconsistent with the findings of claimant's treating physician 
 
         since 1983.  All of claimant's treating physicians who believe 
 
         that claimant suffers permanent chronic infections from the 
 
         occupational disease defer to Dr. Thoman's expertise as to the 
 
         extent of claimant's physical impairment.
 
         
 
              Based upon his review of the history and his examination of 
 
         claimant, Dr. Thoman concluded in October 1986 that claimant 
 
         suffers from a twenty-five to thirty percent permanent partial 
 
         impairment to the body as a whole as a result of her chemical 
 
         exposure at the Vet Clinic.  This is much higher than an earlier 
 
         rating he made in 1985.  Dr. Thoman explained that claimant was 
 
         much worse after his second examination in 1986.  Generally, the 
 
         permanent impairment involves not only chronic infections but 
 
         general fatigue, digestive tract problems chronic eye problems, 
 
         and muscle cramps.  Dr. Thoman also explains that claimant now 
 
         has to be much more careful about exposure to all metals and to 
 
         other substances she had been allergic to in the past.  The 
 
         doctor states that claimant has become hypersensitive or much 
 
         more sensitive than before 1981 to those materials as a result of 
 
         her exposure at the Vet Clinic and she must, therefore, restrict 
 
         her everyday life activities and the type of physical work she 
 
         can perform accordingly.  Even in her current job as a waitress, 
 
         according to Dr. Thoman she will experience difficulty with 
 
         handling certain types of foods and chemicals present in a 
 
         restaurant setting.
 
         
 
              6.  The occupational disease of claimant caused by her work 
 
         at the Vet clinic is a cause of a forty-five percent permanent 
 
         loss of earning capacity or industrial disability.
 
         
 
              As a result of her functional impairment and physician 
 
         imposed physical restrictions, claimant is unable to return to 
 
         the work she was performing at the Vet Clinic.  Whether or not 
 
         claimant had some sort of functional impairment from her various 
 
         allergies before her employment at the Vet Clinic is not 
 
         important as there is no evidence of any loss of earning capacity 
 
         before 1983.
 
         
 
              Claimant's past employment primarily consists of work as a 
 
         waitress, secretary/receptionist, and as a veterinary clinic 
 
         worker.  Despite reasonable efforts to find suitable replacement 
 
         employment, claimant has not located such employment.  Although 
 
         she is working as a waitress, claimant was credible when she 
 
         explained that this job was obtained only because of her 
 
         friendship with the owners.  Dr. Thoman has demonstrated that 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   8
 
         
 
         
 
         claimant would have difficulty in working in manufacturing jobs 
 
         and other areas where exposure to metals and certain foods would 
 
         occur on a regular basis.  However, claimant has not 
 
         demonstrated, prima facie, that secretary/receptionist jobs 
 
         generally are not available to her because of her disability.
 
         
 
              Claimant has suffered a significant loss of actual earnings 
 
         from employment due to her occupational disease.  Claimant's 
 
         credible testimony establishes that she would be making at the 
 
         present time approximately $8.00 per hour if she were to have 
 
         continued at the Vet Clinic.  She currently earns only minimum 
 
         wage or $3.35 per hour as a waitress.
 
         
 
              Claimant is forty-six years of age and does not have a high 
 
         school education.  Claimant has shown low potential for 
 
         successful vocational rehabilitation.  However, claimant has not 
 
         shown that the services she can perform as a 
 
         secretary/receptionist in a relatively clean environment are so 
 
         limited in quality, quantity, and dependability that a reasonably 
 
         stable market for them does not exist within the geographical 
 
         area of her residence.
 
         
 
              7.  Claimant has incurred reasonable medical expenses for 
 
         treatment of her occupational disease in the amount of $9,400.33. 
 
         Exhibit 5, which is uncontroverted, establishes that claimant has 
 
         incurred a total of $7,920.49 in expenses for hospital and doctor 
 
         care since 1983.  In addition, claimant has submitted a listing 
 
         attached to the prehearing report demonstrating additional 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page   9
 
         
 
         
 
         expenses for medical mileage in the amount of $1,479.84.  
 
         Claimant has demonstrated from the medical evidence presented 
 
         that the treatment was reasonable for the occupational disease 
 
         and that all of the treatment was causally connected to this 
 
         occupational disease.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              In this case there was no controversy raised by the parties 
 
         concerning the applicable law to be followed in the determination 
 
         of the issues.  The foregoing findings of fact of fact were made 
 
         under the following principles of law:
 
         
 
              I. and II.  Claimant alleges to have an occupational disease 
 
         under chapter 85A of the Iowa Code and is claiming in the 
 
         alternative a work injury under chapter 85.  Claimant has the 
 
         burden of proving by a preponderance of the evidence that 
 
         claimant received an injury or occupational disease which arose 
 
         out of and 
 
         
 
         in the course of her employment.  The words "out of" refer to the 
 
         cause or source of the injury or disease.  The words "in the 
 
         course of" refer to the time and place and circumstances of the 
 
         injury or disease.  See generally Cedar Rapids Community School 
 
         District v. Cady, 278 W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
         Consolidated School District, 246 Iowa 402 68 N.W.2d 63 (1955).
 
         
 
              Iowa Workers' Compensation law distinguishes worker injuries 
 
         from occupational diseases.  Iowa Code section 85A.8 states as 
 
         follows:
 
         
 
              Occupational diseases shall be only those diseases which 
 
              arise out of and in the course of the employee's employment.  
 
              Such diseases shall have a direct causal connection with the 
 
              employment and must have followed as a natural incident 
 
              thereto from injurious exposure occasioned by the nature of 
 
              the employment.  Such disease must be incidental to the 
 
              character of the business, occupation or process in which 
 
              the employee was employed and not independent of the 
 
              employment.  Such disease need not have been foreseen or 
 
              expected but after its contraction it must appear to have 
 
              had its origin in a risk connected with the employment and 
 
              to have resulted from that source as an incident and 
 
              rational consequence.  A disease which follows from a hazard 
 
              to which an employee has or would have been equally exposed 
 
              outside of said occupation is not compensable as an 
 
              occupational disease.
 
         
 
              In further explanation in the distinction between the work 
 
         injuries and occupational diseases the Iowa Supreme Court in 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) at 
 
         page 190 states as follows:
 
         
 
              [T]o prove causation of an occupational disease, the 
 
              claimant need only meet the two basic requirements imposed 
 
              by the statutory definition of occupational disease, given 
 
              in section 85A.8.  First, the disease must be causally 
 
              related to the exposure to harmful conditions of the field 
 
              of employment .... Secondly, those harmful conditions must 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page  10
 
         
 
         
 
              be more prevalent in the employment concern than in everyday 
 
              life or in other occupations.
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion @f 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and,the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other,surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant,factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, although a finding was made causally 
 
         connecting an occupational disease to claimant's permanent 
 
         functional impairment to her body as a whole, such a finding does 
 
         not as a matter of law automatically entitle claimant to benefits 
 
         for permanent disability.  The extent to which this physical 
 
         impairment results in disability was examined under the law set 
 
         forth below.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page  11
 
         
 
         
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              No apportionment or loss of earning capacity between 
 
         claimant's preexisting allergy conditions and the occupational 
 
         disease was made in the finding of fact because such an 
 
         apportionment is proper only when there was some ascertainable 
 
         disability which existed independently before the occupational 
 
         disease occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 
 
         407 (Iowa 1984).  In this case, it was found that no such loss of 
 
         earning capacity existed before 1983.
 
         
 
              Based upon a finding of a forty-five percent loss of earning 
 
         capacity or industrial disability as a result of a disability to 
 
         the body as a whole, claimant is entitled as a matter of law to 
 
         ,225 weeks of permanent partial disability benefits under Iowa 
 
         Code section 85.34(2)(u) which is 45 percent of the 500 weeks 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant may be entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34(l) from the date of 
 
         disablement until claimant returns to work; until claimant is 
 
         medically capable of returning to substantially similar work to 
 
         the work she was performing at the time of the injury or disease; 
 
         or, until it is indicated that significant improvement for the 
 
         injury is not anticipated, whichever occurs first.  Given the 
 
         findings pertaining to times off work because of the work injury 
 
         and the time she reached maximum healing, claimant is entitled 
 
         under law to healing period benefits from September 1, 1983 
 
         through April 24, 1984 or a total of thirty-three and 
 
         six-sevenths weeks.  In the prehearing report claimant was not 
 
         seeking healing period benefits prior to September 1, 1983.
 
         
 
              IV.  Employers are obligated to furnish all reasonable 
 
         medical services for treatment of a work injury under Iowa Code 
 
         section 85.27.  As a result of the findings concerning medical 
 
         expenses, defendants are obligated to pay under the law the 
 
         amounts so found causally related to the occupational disease.  
 
         Also there is evidence that the defendants' group carrier has 
 
         paid most of these expenses.  However, a credit entitlement issue 
 
         under Iowa Code section 85.38(2) was not an issue identified as 
 
         contested at time of the prehearing conference in this case and 
 
         it was not identified as a hearing issue in the assignment order.  
 
         Therefore, such an issue cannot be dealt with in this decision 
 
         except for a general statement that credit should be given if 
 
         defendants are entitled to such a credit.
 
         
 
                                      ORDER
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page  12
 
         
 
         
 
         
 
              IT IS THEREFORE ORDERED as follows:
 
         
 
              1.  Defendants shall pay to claimant two hundred twenty-five 
 
         (225) weeks of permanent partial disability benefits at a rate of 
 
         one hundred thirty-two and 82/100 dollars ($132.82) per week from 
 
         April 25, 1984.
 
         
 
              2.  Defendants shall pay claimant healing period benefits 
 
         from September 1, 1983 through April 24, 1984 at the rate of one 
 
         hundred thirty-two and 82/100 dollars ($132.82) per week.
 
         
 
              3.  Defendants shall pay claimant the sum of nine thousand 
 
         four hundred and 33/100 dollars ($9,400.33) as reimbursement for 
 
         medical expenses listed in exhibit 5 found in the attachment to 
 
         the prehearing report filed in this matter.
 
         
 
              4.  Defendants shall pay accrued weekly benefits at a lump 
 
         sum and shall receive credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              5.  Defendants shall receive credit for previous payments of 
 
         benefits of weekly and medical benefits under a nonoccupational 
 
         group insurance plan, if applicable and appropriate under Iowa 
 
         Code section 85.38(2).
 
         
 
              6.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              7.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 (formerly 
 
         Industrial Commissioner Rule 500-4.33).
 
         
 
              8.  Defendants shall file activity reports on the payment of 
 
         his award as requested by this agency pursuant to Division of 
 
         Industrial Service Rule 343-3.1 (formerly Industrial Commissioner 
 
         Rule 500-3.1).
 
         
 
         
 
              Signed and filed this 26th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         1040 Fifth Avenue
 
         Des Moines, Iowa 50314
 
         
 
         Mr. Craig A. Hulse
 

 
         
 
         
 
         
 
         BURKHEAD V. WINTERSET VETERINARY CLINIC
 
         Page  13
 
         
 
         
 
         Attorney at Law
 
         1009 Main Street
 
         Adel, Iowa 50003
 
         
 
         Mr. Thomas E. Leahy
 
         Mr. Ross H. Sidney
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P. 0. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.30; 1108.40; 2203
 
                                                 FILED: February 26, 1987
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE BURKHEAD,
 
                                                     File No. 728496
 
              Claimant,
 
                                                 A R B I T R A T I 0 N
 
         VS.
 
         
 
         DR. KEN HENRICHSEN d/b/a                   D E C I S I 0 N
 
         WINTERSET VETERINARY CLINIC,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         UNITED FIRE & CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.30; 1108.40; 2203
 
         
 
              An occupational disease was found to have occurred from 
 
         exposure to chemicals while mixing feed additives at a veterinary 
 
         clinic.  The occupational disease which amounted to 
 
         hypersensitivity allergic reaction caused a permanent partial 
 
         impairment due to chronic infections and a general feeling of ill 
 
         health caused by the hypersensitivity.  The exposure to the 
 
         chemicals made claimant much more sensitive to substances which 
 
         she was only mildly allergic to before employment at the 
 
         veterinary clinic.  Claimant was found to have demonstrated an 
 
         industrial disability in the amount of forty-five percent.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRED CURRY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No. 728713
 
         IOWA ASBESTOS COMPANY,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I O N
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,               F I L E D
 
         AND IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,                      DEC 26 1989
 
         
 
              Insurance Carriers,         IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals and defendant Iowa Asbestos Co. and Iowa 
 
         Contractors Workers' Compensation Group cross-appeals from an 
 
         arbitration decision awarding medical benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 4; and 
 
         defendants' exhibits A through G.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the issues on appeal are:
 
         
 
              1.  Did the Deputy Commissioner err as a matter of law to 
 
              the prejudice of the Claimant in putting the burden of 
 
              affirmative defenses of changed environmental conditions and 
 
              the ability to work in those conditions on the Claimant?
 
              
 
              2.  Did the Deputy Commissioner err as a matter of law to 
 
              the prejudice of the Claimant in determining that the 
 
              Claimant failed to establish by competent evidence that he 
 
              has been disabled as a result of the occupational disease of 
 
              asbestosis under Chapter 85A of the Code of Iowa from 
 
              engaging in employment under the same conditions for which 
 
              he is suited?
 
              
 
              Defendants', Iowa Asbestos Company and Iowa Contractors 
 
         Workers' Compensation Group, state the issues on cross-appeal 
 
         are:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              I.  Whether the deputy industrial commissioner erred when 
 
              he ruled that the claimant was not disabled by his 
 
              occupational disease and was not entitled to weekly 
 
              benefits.
 
              
 
              II.  Whether the deputy industrial commissioner erred when 
 
              he ruled that claimant is entitled to medical benefits 
 
              pursuant to section 85A.5 when death or disablement has not 
 
              resulted within three years after the last injurious 
 
              exposure to the hazards of the disease.
 
              
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed June 17, 1988 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Between December 1952 and June 1982, claimant suffered 
 
         an occupational disease known as asbestosis from exposure to 
 
         asbestos dust for at least five out of the last ten years before 
 
         June 1982. Claimant's last 60 day exposure to asbestos dust 
 
         visible to the naked eye was while working for Iowa Asbestos.
 
         
 
              2.  It could not be found that claimant's ongoing asbestosis 
 
         condition is a cause of a permanent functional impairment or an 
 
         inability to receive equal wages in comparable insulation 
 
         construction work.
 
              
 
              3.  The condition of asbestosis may be progressive and 
 
         reasonable treatment of this condition requires periodic physical 
 
         examinations in the future to monitor the disease process.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the medical benefits awarded below.
 
         
 
                WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants shall provide, without cost to claimant, 
 
         medical evaluations annually or more or less frequently as may be 
 
         medically determined of his asbestosis condition at a major 
 
         medical center such as the University of Iowa Hospitals and 
 
         Clinics Pulmonary Care Department or comparable institution and 
 
         shall provide such care and treatment at defendants' expense as 
 
         recommended by the evaluating center.  The first examination 
 
         evaluation shall take place within ninety (90) days upon 
 
         claimant's request for such an evaluation subsequent to this 
 
         award.
 
         
 
              That the costs of this appeal are to be shared equally 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William W. Garretson
 
         Attorney at Law
 
         1200 35th St., Suite 206
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. I. John Rossi
 
         Mr. James C. Davis
 
         Attorneys at Law
 
         Skywalk Suite 203
 
         700 Walnut Street
 
         Des Moines, Iowa  50309
 
         
 
         Mr. John W. Wharton
 
         Attorney at Law
 
         218 Sixth Ave., Suite 300
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306
 
         
 
         Mr. Thomas J. Logan
 
         Mr. Marvin E. Duckworth
 
         Attorneys at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         Ms. Ann M. VerHeul
 
         Mr. John A. Templer, Jr.
 
         Mr. Dean C. Mohr
 
         Attorneys at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         3737 Woodland, Suite 437
 
         West Des Moines, Iowa  50265
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                                       2203
 
                                       Filed December 26, 1989
 
                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRED CURRY,
 
         
 
              Claimant,
 
              
 
         vs.
 
                                                   File No. 728713
 
         IOWA ASBESTOS COMPANY,
 
                                                     A P P E A L
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         AND IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
              
 
              
 
         2203
 
         
 
              Affirmed deputy's determination that claimant failed to 
 
         prove he had been disabled by asbestosis under Chapter 85A.  
 
         Defendants ordered to provide annual medical evaluations of 
 
         claimant's condition.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
              
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRED CURRY,
 
         
 
              Claimant,                                FILE NO. 728713
 
                                        
 
         vs.                                        A R B I T R A T I O N
 
         
 
         IOWA ASBESTOS COMPANY,                        D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JUN 17 1988
 
         EMPLOYERS MUTUAL COMPANIES,
 
         AND IOWA CONTRACTORS WORKERS'         IOWA INDUSTRIAL COMMISSIONER
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Fred Curry, 
 
         claimant, against Iowa Asbestos Company, employer (herein after 
 
         referred to as Iowa Asbestos), and Iowa Contractors Workers' 
 
         Compensation Group and Employers Mutual Companies, insurance 
 
         carriers, for workers' compensation benefits as a result of an 
 
         alleged occupational disease of asbestosis.  On March 28, 1988, a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a 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.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witness:  Dana Kever and Jack Copic.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report.
 
         
 
              Taken under advisement at hearing was a request by claimant 
 
         to take official notice of the Appendix I, parts II and III of the 
 
         Iowa Occupational Safety and Health Standards for the construction 
 
         industry (29CFR 1926 as adopted by Iowa Administrative Rule 530-10 
 
         (88) of the Iowa Administrative Code).  Defendants object on the 
 
         basis of the proposition that OSHA rules are not to affect 
 
         employer liabilities.  Iowa Code sections 88.20, Lunde v. 
 
         Winnebago Industries, Inc., 299 N.W.2d 473 (Iowa 1973).  
 
         Defendants cite OSHA rules that Appendix I is for informational 
 
         purposes only.  The claimant did not state the exact purpose for 
 
         offering this appendix into the evidence.  No expert issuing a 
 
         report in this case refers to such an appendix.  Official notice 
 
                                                
 
                                                         
 
         will not be taken of Appendix I.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant suffers an occupational disease as 
 
         defined in Chapter 85A.8 of the Iowa Code;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         disease and the claimed disablement;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         disability benefits for any alleged disablement; and,
 
         
 
               IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code sections 85A.5 and 85.27.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of 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, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              The claimant, Fred R. Curry, testified at the hearing that 
 
         he is a 58 year old man with an eighth grade education.  He has 
 
         been working in the insulation industry since approximately 1953 
 
         and began working with asbestos at that time.  The claimant 
 
         testified that beginning in the 1950's his main job was to block 
 
         boilers which involved taking large sheets of asbestos insulation 
 
         and molding them to fit the boiler.  This work was done by 
 
         pounding the asbestos sheets to conform them to the shape of the 
 
         boiler. Claimant also testified that he would grind asbestos with 
 
         a grinder to make a powder form of asbestos which was used in 
 
         asbestos mud or joint compound.  In these early years he was also 
 
         sometimes involved in removal of asbestos and in application of 
 
         asbestos insulation to pipes which involved cutting and molding 
 
         asbestos insulation to fit to the pipes and pounding wires into 
 
         the insulation to hold it onto the pipes.  At no time during his 
 
         work in the insulation industry, did he wear any form of 
 
         respiratory protective apparatus although after 1982, he 
 
         occasionally wore a paper face mask.  Testimony and exhibits 
 
         entered at the hearing indicated that the claimant was employed 
 
         at a number of different insulation companies, including some 
 
         out-of-town work in the early part of his career.  The claimant 
 
         was a member of Local 74, the insulation workers' union.  
 
         Although the claimant testified that Iowa Asbestos Company was 
 
         his major employer from 1972 through 1982, testimony and exhibits 
 
                                                
 
                                                         
 
         indicate that the claimant also worked intermittently during that 
 
         time for ICM Insulation Limited, and L & L Insulation.
 
         
 
              The claimant testified that the last job he worked on for 
 
         Iowa Asbestos Company was a remodel of the Bankers' Life building 
 
         in downtown Des Moines.  The claimant testified that the job 
 
         started in November or December of 1981, and he worked on it off 
 
         and on until June, 1982, when he was laid off by Iowa Asbestos 
 
         following completion of that job.  The claimant testified that 
 
         during this period of employment at Iowa Asbestos Company, he was 
 
         not involved in removal or encapsulation crews handling asbestos 
 
         insulation.  He said that he reinsulated existing pipes and duct 
 
         work by tying in new fiberglass insulation to existing asbestos 
 
         insulation.  The claimant testified that in tie-ins on old 
 
         asbestos he would bring new fiberglass insulation on new pipes up 
 
         to points in old pipes which were covered by asbestos insulation 
 
         and tie-in and wrap the fiberglass insulation so that it met and 
 
         was sealed onto existing asbestos insulation.  The claimant 
 
         testified that this tie-in work did not involve cutting, 
 
         pounding, grinding, or otherwise disturbing the existing asbestos 
 
         insulation.
 
         
 
              Claimant further testified that he also performed patching 
 
         work on the Banker's Life job which involved patching the holes, 
 
         cut into air ducts and vacuuming out the ducts.  These ducts were 
 
         insulated with asbestos.  Finally, claimant stated that all of 
 
         his work was performed in areas where asbestos existed and that 
 
         asbestos was airborn in these areas.  Claimant said that a 
 
         fibrous white dust was visible in these areas and from his years 
 
         of experience, he identified the dust as asbestos.  Claimant said 
 
         that although he has temporarily assigned to other projects, he 
 
         worked at least 60 days on the Bankers Life Project during his 
 
         last period of employment with Iowa Asbestos.
 
         
 
              The claimant also testified that prior to the Banker's Life 
 
         job, he worked on the Meredith remodeling job for Iowa Asbestos 
 
         on and off over one and a half years, but such work totalled at 
 
         least 60 days.  Claimant stated that he was similarly exposed to 
 
         asbestos in the Meredith job from his reinsulation work and the 
 
         breathing of asbestos dust in the air at the job site.
 
         
 
              The claimant testified that on December 5, 1982, he traveled 
 
         to Omaha with a group of other union Local 74 members for a 
 
         medical examination arranged by the union.  This examination was 
 
         apparently done under the direction of Dr. Irving J. Selikoff, 
 
         M.D., of the Environmental Sciences Laboratory, The Mount Sinai 
 
         Medical Center, and included chest x-rays and pulmonary function 
 
         tests.  In a letter report dated July 29, 1983, Dr. Selikoff 
 
         reviewed the results of Mr. Curry's December 5, 1982 exam in Omaha 
 
         and noted that "...[W]hile your chest x-ray did show scarring of 
 
         the sort we commonly find following asbestos insulation, 
 
         consistent with the diagnosis of asbestosis....[T]his was not 
 
         accompanied by any of the very serious problems that we 
 
         occasionally encounter, that would give us immediate concern."  
 
         Dr. Selikoff also noted that the results of Mr. Curry's pulmonary 
 
                                                
 
                                                         
 
         function tests were all well within normal limits and that all 
 
         other tests performed were normal.
 
         
 
              Claimant's personal physician, Dr. Walter B. Eidbo, M.D., a 
 
         general practitioner, in a letter report dated January 15, 1985, 
 
         stated that based on chest x-ray findings he diagnosed asbestosis 
 
         with associated emphysema.  Dr. Eidbo opined that the claimant is 
 
         functionally impaired in that he has weakness and shortness of 
 
         breath.  Dr. Eidbo also indicated that the claimant has a 10 
 
         percent to 20 percent disability associated with his asbestos and 
 
         associated emphysema.  The doctor's notes also indicate that the 
 
         claimant has generalized arthritis and pain and discomfort in his 
 
         joints associated with arthritis and a history of insomnia dating 
 
         back to the 1970's.
 
         
 
              The claimant was also seen by Dr. Greg Hicklin, a pulmonary 
 
         specialist on March 11, 1986, who confirmed a diagnosis of 
 
         asbestos.  In a letter report on that date, Dr. Hicklin noted 
 
         that pulmonary function tests performed on the claimant were 
 
         normal and that chest changes seen on x-rays were physiologically 
 
         insignificant at the current time.  Dr. Hicklin stated that based 
 
         on the claimant's current pulmonary function tests, he would 
 
         expect the claimant to be able to pursue any occupation or 
 
         activity although Dr. Hicklin would recommend that the claimant 
 
         avoid further exposure to asbestos by wearing protective 
 
 
 
                            
 
                                                         
 
         equipment and clothing should he be further exposed to asbestos.
 
         
 
              Claimant testified that since June, 1982, he has not 
 
         returned to work in asbestos areas upon the advice of his family 
 
         physician, Dr. Eidbo.  He has only worked on new construction, 
 
         not involving asbestos since June, 1982.  Claimant has been laid 
 
         off for a number of years from his insulation work.  Claimant 
 
         admitted that the insulation business is in an economic slump.
 
         
 
              Defense witnesses, Dana Kever and Jack Copic, testified that 
 
         the number of full time employees at Iowa Asbestos has declined 
 
         since claimant's lay off.  However, as demonstrated by claimant 
 
         in cross-examination, much of the business is now performed by 
 
         non-union insulating companies, one of which is a subsidiary of 
 
         the parent corporation which also owns Iowa Asbestos.
 
         
 
              Claimant testified that he cannot return to any insulating 
 
         work due to fatigue, a feeling of weakness and shortness of 
 
         breath due to his asbestosis.  He stated that he "supposed" the 
 
         reasons for his not being called back to Iowa Asbestos is his 
 
         physical limitations.  In either 1984 or 1985, claimant began 
 
         working for a greenhouse performing work such as picking up 
 
         supplies, making deliveries and moving flowers and pots around at 
 
         the rate of $5.50 to $6.00 per hour as opposed to his $16.00 to 
 
         $17.00 per hour wages as an asbestos worker.  Claimant is 
 
         currently laid off from his greenhouse work and that "he heard" 
 
         that he was replaced by two minimum wage workers.  Claimant is 
 
         unemployed at present. Claimant said that he desires treatment 
 
         for his asbestosis.
 
         
 
              Medical records indicate that claimant has a history of 
 
         arthritis, insomnia, and nervousness or anxiety.  Claimant takes 
 
         medication for his insomnia and nerves.  Claimant said that he 
 
         feels his arthritis is due to the asbestos exposure.
 
         
 
              Kever, the controller of Iowa Asbestos testified that Iowa 
 
         Contractors Workers' Compensation Group was the insurer for Iowa 
 
         Asbestos from January 1, 1980 through December 31, 1984 and 
 
         Liberty Mutual Insurance Company has been the insurer since 
 
         January 1, 1985.  Kever also testified that claimant last worked 
 
         for Iowa Asbestos on August 24, 1982.
 
         
 
              From his demeanor, claimant appeared to be testifying 
 
         truthfully.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa workers' compensation law distinguishes workers' 
 
         injuries from occupational diseases.  Iowa Code section 85A.8 
 
         states as follows:
 
         
 
              Occupational diseases shall be only those diseases which 
 
              arise out of and in the course of the employee's employment. 
 
              Such diseases shall have a direct causal connection with the 
 
              employment and must have followed as a natural incident 
 
                                                
 
                                                         
 
                   thereto from injurious exposure occasioned by the nature of 
 
              the employment.  Such disease must be incidental to the 
 
              character of the business, occupation or process in which 
 
              the employee was employed and not independent of the 
 
              employment. Such disease need not have been foreseen or 
 
              expected but after its contraction it must appear to have 
 
              had its origin in a risk connected with the employment and 
 
              to have resulted from that source as an incident and 
 
              rational consequence.  A disease which follows from a hazard 
 
              to which an employee has or would have been equally exposed 
 
              outside of said occupation is not compensable as an 
 
              occupational disease.
 
         
 
              In further explanation of the distinction between work 
 
         injuries and occupational diseases, the Iowa Supreme Court in 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980 at page 
 
         190) states as follows:
 
         
 
              ...[To] prove causation of an occupational disease, the 
 
              claimant need only meet the two basic requirements imposed 
 
              by the statutory definition of occupational disease, given 
 
              in section 85A.8.  First, the disease must be causally 
 
              related to the exposure to harmful conditions of the field 
 
              of employment... Secondly, those harmful conditions must be 
 
              more prevalent in the employment concerned than in everyday 
 
              life or in other occupations....
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
                                                
 
                                                         
 
              In the case sub judice, claimant has clearly shown that his 
 
         employment as an asbestos worker since December, 1953, subjected 
 
         him to exposure to asbestos dust which is more prevalent in his 
 
         job than elsewhere.  All of the physicians in this case have 
 
         diagnosed that claimant has a condition of asbestos from such 
 
         exposure.  The evidence is clear that he worked with asbestos, 
 
         five out of the last ten years of his employment as an asbestos 
 
         worker.  Therefore, the negative presumption of 85A.13 is not 
 
         applicable.
 
         
 
              Also, the limited presumption that his exposure at Iowa 
 
         Asbestos was a cause of this condition contained in Iowa Code 
 
         section 85A.10 can be invoked in this case.  The Iowa Supreme 
 
         Court states as follows in applying this code section:
 
         
 
              To overcome this problem of proving causation in the 
 
              occupational disease context, chapter 85A identifies the 
 
              employer who shall be held accountable.  Section 85A.10 
 
              imposes liability upon the last employer in whose employment 
 
              the claimant was injuriously exposed to the hazardous 
 
              condition of employment.  It does not require that the 
 
              claimant prove that his disease was actually caused by that 
 
              exposure.  Rather, we believe it is sufficient that he show 
 
              that the hazardous employment condition which at some time 
 
              caused his disease existed to the extent necessary to 
 
              possibly cause the disease at his last employer's place of 
 
              employment.  McSpadden at 188.
 
         
 
              The McSpadden court, however, noted an additional burden to 
 
         invoke this presumption of causal connection upon the last 
 
         specific employer.  Claimant must show that he was exposed to 
 
         asbestos for at least 60 days during his employment with the last 
 
         employer he wishes to excess with liability for his occupational 
 
         disease.  Claimant argues for application of the amended version 
 
         of Iowa Code section 85A.10 which removes the 60 day requirement. 
 
         However, defendants are correct in their brief argument that the 
 
         amendment is not applicable to this case as claimant filed his 
 
         petition prior to July 1, 1986, the effective date of the 
 
         amendment.  However, in this case, the preponderance of the 
 
         evidence consisting primarily of claimant's uncontroverted and 
 
         credible testimony established that he was last exposed to 
 
         visible asbestos dust for a period of at least 60 days at Iowa 
 
         Asbestos. After 30 years of experience in working with asbestos, 
 
         claimant should be in a position to distinguish asbestos from 
 
         other substances that might appear at a construction site.  
 
         Defendants do not contend that asbestos was not present in the 
 
         areas in which claimant worked.  Claimant's physicians do not 
 
         limit their causation views to any particular period of exposure 
 
         and certainly, visible dust is sufficient exposure in any event.
 
         
 
              Defendants contend that claimant must show exposure for a 
 
         period of 60 consecutive days.  Such a rule would be too onerous 
 
         of a burden to place upon an injured worker especially in the 
 
         construction field.  Given the nature of claimant's insulation 
 
         jobs, moving from one project to another is routine.  Applying a 
 
                                                
 
                                                         
 
         60 consecutive day rule would be difficult and could result in 
 
         absurd results.  This question is a matter of first impression 
 
         with this agency.  The Supreme Court has repeatedly held that the 
 
         workers' compensation statute is to be liberally construed in 
 
         favor of the worker due to its humanitarian purposes.  Beier 
 
         Glass Co. v. Brundige, 329 N.W.2d 280, 283 (Iowa 1983).
 
         
 
              Claimant, on the other hand, has not shown that his 
 
         occupational disease has resulted in disablement.  Disablement is 
 
         defined under Iowa Code section 85A.4 as follows:
 
         
 
              Disablement as that term is used in this chapter is the 
 
              event or condition where an employee becomes actually 
 
              incapacitated from performing the employee's work or from 
 
              earning equal wages in other suitable employment because of 
 
              an occupational disease as defined in this chapter in the 
 
              last occupation in which such employee is injuriously 
 
              exposed to the hazards of such disease.
 
         
 
              The medical evidence is conflicting as to whether claimant 
 
         has functional impairment as a result of his asbestos condition. 
 
         Pulmonary specialists, Dr. Selikoff in 1982 and Dr. Hicklin in 
 
         1986, found normal pulmonary function and no significant physical 
 
         or mental impairment.  Only Dr. Eidbo, claimant's family 
 
         physician, whose past experience and training in the area of 
 
         pulmonary medicine is unknown, opines that claimant has a loss of 
 
         physical impairment and shortness of breath from his asbestosis. 
 
         Claimant simply has failed to show by a preponderance of the 
 
         evidence a permanent physical or mental impairment.  Although 
 
         claimant's testimony appeared credible, claimant's personal 
 
         opinions as to what he may think are the cause of his problems 
 
         and the single report from Dr. Eidbo does not outweigh the clear 
 
         opinions of the pulmonary specialists.
 
 
 
                          
 
                                                         
 
         
 
              According to the McSpadden court, a failure to show 
 
         functional impairment does not prohibit a finding of loss of 
 
         earning capacity.  Claimant has shown that he cannot return to 
 
         work where asbestos dust is present upon the orders of Dr. Eidbo. 
 
         A similar recommendation against exposure to asbestos was given 
 
         by Dr. Hicklin.  However, the use of asbestos for new 
 
         construction has been prohibited according to the evidence in 
 
         this case. Claimant admits to working as an insulator on new 
 
         construction projects after June, 1982, but was laid off for 
 
         economic reasons, not due to his asbestos condition.  According 
 
         to defendants' evidence the amount of allowable asbestos dust in 
 
         a work environment without use of protective equipment has been 
 
         severely lowered under current OSHA standards.  Claimant has 
 
         failed to demonstrate whether Dr. Eidbo or Dr. Hicklin would 
 
         allow asbestos work under these lowered standards or with use of 
 
         protective equipment.  Therefore, claimant has failed to show any 
 
         economic loss or loss of any employment opportunity as a result 
 
         of his occupational disease.
 
         
 
              Despite a failure of claimant to show entitlement to weekly 
 
         benefits for disablement caused by his occupational disease, 
 
         claimant is entitled to life time medical benefits for this 
 
         condition under Iowa Code section 85A.5.  This section states, in 
 
         part, as follows:
 
         
 
              If, however, an employee incurs an occupational disease for 
 
              which the employee would be entitled to receive compensation 
 
              if the employee were disabled as provided herein, but is 
 
              able to continue in employment and requires medical 
 
              treatment for said disease, then the employee shall receive 
 
              reasonable medical services therefor.
 
         
 
              There may be some question as to what, if any, treatment is 
 
         needed.  Certainly Dr. Eidbo and claimant feel that there is some 
 
         need.  It is the specialized experience of this agency that 
 
         asbestosis may be a progressive disease.  Therefore, claimant 
 
         will be directed to provide at claimant's request yearly 
 
         evaluations beginning this year by a pulmonary care department of 
 
         a major medical center such as the University of Iowa Hospitals 
 
         and Clinics.  Defendants shall provide such care as deemed 
 
         necessary from such evaluations.
 
         
 
              The claim for penalty benefits is denied as claimant has 
 
         failed to show entitlement to any weekly disability benefits. 
 
         Penalty benefits are not applicable to a failure to pay medical 
 
         benefits.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 
 
         1986).
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Between December, 1952 and June 1982, claimant suffered 
 
         an occupational disease known as asbestosis from exposure to 
 
                                                
 
                                                         
 
         asbestos dust for at least five out of the last ten years before 
 
         June, 1982.  Claimant's last 60 day exposure to asbestos dust 
 
         visible to the naked eye was while working for Iowa Asbestos.
 
         
 
              3.  It could not be found that claimant's ongoing asbestosis 
 
         condition is a cause of a permanent functional impairment or an 
 
         inability to receive equal wages in comparable insulation 
 
         construction work.
 
         
 
              4.  The condition of asbestosis may be progressive and 
 
         reasonable treatment of this condition requires periodic physical 
 
         examinations in the future to monitor the disease process.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the medical benefits awarded below.
 
         
 
                                  ORDER
 
         
 
         
 
              1.  Defendants shall provide, without cost to claimant, 
 
         medical evaluations annually or more or less frequently as may be 
 
         medically determined of his asbestosis condition at a major 
 
         medical center such as the University of Iowa Hospitals and 
 
         Clinics Pulmonary Care Department or comparable institution and 
 
         shall provide such care and treatment at defendants' expense as 
 
         recommended by the evaluating center.  The first examination 
 
         evaluation shall take place within ninety (90) days upon 
 
         claimant's request for such an evaluation subsequent to this 
 
         award.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 17th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William W. Garretson
 
         Attorney at Law
 
         1200 35th St., Suite 206
 
         West Des Moines, Iowa  50265
 
         
 
                                                
 
                                                         
 
         Mr. I. John Rossi
 
         Mr. James C. Davis
 
         Attorneys at Law
 
         Skywalk Suite 203
 
         700 Walnut Street
 
         Des Moines, Iowa  50309
 
         
 
         Mr. John W. Wharton
 
         Attorney at Law
 
         218 Sixth Ave., STE 300
 
         P. 0. Box 9130
 
         Des Moines, Iowa  50306
 
         
 
         Mr. Thomas J. Logan
 
         Mr. Marvin Duckworth
 
         Attorneys at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave.
 
         Des Moines, Iowa  50312
 
         
 
         Ms. Ann M. Ver Heul
 
         Mr. John A. Templer, Jr.
 
         Mr. Dean C. Mohr
 
         Attorneys at Law
 
         3737 Woodland, Suite 437
 
         West Des Moines, Iowa  50265
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2203; 1803
 
                                                 Filed June 17, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRED CURRY,
 
         
 
              Claimant,
 
                                                      FILE NO. 728713
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         IOWA ASBESTOS COMPANY,
 
                                                      D E C I S I 0 N 
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         AND IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         2203; 1803
 
         
 
              Claimant was found to have shown that he suffers from 
 
         asbestosis as a result of his occupational exposure to asbestos 
 
         over the last 30 years.  However, claimant failed to demonstrate 
 
         that the asbestosis condition has progressed to the point of 
 
         disablement.  However, claimant was awarded annual physical 
 
         examinations at a major medical center to monitor the disease 
 
         process.  It was noted as a matter of specialization agency 
 
         expertise that asbestosis can be a progressive disease.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRED CURRY,                                FILE NO. 728713
 
         
 
              Claimant,                            R U L I N G   O N
 
         
 
         vs.                                       R E H E A R I N G
 
         
 
         IOWA ASBESTOS COMPANY,                          A N D
 
         
 
              Employer,                          M O D I F I C A T I O N
 
         
 
         and                                     T O   D E C I S I O N
 
         
 
         EMPLOYERS MUTUAL COMPANIES,              O F   JUNE 17, 1988
 
         AND I0WA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,                           F I L E D
 
         
 
              Insurance Carriers,                     JUN 29 1988
 
              Defendants.
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
              Upon application for rehearing, it was pointed out that the 
 
         undersigned inadvertently failed to identify which insurance 
 
         carrier is liable for the occupational disease found in the 
 
         decision.  Rehearing is granted and the decision shall be 
 
         modified accordingly.
 
         
 
             The following new paragraph is added to the Analysis section 
 
         of the decision:
 
         
 
              The parties stipulated at hearing that coverage of Iowa 
 
         Asbestos by Employers Mutual ended on December 31, 1979 and that 
 
         the Iowa Contractors Workers' Compensation Group (ICWCG) had 
 
         coverage from January 1, 1980 through December 31, 1984. 
 
         Claimant's last 60 day exposure occurred on the Banker's Life 
 
         project in 1981 and 1982, during the coverage by ICWCG.  Under 
 
         the "last injurious exposure" rule adopted by the Court in 
 
         Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984) for 
 
         occupational disease cases, ICWCG assumes all liability for the 
 
         disease.
 
         
 
              The following new finding is added to the Findings of Fact 
 
         section:
 
         
 
              5.  The Iowa Contractors Workers' Compensation Group was the 
 
              workers' compensation insurer of Iowa Asbestos at the time 
 
              of claimant's last injurious 60 day exposure to asbestos 
 
              dust in 1981 and 1982 on the Banker's Life remodeling 
 
                                                
 
                                                         
 
                   project.
 
         
 
              The order section is amended by striking the first word in 
 
         paragraphs one and two and inserting in lieu thereof the 
 
         following:
 
         
 
              Defendants, Iowa Asbestos and Iowa Contractors Workers' 
 
         Compensation Group.
 
         
 
              The Order section is also amended by adding the following 
 
         new paragraph:
 
         
 
              3.  The claim against Iowa Asbestos and Liberty Mutual 
 
              Insurance Company is dismissed.
 
         
 
              The remaining portions of the decision remain intact.
 
         
 
         
 
             Signed and filed this 29th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William W. Garretson
 
         Attorney at Law
 
         1200 35th St., Suite 206
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. I. John Rossi
 
         Mr. James C. Davis
 
         Attorneys at Law
 
         Skywalk Suite 203
 
         700 Walnut Street
 
         Des Moines, Iowa  50309
 
         
 
         Mr. John W. Wharton
 
         Attorney at Law
 
         218 Sixth Ave., STE 300
 
         P. 0. Box 9130
 
         Des Moines, Iowa  50306
 
         
 
         Mr. Thomas J. Logan
 
         Mr. Marvin Duckworth
 
         Attorneys at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave.
 
         Des Moines, Iowa  50312
 
         
 
                                                
 
                                                         
 
         Ms. Ann M. Ver Heul
 
         Mr. John A. Templer, Jr.
 
         Mr. Dean C. Mohr
 
         Attorneys at Law
 
         3737 Woodland, Suite 437
 
         West Des Moines, Iowa  50265
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANET I. FERREE,
 
         
 
              Claimant,                        File No. 728731
 
         
 
         vs.                                    R E V I E W -
 
         
 
         K-MART CORPORATION,                  R E 0 P E N I N G
 
         
 
              Employer,                        D E C I S I O N
 
              Self-Insured,
 
              Defendant.                          F I L E D
 
         
 
                                        IOWA INDUSTRIAL COMMISSIONER
 
                                  
 
                                  
 
                                  STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Janet I. 
 
         Ferree, claimant, against K-Mart Corporation, employer 
 
         (hereinafter referred to as K-Mart), self-insured defendant, for 
 
         recovery of further workers' compensation benefits as a result of 
 
         an injury on March 2, 1983.  A prior agreement for settlement 
 
         under Iowa Code section 86.13 for this injury was approved on May 
 
         29, 1985. on October 11, 1988, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a 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.  Oral 
 
         testimony was received during the hearing from claimant.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  Claimant is seeking additional healing period benefits 
 
         from March 15, 1986 through May 20, 1988, and defendant agrees 
 
         that she was not working during this period of time.
 
         
 
              2.  Claimant's rate of weekly compensation is $114.09 per 
 
         week.
 
         
 
              3.  Medical providers would testify that the medical bills 
 
         submitted by claimant at the hearing represent fair charges for 
 
         the services rendered, but whether or not they constitute 
 
         reasonable treatment for the work injury and their causal 
 
         connection to the work injury remain at issue.
 
         
 
                                      ISSUES
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The parties submitted only the following issues for 
 
         determination in this proceeding:
 
         
 
               I.  The extent of claimant's entitlement to additional 
 
         healing period benefits.
 
         
 
              II.  Claimant's entitlement to medical benefits in 
 
         attendance at a pain center at Iowa Methodist Medical Center.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that on March 2, 1983, she injured her 
 
         low back at K-Mart in a fall from a broken ladder.  Claimant 
 
         underwent extensive medical treatment following this injury 
 
         including two surgical procedures both by injection and later 
 
         open surgery to fuse two vertebras in the lower back.  Claimant 
 
         returned to work at K-Mart on May 15, 1984, with restrictions 
 
         against lifting over 15 pounds, no climbing of ladders and no 
 
         extreme bending or stooping.  On January 23, 1985, approximately 
 
         five months before a compromise settlement of her prior workers' 
 
         compensation claim, claimant testified by deposition that despite 
 
         her return to work, she was still experiencing considerable back 
 
         pain and felt that she was getting worse.  However, she also 
 
         testified that she felt that she could continue to work at K-Mart 
 
         if her condition did not worsen.  Claimant testified that she had 
 
         missed almost eight days at work at the time of the deposition.  
 
         On May 29, 1985, this agency approved a settlement agreement in 
 
         which it was agreed that claimant was entitled to 63 weeks of 
 
         healing period benefits and permanent partial disability benefits 
 
         for a 17 1/2 percent industrial disability to the body as a 
 
         whole.  The settlement was subject however to review-reopening 
 
         proceedings.
 
         
 
              Claimant testified that after the settlement she continued 
 
         to work for K-Mart without loss of pay and she was subsequently 
 
         promoted to the job of merchandiser in the auto department.  
 
         Claimant had been a merchandiser at the time of the work injury. 
 
         Claimant, however, stated that her back pain began to worsen and 
 
         she missed additional work.. Finally, on March 15, 1986, the pain 
 
         became severe and she left work.  She said that she was almost 
 
         paralyzed for two days. on March 18, 1986, her family doctor, 
 
         Larry Goetz, M.D., placed her into the hospital for a few days of 
 
         traction and physical therapy.  Claimant said that K-Mart was 
 
         aware of this treatment and actually paid for some of the 
 
         expenses.
 
         
 
              Claimant has not returned to work in any capacity since 
 
         leaving K-Mart she continued to receive therapy and medication 
 
         prescribed by Dr. Goetz during the weeks following her discharge 
 
         from the hospital.  In April 1986, claimant was referred by Dr. 
 
         Goetz to Randy Winston, M.D., a neurosurgeon, for evaluation.  
 
         Dr. Winston suspected a complication from use of the chymopapain 
 
         injection surgery and suggested additional tests.  However, Dr. 
 
         Winston did not wish to proceed without full authority from 
 
         K-Mart as to payment for his services.  Dr. Winston stated at the 
 
         time that he did not think claimant would be a good candidate for 
 
         a pain center because she was in litigation on her workers' 
 
         compensation case.  Apparently, K-Mart did not authorize such 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         treatment and claimant continued with the treatment modalities 
 
         prescribed by Dr. Goetz.  In May 1986, Dr. Goetz stated that at 
 
         that time he did not know when claimant would be able to return 
 
         to work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In July 1986, claimant was informed by K-Mart management 
 
         that none of her medical expenses in the future would be paid by 
 
         K-Mart.  Claimant testified that she then had to cease her 
 
         physical therapy sessions because she could not afford to pay for 
 
         them. Claimant was not paid healing period benefits for this 
 
         period of time.
 
         
 
              Claimant testified that her pain worsened after ending the 
 
         physical therapy and she began to rely heavily upon the pain 
 
         medication.  She admitted to use as well of alcohol on weekends. 
 
         In January 1987, claimant was admitted to Powell II, a drug 
 
         treatment center for chemical dependency.  The center stated that 
 
         claimant was dependent upon the pain medication she was using for 
 
         the low back pain and not for alcohol abuse.  The chemical abuse 
 
         center suggested that claimant be evaluated for suitability for 
 
         treatment at a pain center.  In March 1987, claimant was 
 
         evaluated by the Iowa Methodist Medical Pain Center director, 
 
         Louis Schneider, D.O.  Dr. Schneider stated that claimant was a 
 
         good candidate for his pain center.  Claimant testified that she 
 
         wanted to attend this center in order to obtain an alternative to 
 
         use of drugs to control her pain.  However, K-Mart refused to pay 
 
         for treatment at the pain center.  In June 1987, claimant said 
 
         that as a part of Dr. Schneider's evaluation, she was also 
 
         evaluated by an orthopedic surgeon, Charles Denhart, M.D.  Dr. 
 
         Denhart reports that claimant has a 20 percent permanent partial 
 
         disability taking into account some evidence of fibrosis and 
 
         pain.  However, the objective findings are only a decreased range 
 
         of motion in her back.
 
         
 
              Since 1987, claimant has remained off work and has not 
 
         received medical treatment for her back condition or her drug 
 
         dependency other than counseling.  She has received vocational 
 
         counseling from the state rehabilitation agency and is now 
 
         attending Southwest Community College to retrain herself.  She is 
 
         not receiving any assistance in this retraining effort from 
 
         K-Mart.
 
         
 
              Claimant stated that she presently still has severe pain 
 
         with activity and while sitting.  She attends school daily but 
 
         only for a few hours each day.  She stated that she still wishes 
 
         to attend the pain center to learn alternatives to medication.
 
         
 
              In February 1988, claimant was examined by a neurologist, 
 
         Alfredo Socarras, M.D.  Dr. Socarras stated in a written report 
 
         that there is a great disproportion between claimant's symptoms 
 
         and the lack of objective findings.  Dr. Socarras felt that there 
 
         was a large functional element in this case.  The doctor also 
 
         felt that claimant had reached maximum medical improvement and 
 
         has a ten percent permanent partial impairment to the body as a 
 
         whole. He encouraged claimant to return to gainful employment.  
 
         Dr. Socarras believes that claimant would not benefit from pain 
 
         center treatment due to pending litigation.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         she was testifying truthfully.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  Iowa Code section 86.14(2) states as follows:
 
         
 
              In a proceeding to reopen an award for payments or agreement 
 
              for settlement as provided by section 86.13, inquiry shall 
 
              be into whether or not the condition of the employee 
 
              warrants an end to, diminishment of, or increase of 
 
              compensation so awarded or agreed upon.
 
         
 
              In such review-reopening proceedings, claimant has the 
 
         burden of establishing by a preponderance of the evidence that 
 
         she suffered a change of condition or a failure to improve as 
 
         medically anticipated as a proximate result of the original work 
 
         injury, subsequent to the date of the agreement for compensation 
 
         under review, which entitles the claimant to additional 
 
         compensation.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 
 
         (Iowa 1969).
 
         
 
              Such a change of condition is not limited to a 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 of 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).
 
         
 
              In the case sub judice, although claimant is not asking for 
 
         additional permanent partial disability in this proceeding, she 
 
         still must show a change of condition not anticipated at the time 
 
         of settlement to show entitlement to additional healing period 
 
         benefits.  After a careful review of the evidence, it must be 
 
         concluded that claimant has made such a showing.  Although she 
 
         stated that her pain had been worsening prior to the settlement, 
 
         she still anticipated that her condition would allow her to 
 
         continue at K-Mart.  This did not happen.  Her back greatly 
 
         worsened which required her absence from work and extensive 
 
         treatment by Dr. Goetz.  Further, she clearly did not anticipate 
 
         the need for treatment of drug dependency to medication 
 
         prescribed by Dr. Goetz for her low back pain.  Therefore, 
 
         healing period benefits will be ordered from her last day at work 
 
         at K-Mart.
 
         
 
              Claimant is entitled to weekly benefits for healing period 
 
         under Iowa Code section 85.34(1) until claimant is medically 
 
         capable of returning to substantially similar work to the work 
 
         she was performing at the time of injury; or, until it is 
 
         indicated that significant improvement from the injury is not 
 
         anticipated, whichever occurs first.
 
         
 
              Claimant seeks healing period benefits through May 1988, the 
 
         time she was released by Dr. Goetz to attend school.  However, 
 
         claimant admitted to looking for work prior to that time.  On 
 
         June 3, 1987, it is apparent that Dr. Denhart felt that claimant 
 
         had reached maximum healing as he rated claimant's permanent 
 
         partial disability and did not suggest any treatment modalities.  
 
         Dr. Socarras felt that claimant had reached maximum healing in 
 
         March 1988, but did not opine when this might have happened at an 
 
         earlier point in time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Therefore, claimant's healing period from her changed 
 
         condition ended on June 3, 1987, at the time of the evaluation by 
 
         Dr. Denhart.
 
         
 
              Whether or not claimant is entitled to permanent disability 
 
         benefits for any change of condition was not an issue submitted 
 
         to the undersigned by the parties in the prehearing report 
 
         despite the fact that the hearing assignment order allowed for 
 
         such an issue.
 
         
 
              II.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to reasonable medical expenses incurred for treatment of 
 
         a.work injury.  However, claimant is entitled to an order of 
 
         reimbursement only if claimant is paid those expenses.  
 
         Otherwise, claimant is entitled to an order directing the 
 
         responsible defendants to make such payments directly to the 
 
         providers.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              There was little evidence offered by defendant to challenge 
 
         the causal connection of the medical expenses listed by claimant 
 
         in the prehearing report.  The evidence was overwhelming that 
 
         treatment by Dr. Goetz and her treatment at Powell II was 
 
         causally connected to the work injury.  The evaluation by Dr. 
 
         Denhart will also be awarded under Iowa Code section 85.27 as 
 
         claimant testified that she underwent this evaluation for 
 
         evaluation of her suitability for the pain center.  This was not 
 
         controverted by evidence offered by defendant.
 
         
 
              With reference to claimant's attendance at a pain center, 
 
         Dr. Winston felt that claimant was not a good candidate due to 
 
         pending litigation.  However, this was before K-Mart ended all 
 
         treatment of claimant and before claimant's admission for drug 
 
         dependency. Dr. Socarras likewise felt that claimant would not 
 
         benefit from such treatment.  Admittedly, Dr. Schneider's 
 
         opinions as director of the pain center could be viewed as 
 
         self-serving.  However, without evidence to the contrary, we must 
 
         assume that the doctor is a qualified health professional and 
 
         would be in the best position to opine whether the treatment 
 
         offered at his pain center would be beneficial to claimant.  
 
         Also, claimant's history of chemical dependency is all the more 
 
         reason why alternatives to drug usage to control her pain is 
 
         necessary.  Therefore, the pain center treatment will be awarded.
 
         
 
              A credibility finding will be made in light of the 
 
         cross-examination of claimant by defense counsel which places 
 
         claimant's credibility at issue on the time missed at work and 
 
         the extent of her condition.  Also, claimant's sincerity is at 
 
         issue with reference to her pain due to the lack of objective 
 
         evidence for such assertions as noted by the physicians in this 
 
         case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  The work injury of March 2, 1983, was a cause of a 
 
         period of disability from work beginning on March 16, 1986 and 
 
         ending on June 3, 1987 at which time claimant reached maximum 
 
         healing.  This extended absence from work was due to a change or 
 
         worsening of her low back condition not anticipated by claimant 
 
         or her physicians at the time of the compromise settlement claim 
 
         on May 29, 1985.
 
         
 
              3.  While disabled between March 16, 1986 and June 3, 1987, 
 
         claimant received treatment from Dr. Goetz in the form of 
 
         medicine and physical therapy.  The physical therapy portion of 
 
         this treatment had to end due to refusal to pay for such services 
 
         by K-Mart or any other services by Dr. Goetz or any other health 
 
         professional.  Thereafter, claimant relied upon chemicals to 
 
         relieve her low back pain.
 
         
 
              4.  In January and February 1986, claimant was compelled to 
 
         receive treatment for dependency upon the drugs prescribed for 
 
         her low back pain caused by the March 2, 1983 work injury.  
 
         Despite a recommendation during this treatment for drug 
 
         dependency to attend the pain center to find alternatives to drug 
 
         usage in controlling pain, claimant could not do so because 
 
         K-Mart refused to pay for such treatment.
 
         
 
              5.  It is in the best interest of claimant and K-Mart that 
 
         claimant find alternative means to deal with her pain other than 
 
         drugs.  Pain center treatment at Iowa Methodist Medical Center, 
 
         or a comparable treatment program, is the best method at this 
 
         time to find such alternatives.
 
         
 
              6.  The expenses listed by claimant in the prehearing report 
 
         are causally connected to the March 2, 1983 work injury and 
 
         constitutes reasonable and fair treatment for this injury 
 
         including the evaluation of Dr. Denhart in June of 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to healing 
 
         period and medical benefits awarded below.  The issue of 
 
         claimant's entitlement to permanent partial disability benefits 
 
         was not dealt with in this decision or at hearing.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant healing period benefits 
 
         from March 16, 1986 through June 3, 1987 at the rate of one 
 
         hundred fourteen and 09/100 dollars ($114.09) per week.
 
         
 
              2.  Defendant shall pay to claimant the medical expenses 
 
         listed in the prehearing report which total one thousand two 
 
         hundred forty-nine and 80/100 dollars ($1,249.80).  Claimant 
 
         shall be reimbursed if she has paid any of these expenses.  
 
         Otherwise, defendant is directed to pay the provider directly 
 
         including any late charges.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rules 343-4.33.
 
         
 
              5.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division. of 
 
         Industrial Services Rules 343-3.1.
 
         
 
              Signed and filed this 24th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Joel T. S. Greer
 
         Attorney at Law
 
         112 W. Church St.
 
         Marshalltown, Iowa  50158
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                                                 1802
 
                                                 Filed May 24, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANET I. FERREE,
 
         
 
              Claimant,                            File No. 728731
 
         
 
         vs.                                        R E V I E W -
 
         
 
         K-MART CORPORATION,                      R E 0 P E N I N G
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1802 - Healing period benefits in review-reopening cases
 
         
 
              It was held that claimant must still show a change of 
 
         condition from a prior award or settlement to be entitled to 
 
         additional healing period benefits.  However, such a change of 
 
         condition was found and healing period benefits were awarded. 
 
         Permanent partial disability benefits were not requested and not 
 
         awarded.  Medical benefits, including treatment at a pain center, 
 
         was also awarded to give claimant an alternative to use of drugs 
 
         to control her pain.  She had previously been treated for 
 
         dependency from use of the prescribed medication to control her 
 
         pain.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DARLENE ALBERTSON (BYRNES)
 
        
 
           Claimant,                          File No. 729018
 
        
 
        vs 
 
                                                A P P E A L
 
        DONALDSON, INC.,
 
                                               D E C I S I O N
 
           Employer,
 
        
 
        and
 
        
 
        TRAVELERS INSURANCE COMPANY,
 
        
 
        Insurance Carrier,
 
           Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability benefits.
 
        
 
        The record on appeal consists cf the transcript of the 
 
        arbitration proceedings claimant's exhibits 1, 2 and 4 through 
 
        13. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendants state the following issues on appeal:
 
        
 
        Whether claimant suffered permanent disability as a result of her 
 
        injury which impairs her future usefulness and earnings in her 
 
        occupation at the time of receiving the injury, and if claimant 
 
        suffers a permanent disability, the extent thereof.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein. In 
 
        addition, lt is also noted that claimant testified that she 
 
        suffers a slight lisp as a result of her scar above her lip, and 
 
        the following testimony of Dr. Jackson is also noted: "In 
 
        addition to this, she has some indrawing of her nostril and 
 
        slight nasal blockage." (Joint Exhibit 10) "She complains about 
 
        her left airway being blocked....Examination shows some narrowing 
 
        of the nostril, but intranasally, there are no abnormalities
 
        ALBERTSON V. DONALDSON, INC.
 
        Page 2
 
        
 
        to be seen....[S]ince I do not know the cause of her nasal 
 
        blockage, this must be considered to be permanent in nature." 
 
        (Jt. Ex. 4)
 
        
 
                                 APPLICABLE LAW
 
        
 
        Section 85.34(2)(t), Code of Iowa, 1981, provides: [F]or all 
 
        cases of permanent partial disability such compensation shall be 
 
        paid as follows:
 
        
 

 
        
 
 
 
 
 
        For permanent disfigurement of the face or head which shall 
 
        impair the future usefulness and earnings of the employee in his 
 
        occupation at the time of receiving the injury, weekly 
 
        compensation, for such period as may be determined by the 
 
        industrial commissioner according to the severity of the 
 
        disfigurement, but not to exceed one hundred fifty weeks.
 
        
 
        Permanent partial disabilities are classified as either scheduled 
 
        or unscheduled. A specific scheduled disability is evaluated by 
 
        the functional method; The industrial method is used to 
 
        evaluate an unscheduled disability. Martin v. Skelly Oil Co., 
 
        252 Iowa 128, 133, 106, N. W. 2d 95, 98 (1960) ; Graves v. 
 
        Eagles Iron Works, 331, N. W.2d 116 (Iowa 1983) ; Simbro v. 
 
        Delong's Sportswear, 332 N. W. 2d 886, 887, (Iowa 1983).
 
        
 
        If claimant contends he has industrial disability he has the 
 
        burden of proving his injury results in an ailment extending 
 
        beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 
 
        256 Iowa 1257, 130 N.W.2d 667 (1964).
 
        
 
                                      ANALYSIS
 
        
 
        Claimant has established that she has suffered a disfigurement of 
 
        her face as a result of a work injury. Permanent disfigurement of 
 
        the face or head is compensable under section 85.34(2)(t). 
 
        Claimant also states she now suffers from nasal blockage and a 
 
        lisp. A lisp is not corroborated by any of the medical evidence 
 
        in the case. Dr. Jackson noted the nasal blockage in two reports. 
 
        In Exhibit 4, he states he observed no abnormalities 
 
        intranasallv. Nevertheless, he did note some narrowing of the 
 
        nostril. The nostril is defined as ''either of the external 
 
        openings of the nose." Webster's New World Dictionary of the 
 
        American language. Thus, a narrowing of the nostril would 
 
        constitute disfigurement~ and would not extend claimant's injury 
 
        beyond the scheduled injury contemplated by section 85.34(2)(t). 
 
        In that no evidence of internal damage to claimant's nasal 
 
        passage was found,
 
        
 
        ALBERTSON V. DONALDSON, INC.
 
        Page 3
 
        
 
        
 
        claimant has not shown that her injury extends beyond the 
 
        scheduled loss of disfigurement. It is also noted that the 
 
        parties stipulated that the injury "if it did produce permanent 
 
        disability it is a scheduled member, that being disfigurement." 
 
        (Tr., p. 3)
 
        
 
        
 
        Section 85.34(2)(t) limits compensation for disfigurement which 
 
        "shall impair the future usefulness and earnings of the employee 
 
        in the employee's occupation at the time of receiving the injury 
 
        " (Emphasis added) This section makes it clear that the focus of 
 
        the section is on the effect claimant's disfigurement will have 
 
        on the occupation at the time of the injury, not future or 
 
        hypothetical occupations where disfigurement might play a greater 
 
        or lesser role.
 
        
 
        In that the injury in this case is limited to disfigurement under 
 
        section 85.34(2)(t), a determination must be made as to the 
 
        extent that the disfigurement will impair the future usefulness 
 
        and earnings of the claimant in her occupation. In this respect, 
 
        claimant's evidence on her future plans to enter the real estate 
 
        field are not relevant. Similarly, the effect of claimant's 
 
        disfigurement on future attempts to obtain other employment is 
 
        not within the purview of section 85.34(2)(t). Finally, although 
 

 
        
 
 
 
 
 
        claimant stated that heat, cold and sunlight affect her scar, the 
 
        record shows claimant stipulated that her injury is limited to 
 
        the scheduled injury of disfigurement and, therefore; does not 
 
        extend to the body as a whole.
 
        
 
        Claimant's occupation at the time of her injury was as a factory 
 
        worker. Claimant was not required to come into contact with the 
 
        public in connection with this work. Claimant's appearance does 
 
        not affect her abilities to perform her duties as a factory 
 
        worker. Claimant's disfigurement is not severe in terms of area 
 
        affected or discoloration. The deputy commissioner in his 
 
        decision overemphasized the severity of claimant's disfigurement, 
 
        and underemphasized the analysis of the effect of the 
 
        disfigurement on claimant's future earnings and usefulness in her 
 
        occupation at the time of the injury as required by the statute. 
 
        There is no evidence showing that claimant's disfigurement will 
 
        affect her future earnings or usefulness in her occupation. 
 
        Claimant has not lost earnings as a result of her disfigurement.
 
        
 
        It is readily apparent that the claimant has suffered a tragic 
 
        disfigurement. Anyone observing claimant's disfigurement would be 
 
        moved to sympathy but sympathy is not a proper basis for a 
 
        compensation award. Although claimant's disfigurement might well 
 
        affect her ability to obtain or hold other occupations, this case 
 
        is limited by the statutory parameters of section 85.34(2) (t)
 
        ALBERTSON V. DONALDSON, INC.
 
        Page 4
 
        
 
        
 
        Section 85.34(2)(t) differs from section 85.34(2)(u) in the 
 
        important respect that 85.34(2)(t) specifically limits 
 
        compensation to impairment of the future usefulness and earnings 
 
        of the employee in the employee's occupation at the time of the 
 
        injury. Section 85.34(2)(u) is not so limited. The legislature 
 
        has clearly differentiated section 85.34(2)(t) by inserting the 
 
        language limiting any award to the effect of the disfigurement on 
 
        the claimant's occupation at the time of the injury.
 
        
 
        It is easy to understand why the deputy commissioner awarded 
 
        claimant benefits, in view of the natural emotional sympathy for 
 
        claimant involved. However, although the result may seem harsh, 
 
        the determination must be made according to the statute. In that 
 
        claimant has failed to show that her disfigurement will impair 
 
        her future usefulness or earnings as an employee in her 
 
        occupation as a factory worker, claimant has failed to show that 
 
        she is entitled to any benefits under section 85.34(2)(t).
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. On March 17; 1983, claimant received an injury to her face 
 
        arising out of and in the course of her employment.
 
        
 
        2. As a result of claimant's injury, she suffered permanent 
 
        disfigurement to her face.
 
        
 
        3. Claimant's injury is limited to disfigurement.
 
        
 
        4. Claimant's occupation at the time of her injury was as a 
 
        factory worker.
 
        
 
        5. Claimant's rate of compensation is $231.25.
 
        
 
        6. Claimant's occupation does not involve meeting or working with 
 
        the public.
 
        
 
        7. Claimant's disfigurement does not affect her present or future 
 

 
        
 
 
 
 
 
        ability to perform the duties of her occupation.
 
        
 
        8. Claimant's disfigurement is not severe.
 
        
 
        9. Claimant has not lost earnings as a result of her 
 
        disfigurement and is not likely to lose earnings as a result of 
 
        her disfigurement in the future.
 
        
 
        10. Claimant incurred mileage expenses for medical treatment in 
 
        the amount of $490.08.
 
        
 
        ALBERTSON V. DONALDSON, INC.
 
        Page 5
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
                                                
 
        Claimant's injury is limited to disfigurement.
 
        
 
        Claimant is not entitled to benefits under Iowa Code section 
 
        85.34(2)(t).
 
        
 
        WHEREFORE, the decision of the deputy is reversed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, lt is ordered:
 
        
 
        Claimant shall take nothing from these proceedings.
 
        
 
        Claimant is to pay the costs of this action including the costs 
 
        of the transcription of the hearing proceeding.
 
        
 
        Signed and filed this 30th day of September, 1988.
 
        
 
        
 
                                 DAVID E. LINQUIST
 
                            INDUSTRIAL COMMISSIONER
 
                                                
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DARLENE ALBERTSON (BYRNES)
 
         
 
              Claimant,                         File No. 729018
 
         
 
         vs.
 
                                                 A P P E A L
 
         
 
         DONALDSON, INC.,
 
                                                D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceedings; claimant's exhibits 1, 2 and 4 through 
 
         13.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              Whether claimant suffered permanent disability as a result 
 
         of her injury which impairs her future usefulness and earnings in 
 
         her occupation at the time of receiving the injury, and if 
 
         claimant suffers a permanent disability, the extent thereof.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.  In 
 
         addition, it is also noted that claimant testified that she 
 
         suffers a slight lisp as a result of her scar above her lip, and 
 
         the following testimony of Dr. Jackson is also noted:  "In 
 
         addition to this, she has some indrawing of her nostril and 
 
         slight nasal blockage." (Joint Exhibit 10)  "She complains about 
 
         her left airway being blocked .... Examination shows some 
 
         narrowing of the nostril, but intranasally, there are no 
 
         abnormalities to be seen .... [S]ince I do not know the cause of 
 
         her nasal blockage, this must be considered to be permanent in 
 
         nature." (Jt. Ex. 4)
 
 
 
         
 

 
         
 
         ALBERTSON V. DONALDSON, INC.
 
         PAGE   2
 
 
 
 
 
                                APPLICABLE LAW
 
         
 
              Section 85.34(2)(t), Code of Iowa, 1981, provides:
 
         
 
              [F]or all cases of permanent partial disability such 
 
              compensation shall be paid as follows:
 
         
 
                 ....
 
         
 
                 For permanent disfigurement of the face or head 
 
              which shall impair the future usefulness and earnings 
 
              of the employee in his occupation at the time of 
 
              receiving the injury, weekly compensation, for such 
 
              period as may be determined by the industrial 
 
              commissioner according to the severity of the 
 
              disfigurement, but not to exceed one hundred fifty 
 
              weeks.
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If claimant contends he has industrial disability he has the 
 
         burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established that she has suffered a 
 
         disfigurement of her face as a result of a work injury.  
 
         Permanent disfigurement of the face or head is compensable under 
 
         section 85.34(2)(t).  Claimant also states she now suffers from 
 
         nasal blockage and a lisp.  A lisp is not corroborated by any of 
 
         the medical evidence in the case.  Dr. Jackson noted the nasal 
 
         blockage in two reports.  In Exhibit 4, he states he observed no 
 
         abnormalities intranasally.  Nevertheless, he did note some 
 
         narrowing of the nostril.  The nostril is defined as "either of 
 
         the external openings of the nose."  Webster's New World 
 
         Dictionary of the American Language.  Thus, a narrowing of the 
 
         nostril would constitute disfigurement and would not extend 
 
         claimant's injury beyond the scheduled injury contemplated by 
 
         section 85.34(2)(t).  In that no evidence of internal. damage to 
 
         claimantOs nasal passage was found, claimant has not shown that 
 
         her injury extends beyond the scheduled loss of disfigurement.  
 
         It is also noted that the parties stipulated that the injury "if 
 
         it did produce permanent disability it is a scheduled member, 
 
         that being disfigurement." (Tr., p. 3)
 
         
 
              Section 85.34(2)(t) limits compensation for disfigurement 
 
         which "shall impair the future usefulness and earnings of the 
 
         employee in the employee's occupation at the time of receiving 
 
         the injury..." (Emphasis added)  This section makes it clear that 
 
         the focus of the section is on the effect claimant's 
 
         disfigurement will have on the occupation at the time of the 
 
         injury, not future or hypothetical occupations where 
 
         disfigurement might play a greater or lesser role.
 

 
         
 
         
 
         
 
         ALBERTSON V. DONALDSON, INC.
 
         PAGE   3
 
         
 
         
 
         
 
              In that the injury in this case is limited to disfigurement 
 
         under section 85.34(2)(t), a determination must be made as to the 
 
         extent that the disfigurement will impair the future usefulness 
 
         and earnings of the claimant in her occupation.  In this respect, 
 
         claimant's evidence on her future plans to enter the real estate 
 
         field are not relevant.  Similarly, the effect of claimant's 
 
         disfigurement on future attempts to obtain other employment is 
 
         not within the purview of section 85.34(2)(t).  Finally, although 
 
         claimant stated that heat, cold and sunlight affect her scar, the 
 
         record shows claimant stipulated that her injury is limited to 
 
         the scheduled injury of disfigurement and, therefore, does not 
 
         extend to the body as a whole.
 
         
 
              Claimant's occupation at the time of her injury was as a 
 
         factory worker.  Claimant was not required to come into contact 
 
         with the public in connection with this work.  Claimant's 
 
         appearance does not affect her abilities to perform her duties as 
 
         a factory worker.  Claimant's disfigurement is not severe in 
 
         terms of area affected or discoloration.  The deputy commissioner 
 
         in his decision overemphasized the severity of claimant's 
 
         disfigurement, and underemphasized the analysis of the effect of 
 
         the disfigurement on claimant's future earnings and usefulness in 
 
         her occupation at the time of the injury as required by the 
 
         statute.  There is no evidence showing that claimant's 
 
         disfigurement will affect her future earnings or usefulness in 
 
         lier occupation.  Claimant has not lost earnings as a result of 
 
         her disfigurement.
 
         
 
              It is readily apparent that the claimant has suffered a 
 
         tragic disfigurement.  Anyone observing claimant's disfigurement 
 
         would be moved to sympathy.  But sympathy is not a proper basis 
 
         for a compensation award.  Although claimant's disfigurement 
 
         might well affect her ability to obtain or hold other 
 
         occupations, of section this case is limited by the 85.34(2)(t).
 
         
 
              Section 85.34(2)(t) differs from section 85.34(2)(u) in the 
 
         important respect that 85.34(2)(t) specifically limits 
 
         compensation to impairment of the future usefulness and earnings 
 
         of the employee in the employee's occupation at the time of the 
 
         injury.  Section 85.34(2)(u) is not so limited.  The legislature 
 
         has clearly differentiated section 85.34(2)(t) by inserting the 
 
         language limiting any award to the effect of the disfigurement on 
 
         the claimant's occupation at the time of the injury.
 
         
 
              It is easy to understand why the deputy commissioner awarded 
 
         claimant benefits, in view of the natural emotional sympathy for 
 
         claimant involved.  However, although the result may seem harsh, 
 
         the determination must be made according to the statute.  In that 
 
         claimant has failed to show that her disfigurement will impair 
 
         her future usefulness or earnings as an employee in her 
 
         occupation as a factory worker, claimant has failed to show that 
 
         she is entitled to any benefits under section 85.34(2)(t).
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On March 17, 1983, claimant received an injury to her 
 
         face arising out of and in the course of her employment.
 

 
         
 
         
 
         
 
         ALBERTSON V. DONALDSON, INC.
 
         PAGE   4
 
         
 
         
 
         
 
              2.  As a result of claimant's injury, she suffered permanent 
 
         disfigurement to her face.
 
         
 
              3.  Claimant's injury is limited to disfigurement.
 
         
 
              4.  Claimant's occupation at the time of her injury was as a 
 
         factory worker.
 
         
 
              5.  ClaimantOs rate of compensation is $231.25.
 
         
 
              6.  Claimant's occupation does not involve meeting or 
 
         working with the public.
 
         
 
              7.  Claimant's disfigurement does not affect her present or 
 
         future ability to perform the duties of her occupation.
 
         
 
              8.  Claimant's disfigurement is not severe.
 
         
 
              9.  Claimant has not lost earnings as a result of her 
 
         disfigurement and is not likely to lose earnings as a result of 
 
         her disfigurement in the future
 
         
 
             10.  Claimant incurred mileage expenses for medical treatment 
 
         in the amount of $490.08.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's injury is limited to disfigurement.
 
         
 
              Claimant is not entitled to benefits under Iowa Code Section 
 
         85.34(2)(t).
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant shall take nothing from these proceedings.
 
         
 
              Claimant is to pay the costs of this action including the 
 
         costs of the transcription of the hearing proceeding.
 
         
 
              Signed and filed this 30th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 

 
         
 
         
 
         
 
         ALBERTSON V. DONALDSON, INC.
 
         PAGE   5
 
         
 
         
 
         616 Lafayette St.
 
         P.0. Box 2634
 
         Waterloo, IA 50704
 
         
 
         Mr. Jon Stuart Scoles
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30 Fourth St NW
 
         P 0. Box 1953
 
         Mason City, IA 50401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed September 30, 1988
 
                                                 David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARLENE ALBERTSON (BYRNES)
 
         
 
              Claimant,                           File No. 729018
 
         
 
         vs.
 
                                                   A P P E A L
 
         DONALDSON, INC.,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant with scar on face found not entitled to any 
 
         benefits.  Claimant was a factory worker, and her scar did not 
 
         affect her future usefulness or earnings in this occupation as 
 
         required by 85.34(2)(t). Claimant's announced future plans to go 
 
         into real estate held irrelevant.  Although claimant submitted 
 
         evidence of sensitivity to heat and cold, she had stipulated that 
 
         her injury was scheduled under 85.34(2)(t) and therefore did not 
 
         extend to the body as a whole.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DARLENE ALBERTSON (BYRNES),
 
         
 
              Claimant,                               File No. 729018
 
         
 
         VS.
 
                                                   A R B I T R A T I 0 N
 
         DONALDSON, INC.,
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Darlene 
 
         Albertson (Byrnes), claimant, against Donaldson, Inc., employer 
 
         and Travelers Insurance Company, insurance carrier, for the 
 
         recovery of benefits as the result of an alleged injury on March 
 
         17, 1983.  This matter was heard on March 10, 1987 at the 
 
         courthouse in Waterloo, Blackhawk County, Iowa.  It was 
 
         considered fully submitted at the conclusion of the hearing.
 
         
 
              The record consists of the testimony of the claimant, John 
 
         Byrnes, Mary Pospichal and Vincent J. Gehling and joint exhibits 
 
         one through thirteen.  The defendants' objection to exhibit three 
 
         is sustained.
 
         
 
                             STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the pre-hearing report and order approving the 
 
         same, the parties stipulated as follows:
 
         
 
              1.  On March 17, 1983 there existed an employer-employee 
 
         relationship between the claimant and Donaldson, Inc.
 
         
 
              2.  On March 17, 1983 the claimant suffered an injury 
 
         arising out of and in the course of her employment.
 
         
 
              3.  The injury suffered by claimant caused temporary 
 
         disability from March 17, 1983 to January 19, 1984.
 
         
 
              4.  If claimant suffered permanent disability as a result 
 
         of her injury, then such disability arises from facial 
 
         disfigurement.
 

 
         
 
         
 
         
 
         ALBERTSON (BYRNES) V. DONALDSON, INC.
 
         Page   2
 
         
 
         
 
         
 
              5.  The commencement date for permanent disability, if 
 
         any, is January 19, 1984.
 
         
 
              6.  The claimant's rate of compensation is $231.25, she is 
 
         married and entitled to two exemptions.
 
         
 
              The issues presented by the parties for determination in 
 
         this proceeding are:
 
         
 
              1.  Whether the claimant suffered permanent disability as 
 
         a result of her injury, and if so, the extent of disability 
 
         suffered.
 
         
 
              2.  Whether the claimant is entitled to reimbursement for 
 
         certain travel expenses under code section 85.27.
 
         
 
                                 EVIDENCE PRESENTED
 
         
 
              Claimant testified that she is and has been employed by 
 
         defendant for 14 years.  She had previously worked as an office 
 
         manager for a livestock yard which was a position she held for 18 
 
         years.
 
         
 
              Claimant said that at the time of her injury she was 
 
         operating a hot melt machine.  She said this was a machine which 
 
         heated wax to 400 degrees in a vat for application to an air 
 
         filter manufacturing process.  One of her duties was to make sure 
 
         the vat was always 1/2 to 3/4 full.  In order to maintain that 
 
         level of wax she was required to put sheets of wax into the vat.  
 
         On the afternoon of March 17, 1983, she was putting some sheets 
 
         of wax into the vat when it bubbled over splashing hot wax on her 
 
         hand and face.  Claimant said she screamed and two co-employees 
 
         came to her aid and placed ice on the burns.  She was then taken 
 
         to Cresco Mercy Hospital.
 
         
 
              Claimant was treated at the hospital by Thomas L. Duncan, 
 
         M.D.  After the doctor administered some shots and applied 
 
         bandages, claimant was sent home.  Claimant then came under the 
 
         care and treatment of doctors at the Cresco Medical Center.  
 
         Claimant said she received extensive and painful treatment of the 
 
         burns because of an infection that developed.  After the 
 
         infection cleared, claimant underwent treatment at the Mayo 
 
         Clinic in Rochester, Minnesota consisting of steroid injections, 
 
         skin grafts and debridement.
 
         
 
              Claimant explained that her present problems from the injury 
 
         include difficulty breathing through her left nostril, an obvious 
 
         bright red scar on her lip where the skin graft was performed, a 
 

 
         
 
         
 
         
 
         ALBERTSON (BYRNES) V. DONALDSON, INC.
 
         Page   3
 
         
 
         
 
         twitching nerve in her lip which gives her the appearance of a 
 
         
 
         sneer, hypersensitivity to heat and cold and a chronic mild 
 
         infection of the graft area.  She also explained that she is 
 
         embarrassed by her scar and is reluctant to be seen in public.  
 
         Claimant said that she cannot cover the scar with makeup because 
 
         of the propensity for infection to develop as a result.  She 
 
         added that fumes or dust in the work place also aggravate the 
 
         infection.
 
         
 
              Claimant further testified that she believed she would have 
 
         difficulty finding employment if she lost her current job.  She 
 
         attributed the concern to the fact that she now feels very 
 
         uncomfortable meeting new people in most social settings, unless 
 
         she is with people she knows.  Claimant clearly became distressed 
 
         and emotionally upset at the hearing while testifying as to these 
 
         matters.
 
         
 
              On cross-examination claimant explained in detail the wage 
 
         structure and fringe benefits she has at defendants.  She also 
 
         said that after some initial psychological counseling concerning 
 
         her injury, she agreed that further counseling would not be 
 
         necessary in learning to cope with her disfigurement.
 
         
 
              Claimant said that she has not had continuing medical 
 
         problems from her injury except that an infection develops every 
 
         two or three weeks.  Although she has not missed a lot of work, 
 
         she has been told by her doctor to stay out of the plant when 
 
         infection develops.
 
         
 
              John Byrnes testified that he has been married to the 
 
         claimant for 11 years.  He said that prior to her injury, 
 
         claimant was a very socially active person involved in many 
 
         activities including motorcycle riding and square dancing.  Since 
 
         the injury, claimant has curtailed many of these activities.  He 
 
         said claimant must now be careful to protect her face from cold 
 
         and heat, particularly sunlight.  Mr. Byrnes said claimant now 
 
         has difficulty meeting people because of the obvious scarring and 
 
         the twitching and contracting of her upper lip.  He said he had 
 
         noticed people staring at the claimant's scar.
 
         
 
              On cross-examination, Mr. Byrnes said that he believed he 
 
         had been and is supportive of claimant and offers her 
 
         encouragement.  He said he thought claimant could obtain work, 
 
         though not necessarily the kind she would like.  He said claimant 
 
         enjoys working.
 
         
 
              Mary Lou Pospichal testified that she works at defendant's 
 
         and has done so for 14 years.  She said she has known the 
 
         claimant for the entire time she has worked there.  Ms. Pospichal 
 
         said that there has been a considerable change in claimant's 
 
         attitude and behavior since the injury.  She said claimant is 
 
         very self-conscious about her injury and now avoids meeting new 
 
         people.  She added that claimant is now reluctant even to go to 
 
         the lunch room to eat with other employees.  She said claimant 
 
         appears to be "on edge" all the time since the injury.  She said 
 
         she believed claimant was a very good worker for defendants.
 
         
 
              Vincent J. Gehling testified that he is the production 
 

 
         
 
         
 
         
 
         ALBERTSON (BYRNES) V. DONALDSON, INC.
 
         Page   4
 
         
 
         
 
         control manager at defendant's.  He said he is not the claimant's 
 
         immediate supervisor.  He said that claimant is in the upper 28% 
 
         of 191 employees on the seniority list at the plant.  He said 
 
         that he sees the claimant on a daily basis and that her immediate 
 
         supervisor speaks highly of her as an employee.  He stated that 
 
         he was unaware of any plant closing or layoffs in the immediate 
 
         future.
 
         
 
              Exhibit 1 is an 8 x 10 color photograph of claimant.  In her 
 
         testimony claimant said this picture was taken prior to repair of 
 
         a protruding tooth.  Exhibit 2 is a series of six photographs 
 
         showing claimant's injury in various stages of healing.
 
         
 
              The defendant's objection to exhibit 3 was sustained and it 
 
         will not be reviewed.
 
         
 
              Exhibit 4 is a letter report from Ian T. Jackson, M.D., a 
 
         plastic surgeon, dated August 27, 1986.  Dr. Jackson reports he 
 
         saw the claimant on August 15, 1986 at which time the skin graft 
 
         was soft and flat, which was satisfactory.  He noted, however, 
 
         that it was unfortunately red in color and obvious.  He also 
 
         noted that she had developed a pulling up of the nasolobial area 
 
         giving the appearance of a twitch and she had complaints of nasal 
 
         blockage and infection on the alar rim from time to time.  The 
 
         doctor characterized the claimant as having "redness of the lip 
 
         and over the grafted area and twitching" which were "definitely 
 
         very obvious, and would be noticed by the general public..." The 
 
         doctor said he was not certain as to the cause of the nasal 
 
         blockage.
 
         
 
              Exhibit 5 is a note of May 30, 1986 from S. G. Kepros, 
 
         D.D.S., in which the doctor states he had recontoured and crowned 
 
         the left lateral incisor of the claimant which had protruded 
 
         abnormally since the March, 1983 injury.
 
         
 
              Exhibit 6 is a letter dated December 23, 1985 from Donald E. 
 
         Dowe, M.S.W. concerning claimant's therapy at the Northeast Iowa 
 
         Mental Health Center in Decorah.  According to that letter, 
 
         claimant was seen on several occasions from December, 1983 
 
         through February, 1984 in an effort to help her deal with 
 
         significant stress arising from her efforts to adjust to the 
 
         disfigurement of her face.  She was last seen in February, 1984 
 
         at which time she reported she felt much improved.
 
         
 
              Exhibits 7, 8, and 10 are all brief reports from Dr. 
 
         Jackson.  All of these reports predate Dr. Jackson's report of 
 
         August, 27, 1986 (exhibit 4).  These reports have been reviewed 
 
         but need not be set forth herein.
 
         
 
              Exhibit 9 is a report dated August 28, 1985 from Peter F. 
 
         Kepros, M.D.  Dr. Kepros outlines the history of claimant's 
 
         treatment at the Cresco Medical Center.  The doctor refers in the 
 
         letter to the emergency room records at the Howard County 
 
         Hospital and the office records of the Cresco clinic.  Those 
 
         records were admitted as exhibit 12.  A review of that exhibit 
 
         discloses the extensive course of treatment claimant underwent in 
 
         connection with her burns.
 
         
 
              Exhibit 11 is a two-page report dated April 18, 1983 from 
 

 
         
 
         
 
         
 
         ALBERTSON (BYRNES) V. DONALDSON, INC.
 
         Page   5
 
         
 
         
 
         Dino S. Andriani, M.D. of the Cresco Medical Center.  This report 
 
         contains a detailed history of the claimant's treatment 
 
         immediately following the injury as well as a full description of 
 
         those injuries.
 
         
 
              Finally, exhibit 13 is an itemized statement of mileage 
 
         traveled by claimant to secure medical treatment.  Total miles 
 
         traveled were 2,042.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.34(2)(t) provides that:
 
         
 
              ... For all cases of permanent partial disability 
 
              compensation shall be paid as follows:...For permanent 
 
              disfigurement of the face or head which shall impair future 
 
              usefulness and earnings of the employee in his occupation at 
 
              the time of receiving the injury, weekly compensation, for 
 
              such period as may be determined by the industrial 
 
              commissioner according to the severity of the disfigurement, 
 
              but not to exceed one hundred fifty weeks.
 
         
 
              Both parties, through counsel, have submitted 
 
         well-researched and well-reasoned briefs on the meaning of this 
 
         statute and its application to the facts in this case.  The Iowa 
 
         Industrial Commissioner cases cited by defendants are less on 
 
         point than argued.  In this case there can be no dispute that 
 
         claimant suffers from an obvious, permanent and unsightly scar on 
 
         her upper lip.
 
         
 
              It must be noted, however, that claimant not only suffers 
 
         from an unsightly appearance, but continues to experience chronic 
 
         infection and apparent nerve involvement in the upper lip.  In 
 
         addition, the scar is supersensitive to heat, sunlight and cold 
 
         thus requiring special precautions by claimant.  Clearly these 
 
         are impairments that will and do affect claimant's employability 
 
         and thus earning capacity as a factory production worker.  Not 
 
         only is her physical appearance distracting, but it also involves 
 
         limitations on the type of work she could do.
 
         
 
              It is the duty of the industrial commissioner to award 
 
         benefits for disfigurement that impairs usefulness and earnings.  
 
         It is his further duty to assess compensation based upon severity 
 
         of this disfigurement.  In the instant case claimant has shown 
 
         considerable severity and should be compensated accordingly.  She 
 
         will be awarded 75% impairment of the face totalling 112 1/2 
 
         weeks.
 
         
 
              Claimant is also entitled to reimbursement for mileage 
 
         traveled for medical treatment which totals 2,042 miles.  The 
 
         applicable mileage rate is $.24 per mile.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, the following facts are found:
 
         
 
              1.  On March 17, 1983 claimant received an injury to her 
 
         face when 400-degree hot wax splashed on her at work.
 
         
 

 
         
 
         
 
         
 
         ALBERTSON (BYRNES) V. DONALDSON, INC.
 
         Page   6
 
         
 
         
 
              2.  Claimant underwent an extensive and painful healing 
 
         period.
 
         
 
              3.  As a result of claimant's injury, she suffered permanent 
 
         disfigurement to her face.
 
         
 
              4.  The,permanent disfigurement suffered by claimant is in 
 
         the form of an obvious bright red scar on her lip which is 
 
         hypersensative to heat and cold; subject to chronic infection; 
 
         causes a sneering look because of nerve twitching; and causes 
 
         claimant embarrassment and humiliation in public.
 
         
 
              5.  The disfigurement suffered by claimant impairs the 
 
         usefulness and future earnings of the claimant in her occupation 
 
         as a factory production worker.
 
         
 
              6.  The severity of claimant's disfigurement is equal to 75% 
 
         of the face or head.
 
         
 
              7.  Claimant's rate of compensation is $231.25.
 
         
 
              8.  Claimant returned to work January 18, 1984.
 
         
 
              9.  Claimant incurred mileage expenses for medical treatment 
 
         in the amount of $490.08.
 
         
 
              IT IS THEREFORE CONCLUDED that claimant has proven by a 
 
         preponderance of the evidence that she suffered permanent 
 
         disfigurement to her face of a severe nature entitling her to an 
 
         amount equal to 75% thereof.
 
                                        
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay unto claimant 
 
         one hundred twelve and one-half (112 1/2) weeks of permanent 
 
         partial disability at her rate of two hundred thirty-one and 
 
         25/100 dollars ($231.25) commencing January 19, 1984.  All 
 
         accrued benefits shall be paid in a lump sum together with 
 
         statutory interest thereon.
 
         
 
              IT IS FURTHER ORDERED that defendants are to pay unto 
 
         claimant four hundred ninety and 08/100 dollars ($490.08) for 
 
         mileage reimbursement.
 
         
 
              Costs are taxed to defendants.
 
         
 
         
 
              Signed and filed this 26th day June, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         STEVEN E. ORT
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         ALBERTSON (BYRNES) V. DONALDSON, INC.
 
         Page   7
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette Street
 
         P.O. Box 2634
 
         Waterloo, Iowa  50704
 
         
 
         Mr. Jon Stuart Scoles
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa  50401
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1402.40, 1803
 
                                                     Filed June 26, 1987
 
                                                     STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DARLENE ALBERTSON (BYRNES),
 
         
 
              Claimant,                               File No. 729018
 
         
 
         VS.
 
                                                    A R B I T R A T I 0 N
 
         DONALDSON, INC.,
 
         
 
              Employer,                                D E C I S I 0 N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1803
 
         
 
              Claimant suffered severe burns to face leaving obvious red 
 
         scar, chronic infection and hypersensitivity to heat, cold and 
 
         dust.  Seventy-five percent awarded for facial disfigurement.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LYNN FOSTER,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                    File No. 729595
 
         WILSON FOODS CORPORATION,
 
                                                      A P P E A L
 
              Employer,
 
              Self-Insured,                         D E C I S I O N
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              State of Iowa,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision in which he 
 
         was denied benefits for permanent partial disability because he 
 
         failed to establish a causal relationship between his injury and 
 
         the permanent partial disability to his left knee.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 3; and 
 
         defendants' exhibit A.  All parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant has established a 
 
         causal connection between the injury he sustained on March 24, 
 
         1983 and the permanent partial disability he now suffers.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, claimant sustained an injury to his left 
 
         knee on March 24, 1983 when he attempted to escape an angry 
 
         hog.  Claimant subsequently underwent arthroscopic surgery on 
 
         his left knee in April 1983 and returned to work on May 22, 
 
         1983.  Medical testimony from Mark Wheeler, M.D., indicates 
 
         that the injury on March 24, 1983 caused a preexisting 
 
         degenerative arthritic condition to flare up and that claimant 
 

 
         
 
         
 
         
 
         FOSTER V. WILSON FOODS CORPORATION
 
         Page   2
 
         
 
         
 
         now suffers a 20 percent permanent impairment of the lower extremity.  
 
         However, he attributes this impairment to the degenerative 
 
         arthritic condition and not the injury of March 24, 1983.  
 
         Claimant also sustained an injury to his right knee in October 
 
         1981 for which he was paid 20 percent permanent partial 
 
         disability benefits for the lower right extremity.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant argues that this matter should be remanded for 
 
         further proceedings in light of the decision in McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  Claimant asserts 
 
         that the cumulative injury rule discussed in that case should be 
 
         applied to determine the issue of causal connection in this case 
 
         and that further testimony should be taken to facilitate. that 
 
         application.  In the alternative, claimant asserts that the 
 
         cumulative injury rule should be applied to the evidence 
 
         presented in record.
 
         
 
              In McKeever the court affirmed the commissioner's use of the 
 
         cumulative injury rule to decide the issues of time of injury and 
 
         liability of the appropriate carrier in factually appropriate 
 
         case.  Id.  This holding does require that cases tried prior to 
 
         McKeever must be remanded.
 
         
 
              Further, application of the cumulative injury rule to the 
 
         evidence presented in this case does not establish by a 
 
         preponderance that claimant's permanent disability is related to 
 
         his work injury of March 24, 1983.
 
         
 
              In all other respects the analysis set out in the 
 
         arbitration decision accurately analyzes the issue presented; 
 
         therefore, it is adopted herein.
 
         
 
              The findings of fact, conclusions of law and order are 
 
         adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On March 24, 1983 claimant suffered an injury to his 
 
         left knee while at work.
 
         
 
              2.  Claimant's injury to his left knee aggravated a 
 
         preexisting arthritic condition.
 
         
 
         
 
              3.  The aggravation of claimant's preexisting arthritic 
 
         condition caused him to be temporarily totally disabled from 
 
         March 25, 1983 to May 22, 1983.
 
         
 
              4.  The medical expenses incurred by the claimant with Dr. 
 
         Wheeler were incurred as the result of the injury of March 24, 
 

 
         
 
         
 
         
 
         FOSTER V. WILSON FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         1983.
 
         
 
              5.  The injury of March 24, 1983 did not cause claimant to 
 
         suffer permanent disability.
 
         
 
              6.  Claimant's rate of compensation is $280.30.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         on March 24, 1983 he suffered an injury arising out of and in the 
 
         course of his employment resulting in temporary total disability 
 
         from March 25, 1983 to May 22, 1983.
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that there is a causal relationship between the injury 
 
         and the permanent partial disability to his left knee.
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that he is entitled to benefits from the Second Injury 
 
         Fund of Iowa.
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from these  proceedings.
 
         
 
              That costs of the appeal are taxed to claimant including 
 
         transcription of the hearing proceedings.
 
         
 
              Signed and filed this 11th day of May, 1987.
 
         
 
         
 
         
 
                                               ROBERT C. LANDESS
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Willis J. Hamilton
 
         Attorney at Law
 
         606 Ontario Street
 
         Storm Lake, Iowa 50583
 
         
 
         
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         Cherokee, Iowa 51012
 
         
 
         Mr. Matthew Williams
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.20 - 2209
 
                                                    Filed May 11, 1987
 
                                                    ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LYNN FOSTER,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         WILSON FOODS CORPORATION,                  File No. 729595
 
         
 
              Employer,                               A P P E A L
 
              Self-Insured,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              State of Iowa,
 
              Defendants.
 
         
 
         
 
         1402.20 - 2209
 
         
 
              Claimant failed to establish a causal connection between the 
 
         aggravation of his preexisting arthritic condition in his left 
 
         knee and permanent disability he now suffers to that knee.  On 
 
         appeal claimant argued that the case should be remanded for 
 
         further proceedings in light of the decision in McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  In McKeever the 
 
         court affirmed the commissioner's use of the cumulative injury 
 
         rule in factually appropriate cases.  This holding does not 
 
         require that cases tried prior to McKeever must be remanded.  
 
         Affirmed.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LYNN FOSTER,
 
         
 
             Claimant,
 
                                                      File No. 729595
 
         VS.
 
                                                         0 R D E R
 
         WILSON FOODS CORPORATION,
 
                                                          N U N C
 
             Employer,
 
             Self-Insured,                                 P R 0
 
         
 
         and                                              T U N C
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
             State of Iowa,
 
             Defendants.
 
         
 
         
 
              Review of the appeal decision filed May 11, 1987 reveals the 
 
         following error which needs correction:
 
         
 
              On page 2, in the second paragraph of the analysis section, 
 
         the last sentence should read: This holding does not require that 
 
         cases tried prior to McKeever must be remanded.
 
         
 
         
 
              Signed and filed this 14th day of May, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               ROBERT C. LANDESS
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Willis J. Hamilton
 
         Attorney at Law
 
         606 Ontario Street
 
         Storm Lake, Iowa 50588
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         Cherokee, Iowa 51012
 
         
 
         
 
         
 
         Mr. Matthew Williams
 
                                                
 
                                                         
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ARNOLD LEE CERETTI,
 
                                                       File Nos. 729818
 
              Claimant,                                          760405
 
         
 
         VS.                                        A R B I T R A T I 0 N
 
         
 
         DEPARTMENT  OF TRANSPORTATION,                     A N D
 
         
 
              Employer,                                  R E V I E W -
 
         and
 
                                                      R E 0 P E N I N G
 
         
 
         STATE OF IOWA,                                D E C I S I 0 N
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings in arbitration and review-reopening 
 
         brought by the claimant, Arnold Lee Ceretti, against his 
 
         employer, the Iowa Department of Transportation, and its 
 
         insurance carrier, the State of Iowa, to recover benefits under 
 
         the Iowa Workers' Compensation Act as a result of an injury 
 
         allegedly sustained on January 20, 1983 with an aggravation on 
 
         March 2, 1983.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Des Moines, Iowa, 
 
         on April 17, 1987.  A first report of injury was filed April 4, 
 
         1983.  The record was considered fully submitted at close of 
 
         hearing but for briefs.  The record consists of the testimony of 
 
         claimant, of John S. Martin, Jr., and of Charles R. Pickett, as 
 
         well as joint exhibits 1 through 22 as identified on the joint 
 
         exhibit list submitted by the parties at time of hearing.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $155.77; that 
 
         claimant received an injury arising out of and in the course of 
 
         his employment on January 20, 1983 with material aggravation of 
 
         that injury occurring on March 2, 1983; that the injury and the 
 
         material aggravation are causally related to a temporary total 
 
         disability to claimant; and that the commencement date for 
 
         additional permanent partial disability benefits owed claimant 
 
         would be March 19, 1984.  Defendants have already paid claimant 
 
         fifty weeks of permanent partial disability based on a finding
 
         of ten percent permanent partial impairment.  The issues 
 
         remaining to be heard are:
 
         
 
              1)  Whether a causal relationship exists between claimant's 
 
         injury and material aggravation and any permanent partial 
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   2
 
         
 
         
 
         disability; and
 
         
 
              2)  The extent of any additional permanent partial 
 
         disability benefits entitlement to claimant.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Twenty-six year old claimant testified that when injured on 
 
         January 20, 1983, he had been employed as a department of 
 
         transportation Equipment Operator I for three years.  An 
 
         Equipment Operator I is a nonskilled laborer who does general 
 
         road maintenance consisting of snow removal, highway patching, 
 
         and highway sign changing among other duties.  On January 20, 
 
         1983 claimant slipped and fell while moving chloride bags.  He 
 
         stated that he was off three weeks and returned prior to March 2, 
 
         1983.  On March 2, 1983, claimant was jackhammering and 
 
         experienced severe back pain with leg tingling.  Claimant treated 
 
         with D. R. Toriello, D.O., following both the January and March 
 
         incidents.  Dr. Toriello referred him to J. D. Bell, D.O., a 
 
         board certified orthopedic surgeon, who with Dr. Toriello 
 
         admitted claimant to Des Moines General Hospital on April 10, 
 
         1983.  Myelographic studies revealed a large disc rupture at L5 
 
         central.  A microdiskectomy was performed April 13, 1983.
 
         
 
              Claimant testified that Dr. Bell released him for work six 
 
         months after surgery.  Claimant stated he attempted a work return 
 
         with the department of transportation and expressed his belief 
 
         that he could have been an aggrate inspector, an individual who 
 
         takes and tests samples of road patching.  Claimant was unaware 
 
         of openings for that position at the time of his work release, 
 
         however.  Claimant testified that he applied for a number of jobs 
 
         following his injury and told his potential employers of his 
 
         previous back condition.  He reported that he had taken twenty 
 
         Iowa State Merit examinations, but received rather low test 
 
         scores and that his high school grades ranged from C's through 
 
         FOs.  Claimant did graduate with his regular high school class, 
 
         however.  Claimant testified that he was earning $6.47 per hour 
 
         when injured.  He reported that before his hiring as an Equipment 
 
         Operator I, other preinjury jobs had paid approximately $5.00 per 
 
         hour.  Approximately nineteen months following his injury, 
 
         claimant was hired by Crescent Chevrolet as an auto detailer.  An 
 
         auto detailer washes cars and prepares them for customer 
 
         delivery.  Claimant received $4.50 per hour in that position and 
 
         stayed with the company eight months.  He then took his existing 
 
         job with General Fire and Safety.  At General Fire, claimant 
 
         inspects and installs fire and safety equipment.  He initially 
 
         earned $4.50 per hour as well as a sales commission on equipment 
 
         sold, which commission generally ran from $10 to $15 per month.  
 
         Claimant is now earning $8.00 per hour with General Fire and 
 
         Safety.  He receives a number of fringe benefits including 50 
 
         percent major medical health insurance coverage.  Claimant 
 
         testified that the health insurance had a $500 deductible, but 
 
         did not indicate whether this related to the major medical 
 
         coverage or to other health insurance coverage.  Claimant 
 
         testified that at General Fire, he is not a union member and is 
 
         an employee at will.  He expressed concern stating that he was 
 
         the longest hired employee in Des Moines and had himself replaced 
 
         a terminated employee who was receiving a higher wage.  Claimant 
 
         has no retirements benefits at General Fire and Safety.  Claimant 
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   3
 
         
 
         
 
         stated that he can perform his duties at General Fire and Safety, 
 
         but uses his upper body to lift.  He reported that his employer 
 
         provides him with a helper, something that it does not generally 
 
         do for other employees.  Claimant stated that he has difficulty 
 
         driving long distances, and if his job requires him to travel 
 
         thirty to forty miles he sits on a pillow or coat while 
 
         traveling.  He reported he must sleep on a firm mattress and can 
 
         no longer do auto servicing or body work or assist at carpentry.  
 
         He stated that he has difficulty fishing and hunting and cannot 
 
         jackhammer, or shovel.
 
         
 
              John S. Martin, Jr., claimant's brother-in-law, testified 
 
         that he has known claimant for approximately four years but only 
 
         following his injury.  He reported that he sees claimant 
 
         approximately once a week and has noticed that claimant has 
 
         difficulty sitting and must twist about to become comfortable.  
 
         He reported that claimant cannot ski, or ride in a speedboat or 
 
         pick up his three year old niece.  Martin testified that he hired 
 
         claimant to paint his house approximately two years ago and 
 
         claimant could only work a couple of hours per day because of 
 
         back pain.  He reported that claimant did not paint the house 
 
         overhang.
 
         
 
              Charles R. Picket, a department of transportation 
 
         Maintenance Supervisor III for the past eight years, testified 
 
         that he was claimant's supervisor.  Mr. Picket reported that 
 
         claimant began work on May 18, 1981 earning $5.23 per hour and 
 
         that claimant was earning $6.35 per hour when he last worked with 
 
         the department of transportation.  Picket testified that an 
 
         Equipment Operator I now earns $8.14 per hour and receives the 
 
         usual state employee fringe benefits including paid vacation, 
 
         accumulating sick leave, a $10,000 life insurance policy, 
 
         hospital insurance, dental insurance, and Iowa Public Employees 
 
         Retirement System benefits.  Picket explained that advancement to 
 
         Equipment Operator II is not automatic, but at the current time 
 
         is based on education and experience.  He stated that claimant 
 
         could have remained an Equipment Operator I for ten to fifteen 
 
         years, and that the physical demands of an Equipment Operator II 
 
         and III are about the same as those for an Equipment Operator I.  
 
         He stated that
 
         
 
         supervisor positions are not as physically demanding as equipment 
 
         operator positions.  Mr. Picket began work with the department of 
 
         transportation twenty-two years ago and advanced to his current 
 
         position from an original position as an Equipment Operator I 
 
         equivalent.
 
         
 
              On July 12, 1983, Dr. Bell opined that claimant had 
 
         responded well to his lumbar laminectomy and had a ten percent 
 
         permanent partial "disability."  On a medical report of August 
 
         24, 1983, the doctor stated that on physical examination on 
 
         August 23, 1983, claimant had good range of motion without 
 
         significant pain but with some low back stiffness.  On December 
 
         5, 1983, Dr. Bell opined that claimant was not capable of heavy 
 
         manual labor, but could sit comfortably for extended periods, but 
 
         should not stoop or lift excessively or repetitively.  On 
 
         December 22, 1983, the doctor stated claimant should not lift 
 
         greater than twenty-five pounds and could not stoop, bend or 
 
         twist.  In his deposition, the doctor stated that excessive 
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   4
 
         
 
         
 
         sitting is not recommended following back surgery and reported 
 
         that claimant's lifting of twenty-five pounds should not be done 
 
         more than ten times per day.
 
         
 
              The following exchange took place in Dr. Bell's deposition 
 
         of June 24, 1986:
 
         
 
              Q.  Okay. Now Mr. Ceretti, as I understand it, on -- in his 
 
              petition for the workmen's compensation, maintained that he 
 
              was injured on January 20th, 1983 in which he fell off a 
 
              mound at work and on March 2nd, 1983 he re-aggravated that 
 
              condition using a jackhammer at work.
 
         
 
                 Was that part of the medical history that you have?
 
         
 
              A.  The medical history that we had gotten was associated 
 
              with opening some type of trailer door while he was at work.  
 
              Falling off of the dirt mound was part of my memory as far 
 
              as recollection goes.  It is not part of the record.
 
         
 
              Q.  Okay. Is that the type of activity that is consistent 
 
              with being causally connected to the kind of injury that he 
 
              had?
 
         
 
              A.  That is correct.
 
         
 
              Q.  Okay. And is the injury -- the situation that the 
 
              medical circumstances that he had -- namely a ruptured disk 
 
              in this case -- Was that something that was congenital and 
 
              born with? Or was that something that was associated with 
 
              trauma?
 
         
 
              A.  We're talking about the ruptured disk?
 
         
 
              Q.  Yeah.
 
         
 
         
 
         
 
              A.  The ruptured disk is something that a person has and 
 
              develops due to trauma.  Not something that they're born 
 
              with.
 
         
 
              Q.  Okay. And do you have an opinion within a reasonable 
 
              degree of medical certainty that -- that the impairment and 
 
              injury that he has is causally connected then consistent 
 
              with the medical history that was given to you?
 
         
 
              A.  Yes, it is consistent with the medical history.
 
         
 
         (Bell dep., p. 13, 1. 25; p. 14, 11 1-25; p. 15, 11 1-7.)
 
         
 
              Joel Boyd, D.O., examined claimant on February 27, 1985.  
 
         Claimant's deep tendon reflexes were +2/4, extensor hallus longus 
 
         strength was equal bilaterally; claimant had no sensory loss to 
 
         pinprick or light touch.  Claimant continued to complain of 
 
         occasional back spasm.  Flexoril was prescribed.  Dr. Boyd's 
 
         impression was that claimant was stable post lumbar laminectomy.
 
         
 
              Marian S. Jacobs, a vocational consultant, interviewed 
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   5
 
         
 
         
 
         claimant, reviewed the restrictions imposed by Dr. Bell and 
 
         reviewed state vocational rehabilitation assessments of claimant 
 
         and produced a disability report.  Ms. Jacobs stated that 
 
         claimant had excellent communication skills and that state 
 
         vocational rehabilitation records indicated that claimant's math 
 
         skills were at the 7.6 grade level, that his reading skills were 
 
         at the 9.8 grade level, and were adequate for vocational 
 
         training, that claimant had good tool knowledge, good manual and 
 
         finger dexterity, excellent eye and hand coordination, accurate 
 
         sorting and discrimination skills, good verbal abilities, good 
 
         basic mechanical and woodworking skills, the ability to assemble 
 
         and disassemble an air compressor and a washing machine 
 
         transmission, and unsatisfactory electronic boards comprehension.  
 
         Ms. Jacobs reported that all of claimant's previous jobs but for 
 
         short order cook, gas and oil service attendant, and salesperson, 
 
         were jobs requiring medium to heavy work and lifting of 50 to 100 
 
         pounds.  She reported that the delineated jobs were light jobs 
 
         and generally paid from $4.00 to $5.03 per hour.  She stated 
 
         that, additionally, claimant could work as a paper products 
 
         inspector generally expecting to earn $6.31 per hour.  Ms. Jacobs 
 
         opined that a worker without disability is generally hired over a 
 
         qualified but disabled worker.  She stated that claimant has an 
 
         additional loss in fringe benefits and advancement opportunities 
 
         if he is unable to find work within the public sector or with a 
 
         union employer.  She reported that claimant has no supervisory 
 
         skills and that his low math skills preclude employment as 
 
         either
 
         
 
         
 
         a billing clerk or payroll clerk, paying $6.36 per hour and $7.51 
 
         per hour, respectively.  Ms. Jacobs stated that, when injured, 
 
         claimant was earning $5.88 per hour with fringe benefits equaling 
 
         an additional 26 percent or $1.53 per hour.  She stated that if 
 
         claimant continued to be employed as an Equipment Operator I he 
 
         would be earning $6.26 per hour with additional fringe benefits 
 
         of 26 percent or $1.63 per hour.  She reported that claimant's 
 
         current earnings is $8.00 per hour with approximately $10 to $15 
 
         per month commissioner.  She opined that if claimant left the job 
 
         for any reason, work within his physical limitations and within 
 
         Dr. Bell's recommendations would generally pay from $4.00 to 
 
         $6.31 per hour.  Ms. JacobOs opined that claimant had a variety 
 
         of specific, marketable skills, however, those being vehicle and 
 
         equipment operation, maintenance, repair, service, inspection, 
 
         and installation, cooking, and sales.  She stated that he had 
 
         progressed from an unskilled to a semiskilled worker.  She stated 
 
         the following regarding claimant's ability to engage in 
 
         employment:
 
         
 
              Mr. Ceretti is working in a job, utilizing his installation, 
 
              maintenance and repair skills.  However, if this employment 
 
              is exertionally inappropriate, given his physical 
 
              limitations and the nature of his disability, then, in my 
 
              opinion, Mr. Ceretti faces a reduction in job options and 
 
              earning capacity. (Emphasis in the original.)
 
         
 
              Ms. Jacobs' report was dated January 14, 1987.
 
         
 
              State Vocational Rehabilitation staffing reports of May 2, 
 
         1984 characterized claimant as extremely highly motivated to 
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   6
 
         
 
         
 
         obtain employment.  Other vocational rehabilitation reports state 
 
         that claimant did not appear to have a great deal of difficulty 
 
         with his back and did not express a great deal of discomfort in 
 
         the evaluation area.  Claimant was reported as showing a two 
 
         grade level improvement in his math skills in only five periods 
 
         in the academic preparation area.  The reporter stated that that 
 
         performance showed a great deal of promise that claimant could 
 
         improve his math skills.  It was hoped that claimant would 
 
         continue to upgrade those skills through adult education.  On 
 
         February 29, 1984, claimant self-reported to the vocational 
 
         rehabilitation evaluator that he is able to lift 50 to 75 pounds, 
 
         but not repetitiously; that he could be on his feet and could sit 
 
         for two to three hours before he experienced pain.  Various notes 
 
         in the vocational rehabilitation reports speak of disruptions in 
 
         the evaluation process variously attributed to job search, merit 
 
         testing, and back pain.
 
         
 
              One hundred seventy-one dollars in medical costs with Dr. 
 
         Bell are submitted.  These consist of office examinations of 
 
         February 14, 1984, March 6, 1984, March 12, 1984, and March 26, 
 
         1984.  A March 6, 1984 record notes as an explanation of activity 
 
         OINJ Tendon _______ trigger.O  The charge and debit for that 
 
         service is $49.00.  Medical costs with East Des Moines Clinic 
 
         with which Dr. Toriello is associated with consist of costs of 
 
         $68.00. Dr. Toriello's impression is as status post lumbar 
 
         laminectomy.
 
         
 
              The balance of the evidence was reviewed and considered in 
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   7
 
         
 
         
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our initial issue is whether a causal relationship exists 
 
         between claimant's injury and material aggravation and any 
 
         permanent partial disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of January 20, 1983 and March 2, 
 
         1983 are causally related to the disability on which he now bases 
 
         his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion-is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Dr. Bell has stated that claimant has a ten percent 
 
         permanent partial "disability" following his lumbar laminectomy.  
 
         In his deposition, the doctor stated the history claimant gave 
 
         was consistent with disc herniation such as claimant suffered.  
 
         The history of the initial event that Dr. Bell relayed was at 
 
         variance with that claimant gave at hearing; the history of the 
 
         material aggravation was consistent with that which claimant 
 
         gave.  Dr. Bell acknowledged the history he recited was from 
 
         memory and not part of the medical record.  Both the history 
 
         claimant recited of the initial injury and the history of the 
 
         material aggravation both Dr. Bell and claimant recited are 
 
         consistent with the progress of claimant's symptomatology to his 
 
         ultimate surgery and its sequala including the functional 
 
         impairment and restrictions 
 
         
 
         Dr. Bell placed on claimant.  The requisite causal connection is 
 
         found.
 
         
 
              We reach the question of whether claimant is entitled to 
 
         permanent partial disability benefits beyond the ten percent 
 
         permanent partial disability benefits defendants have already 
 
         paid.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   8
 
         
 
         
 
         (1943).
 
         
 
              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. 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).
 
         
 
              In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
         1980) the Industrial Commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earningsO caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability.O  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability. 
 
               This would appear to be so even if the workerOs "capacity" 
 
              to earn has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any 
 
         sort
 
         
 
         
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden, 288 N.W.2d 181.
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted. Id.
 
         
 
              Claimant is 26 years old.  As such, he is a young worker 
 
         with more vocational flexibility than an older worker would have. 
 
          He is a high school graduate who apparently did poorly in 
 
         school.  His math skills improvement at state vocational 
 
         rehabilitation would suggest his non-noteworthy high school 
 
         grades related to immaturity and not to actual intellectual 
 
         incapacity, however.  Hence, that lackluster performance cannot 
 
         be said to preclude claimant's entering and obtaining vocational 
 
         retraining should he so desire.  Indeed, Ms. Jacobs notes 
 
         claimant has advanced from an unskilled to a semi-skilled worker.  
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page   9
 
         
 
         
 
         Claimant currently works installing fire safety equipment; has 
 
         done so for several years, and is able to perform his duties 
 
         satisfactory albeit with some modification and some assistance 
 
         from a helper his employer provides him.  Claimant had a good 
 
         response to his laminectomy and has a ten percent permanent 
 
         partial Odisability" rating from Dr. Bell.  Dr. Bell has 
 
         restricted claimant to 25 pounds lifting no more than ten times 
 
         per day and advised against stooping, bending or twisting.  He 
 
         stated claimant can sit comfortably for extended periods but also 
 
         stated excessive sitting is generally not recommended following 
 
         back surgery.  Claimant reported considerably less restrictions 
 
         to his vocational evaluator on February 29, 1984.  Claimant then 
 
         stated he could lift 50 to 75 pounds nonrepetitiously and could 
 
         sit and be on his feet for two or three hours before he 
 
         experienced pain.  Claimant is highly motivated to remain 
 
         employed and continue job advancement.  He was able to remain in 
 
         his previous job and his employer apparently attempted no 
 
         accommodation of his injury and did not assist him in obtaining 
 
         other employment.  Claimant's present salary is greater than his 
 
         salary when injured and near what he would now be earning had he 
 
         remained with the injury employer.  Claimant did lose a number of 
 
         fringe benefits, however.  His back injury likely limits his 
 
         access to unskilled and semiskilled jobs with larger employers 
 
         who are more likely to provide like protections for their 
 
         employees.  Claimant expressed concern for his job security with 
 
         his present employer.  His successful advancement on that job and 
 
         his employer's willingness to accommodate him by providing him 
 
         with a helper suggests he is a respected and valued employee 
 
         whose fears for his job safety are ill-founded.  Nevertheless, we 
 
         do believe claimant's injury has impaired his ability to compete 
 
         in the job market such that he has less flexibility in job 
 
         choices and less options should his present employment end.  
 
         Claimant has sustained an overall loss of earnings of 15 percent.  
 
         Defendants are given credit for 10 percent permanent partial 
 
         disability already paid.
 
                                 
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant injured himself January 20, 1983 when he slipped 
 
         and fell while moving chloride bags in the course of his 
 
         employment as a department of transportation Equipment Operator 
 
         I.
 
         
 
              Claimant materially aggravated his injury March 2, 1983 
 
         while jackhammering in the course of his employment.
 
         
 
              Claimant underwent a microdiskectomy/lumbar laminectomy at 
 
         L5 central April 13, 1983.
 
         
 
              Claimant could not return to the heavy manual work required 
 
         of an Equipment Operator I and was off work nineteen months 
 
         before finding other employment.
 
         
 
              Defendant employer did not accommodate claimant or attempt 
 
         to find him other employment.
 
         
 
              Claimant subsequently found his present job where he 
 
         performs semiskilled labor.
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page  10
 
         
 
         
 
         
 
              Claimant now earns only slightly less than what he would now 
 
         be earning as an Equipment Operator I but lost a number of fringe 
 
         benefits.
 
         
 
              Claimant has less job security in his present job but his 
 
         job appears stable; claimant's present employer accommodates 
 
         claimant's physical needs by providing claimant an assistant.
 
         
 
              Claimant is medically advised against bending, stooping, and 
 
         twisting.
 
         
 
              Claimant is medically restricted to lifting 25 pounds no 
 
         more than ten times per day, but self-reported he could lift 50 
 
         to 75 pounds nonrepetitively.
 
         
 
              Claimant is medically advised against prolonged sitting on 
 
         account of his back surgery, but self-reported being able to sit 
 
         and stand two to three hours before experiencing pain.
 
         
 
              Claimant is well motivated to work.
 
         
 
              Claimant is 26 years old and a high school graduate.
 
         
 
              Claimant improved two grade levels in math in only five 
 
         sessions in state vocational rehabilitation academic training.
 
         
 
         
 
         
 
         
 
              Claimant had lackluster high school grades which likely did 
 
         not relate to a lack of intellectual ability.
 
         
 
              Claimant could seek and complete vocational training should 
 
         he desire.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established a causal relationship between his 
 
         January 20, 1983 injury and his March 2, 1983 material 
 
         aggravation and the disability on which he now bases his claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of January 20, 1983 and his material 
 
         aggravation of March 2, 1983 of 15 percent.  Defendants are 
 
         entitled to a credit for 10 percent permanent partial disability 
 
         benefits previously paid.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability for an 
 
         additional twenty-five,(25) weeks at the rate of one hundred 
 
         fifty-five and 77/100 dollars ($155.77) with those benefits to 
 
         commence March 19, 1984.
 
         
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page  11
 
         
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
         
 
              Signed and filed this 22nd day of June, 1987.
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         P.O. Box 1066
 
         Middle Road
 

 
         
 
         
 
         
 
         CERETTI V. DEPARTMENT OF TRANSPORTATION
 
         Page  12
 
         
 
         
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Dennis J. Kirkwood
 
         Attorney at Law
 
         6963 University Avenue
 
         Des Moines, Iowa 50311
 
         
 
         Mr. Robert D. Ewald
 
         Assistant Attorney General
 
         Hoover Building
 
         LOCAL
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed 6-22-87
 
                                                     Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ARNOLD LEE CERETTI,
 
                                                       File Nos. 729818
 
              Claimant,                                          760405
 
         
 
         VS.                                        A R B I T R A T I 0 N
 
         
 
         DEPARTMENT OF TRANSPORTATION,                      A N D
 
         
 
              Employer,                                 R E V I E W -
 
         and
 
                                                     R E 0 P E N I N G
 
         
 
         STATE OF IOWA,                               D E C I S I 0 N
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 15% permanent partial disability benefits. 
 
          Defendants given credit for 10% permanent partial disability 
 
         benefits previously paid.