BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JAMES L. MAGUIRE,
 
         
 
              Claimant,
 
                                                 FILE NO. 735420
 
         VS.
 
                                                   A P P E A L
 
         GADBURY PLUMBING & HEATING,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AMERICAN STATES INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              Claimant appeals from a proposed decision in arbitration in 
 
         which he was denied benefits for an alleged work related injury 
 
         of May 5, 1983.
 
         
 
              The record consists of the pleadings in the arbitration 
 
         proceeding; the transcript of the hearing together with 
 
         claimant's exhibit 1; and defendants' exhibits A through D as 
 
         well as the appeal briefs of the parties.
 
         
 
                                  ISSUES
 
         
 
              The issues on appeal are whether claimant was an employee of 
 
         the named employer on May 5, 1983; and whether claimant received 
 
         an injury which arose out of and in the course of his employment 
 
         on May 5, 1983.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The evidence was well summarized by the deputy in the 
 
         statement of facts presented and will not be repeated herein.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The deputy adequately and accurately set forth the 
 
         appropriate law determining the existence of the 
 
         employer/employee relationship.  Such will not be further set 
 
         forth herein.  Likewise, the deputy's analysis of that issue is 
 
         consistent with the law set forth.  We furthermore agree with the 
 
         defendants' statement in their brief that the factors 
 
         establishing the existence of an employer/employee relationship 
 
         did not exist in this case.  As noted, claimant was not under any 
 
         contract of service at the time of his injuries; the employer had 
 
         no control over claimant's activities; the employer had no 
 
         responsibility for the payment of wages to claimant; the employer 
 
         had no apparent right to discharge or terminate claimant beyond 
 
         the termination already in effect.  Claimant argues in his brief 
 
         and reply brief that the appropriate-question is whether a long 
 

 
         term employee who is laid off because of the seasonal nature of 
 
         the work was terminated or whether the employment relationship 
 
         continued.  He indicates that under an "economic reality" theory 
 
         which he states that Professor Larson has espoused at 1C, Larson 
 
         Workerman's Compensation Law, section 43.41, such an individual 
 
         should be considered an employee during the period of layoff.  
 
         Adoption of claimant's argument would create the rather 
 
         incongruous situation wherein an individual could be an 
 
         non-employee for unemployment compensation purposes while 
 
         remaining an employee for workers' compensation purposes.  That 
 
         result may well be beyond the legislative intent underlying both 
 
         the employment compensation statutes and workers' compensation 
 
         statutes.  However, we need not reach that question as the 
 
         evidence presented clearly shows that an employer/employee 
 
         relationship did not exist between claimant and the named 
 
         employer on May 5, 1983 at the time of the motor vehicle accident 
 
         which is the subject matter of this claim.
 
         
 
              As the employer/employee relationship is the fundamental 
 
         basis of workers' compensation, claimant's failure to prevail on 
 
         this threshold issue disposes of his claim.  We note, however, 
 
         that the deputy correctly states that even if claimant had proven 
 
         the existence of an employer/employee relationship, he still 
 
         would not have prevailed on the arising out of and in the course 
 
         of question.  The deputy correctly analysed the latter question.  
 
         As the deputy noted, claimant argues that defendants are liable 
 
         for his injuries because the trip to Des Moines was of mutual 
 
         benefit to claimant and the named employer.  We agree with the 
 
         deputy's conclusion that in the absence of an employer/ employee 
 
         relationship that argument would establish a situation in which 
 
         any contractor who received any benefit might be held responsible 
 
         for a claimant's alleged injuries.  We also find no statutory 
 
         authority for such liability.  Further, while an union member 
 
         elected to three union positions to which he devoted full time, 
 
         was found to have received an injury which arose out of and in 
 
         the course of his employment in Caterpillar Tractor Company v. 
 
         Shook, 313 N.W.2d 503 (Iowa 1981), we are unable to find that any 
 
         union member attending any union function does so as a matter of 
 
         mutual benefit to the member and the employer.  We further find 
 
         that votes on wage increases or reductions and other matters of 
 
         contract negotiation may place an employee's interests at odds 
 
         with the employer's interest such that no mutual benefit 
 
         generally arises from the employee's active participation in and 
 
         voting on the union proposal.  We find that the record in this 
 
         case does not support a finding that claimant's vote on the wage 
 
         reduction proposal was requested by the named employer or 
 
         necessarily would have benefited both himself and the named 
 
         employer.
 
         
 
              Review of the record discloses that the findings of fact and 
 
         the conclusions of law of the deputy are proper with the 
 
         modifications as set forth below.
 
         
 
              WHEREFORE, the proposed decision as modified herein is 
 
         adopted as the final agency decision.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              The named employer did not pay claimant to attend the union 
 
         meeting on the evening of May 4, 1983.
 
         
 
              Claimant was not reimbursed for any expenses resulting from 
 

 
         
 
         
 
         
 
         MAGUIRE V. GADBURY PLUMBING & HEATING
 
         Page   3
 
         
 
         
 
         his attendance at the union meeting.
 
         
 
              Defendants did not furnish claimant's transportation to the 
 
         union meeting.
 
         
 
              Claimant attended the union meeting with other union members 
 
         in transportation provided by the other union members.
 
         
 
              Claimant was not in attendance at the union meeting as a 
 
         representative of the named employer.
 
         
 
              The named employer did not know the claimant was attending 
 
         the union meeting.
 
         
 
              Claimant attended the union meeting at his own volition and 
 
         not at the request or behest of the named employer.
 
         
 
              Claimant had worked for the named employer in the past but 
 
         was terminated because of lack of work on February 24, 1983.
 
         
 
              Claimant did not work for the named employer after March 28, 
 
         1983.
 
         
 
              Claimant was on layoff from the named employer at the time 
 
         of the May 5, 1983 motor vehicle accident and was then receiving 
 
         unemployment compensation.
 
         
 
              After the union meeting on May 4, 1983, claimant was told he 
 
         might start working for the named employer the following day.
 
         
 
              Claimant worked out of a union hall.
 
         
 
              A union member's vote on a wage reduction package is not 
 
         necessarily of mutual benefit to the member's employer.
 
         
 
              Claimant's voluntary and independent vote on the proposed 
 
         wage reduction package was not necessarily of benefit to the 
 
         named employer.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established that an employer/employee 
 
         relationship existed with the named employer at the time of his 
 
         May 5, 1983 motor vehicle accident.
 
         
 
              Claimant has not established that his May 5, 1983 motor 
 
         vehicle accident was an injury which arose out of and in the 
 
         course of his employment with the named employer.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That defendants pay the cost of the attendance of the 
 
         shorthand reporter at the hearing.
 

 
         
 
         
 
         
 
         MAGUIRE V. GADBURY PLUMBING & HEATING
 
         Page   4
 
         
 
         
 
         
 
              That each party pay costs for production of their own 
 
         evidence.
 
         
 
              That claimant pay the costs of the appeal.
 
         
 
         
 
                     Signed and filed this 29th day of July, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                 
 
                                      HELEN JEAN WALLESER
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. M. Gene Blackburn
 
         Attorney at Law
 
         142 North Ninth Street
 
         P. 0. Box 817
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    2001; 1100
 
                                                    Filed July 29, 1987
 
                                                    HELEN JEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JAMES L. MAGUIRE,
 
         
 
              Claimant,
 
                                                 FILE NO. 735420
 
         VS.
 
                                                   A P P E A L
 
         GADBURY PLUMBING & HEATING,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AMERICAN STATES INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         2001; 1100
 
         
 
              Deputy's finding that construction worker on seasonal lay 
 
         off and drawing unemployment compensation was not an employee of 
 
         the named employer and did not receive an injury which arose out 
 
         of and in the course of his employment when injured in motor 
 
         vehicle accident while returning from union meeting.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DENNIS McANDREW,
 
         
 
              Claimant,
 
                                                 File No. 735429
 
         vs.
 
                                              A R B I T R A T I O N
 
         DEERE & COMPANY,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by.Dennis 
 
         McAndrew, claimant, against Deere & Company, employer 
 
         (hereinafter referred to as Deere), for workers' compensation 
 
         benefits as a result of an alleged injury on March 4, 1983.  On 
 
         May 3, 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 witnesses:  Angela McAndrew, Ronald Burke, Thomas 
 
         Snyder, Steve Hansen and Patricia Crippes.  The exhibits received 
 
         into the evidence at hearing are listed in the prehearing report.  
 
         At hearing, the undersigned stated during cross-examination of 
 
         claimant that portions of claimant's deposition will be received 
 
         as commissioner's exhibit 1 in lieu of a reading of the testimony 
 
         into the record by defense counsel at hearing.  This exhibit was 
 
         not provided with other exhibits at the close of the hearing.  
 
         After inquiry of the parties during preparation of this decision, 
 
         neither side expressed a current desire to place the deposition 
 
         testimony involved into the record.
 
         
 
              According to the prehearing report the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  There was an employer/employee relationship between 
 
         claimant and defendant at the time of the alleged injury;
 
         
 
              2.  Claimant is only seeking temporary total disability or 
 
         healing period benefits front March 1, 1983 through July 10, 1983 
 
         and defendant agrees that claimant was not working during this 
 
         period of time.  Claimant returned to work on July 11, 1983 and 
 
         remains employed at Deere at the present time;
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $267.72 
 
         per week; and,
 
         
 
              4.  With reference to the medical expenses requested by 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   2
 
         
 
         
 
         claimant as listed in the prehearing report, it was agreed that 
 
         the charges are fair and reasonable and causally connected to the 
 
         asthmatic condition upon which the claim is based but the issue 
 
         of the causal connection of this asthmatic condition to a work 
 
         injury remains an issue to be decided.
 
         
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in course of employment;
 
         
 
             II.  Whether claimant has complied with the notice provisions 
 
         of Iowa Code section 85.23;
 
         
 
            III.  Whether there is a causal relationship between the 
 
         alleged work injury and the claimed disability;
 
         
 
             IV.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
              V.  The extent of claimants entitlement of medical benefits 
 
         under Iowa Code section 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.
 
         
 
              Claimant testified that he has worked for Deere since 
 
         October, 1973.  Claimant has held numerous jobs over the years 
 
         with Deere such as machine tool operator, radial drill operator, 
 
         line assembler, painter, material handler and industrial truck 
 
         operator in addition to his current job as a jeep driver.  
 
         According to Ron Burke from the Deere personnel department, 
 
         claimant earns $13.375 per hour in his current job.  Claimant's 
 
         hourly rate at the time of the alleged injury was $10.085 per 
 
         hour.  However, claimant also earned incentive pay in his former 
 
         job which he is not able to earn in his current job.
 
         
 
              In November, 1981 claimant bid for and obtained a touch up 
 
         painter position at Deere, the position he held at the time of 
 
         the alleged work injury.  This job involved touch up painting, by 
 
         hand, of large equipment following spray painting.  Claimant was 
 
         physically located near the spray painting booth.  Claimant said 
 
         that the doors of the paint booth were open most of the time 
 
         during the course of a normal work day.  Claimant testified that 
 
         while performing this job he observed and smelled paint mist in 
 
         the air.  Claimant said that he would "blow his nose" three times 
 
         a day and observe the color of the paint being used that day in 
 
         his handkerchief.  Initially, claimant used a can of touch up 
 
         paint provided by the foreman but later claimant would actually 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   3
 
         
 
         
 
         go into the paint booth where equipment was being spray painted 
 
         and obtain small quantities of touch up paint directly from the 
 
         sprayer gun.  Claimant said that although painters in the 
 
         spraying booth were required to do so, at no time was he required 
 
         to wear protective masks or equipment.  Claimant said that his 
 
         foreman told him that he did not need to wear a protective mask 
 
         and therefore he did not do so.
 
         
 
              The claim herein is based upon a severe asthma condition 
 
         which is allegedly the result of exposure to paint and solvent 
 
         fumes while performing the touch up painter job from November, 
 
         1981 to March, 1983.  Claimant stated that he had no asthma or 
 
         chronic lung or breathing problems before December, 1982.  
 
         According to his past medical records, claimant was treated once 
 
         in 1978 for pneumonia.  On September 1, 1982 claimant was treated 
 
         by H. W. Miller, M.D., his family physician, for acute bronchitis 
 
         with symptoms of a low grade temperature, mild tachycardia and a 
 
         productive cough.  On December 21, 1982 claimant was treated by 
 
         Dr. Miller for what the doctor believed at the time was a chest 
 
         cold, increased temperature and increased cough with yellowish 
 
         sputum and wheezing.  Again, Dr. Miller felt that claimant had 
 
         acute bronchitis.  Claimant's condition then worsened and he 
 
         began to experienced considerable difficulty breathing.  Claimant 
 
         was then hospitalized for three days on December 29, 1982 and 
 
         obtained some relief from steroid and bronchial dialator 
 
         medication.  During the hospitalization, claimant's care was 
 
         transferred to an allergist, James Gillilland, D.O.  Claimant 
 
         returned to work a few times in early 1983 but experienced a 
 
         recurrent of episodes of breathing difficulties in the form of 
 
         asthmatic attacks from exposure to the paint fumes.  Thereupon, 
 
         Dr. Gillilland imposed work restrictions against exposure to 
 
         these fumes.  After skin testing of common allergic agents, Dr. 
 
         Gillilland was unable to identify the specific anergic agent 
 
         causing claimant's problem.; and diagnosed that claimant suffered 
 
         from "intrinsic" asthma.  However, Dr. Gillilland concluded that 
 
         claimant was exposed to polyurethane from his examination of 
 
         paint samples and can labels furnished to him by claimant and 
 
         noted that this substance was a known cause of industrial 
 
         asthma.
 
         
 
              In March, 1983 claimant's symptoms continued and he 
 
         requested evaluation and treatment from the University of Iowa 
 
         Hospitals and Clinics.  However, he was referred instead by 
 
         defendant to Joseph Kaplan, M.D., a pulmonary or lung specialist.  
 
         Dr. Kaplan immediately hospitalized claimant and placed him on 
 
         liquid steroids which markedly improved his condition.  Dr. 
 
         Kaplan concludes that claimant suffered from steroid dependent 
 
         asthma.  After the hospitalization, Dr. Kaplan continued claimant 
 
         on steroids but gradually weaned him from liquid steroids to 
 
         steroids taken by inhalation.  According to Dr. Kaplan steroids 
 
         taken by inhalation presents fewer side effects than those taken 
 
         in liquid form.  By June, 1983, claimant was only taking 
 
         inhalation steroids and he was released to return to work by Dr. 
 
         Kaplan in July, 1983 with restrictions against exposure to 
 
         temperatures below 20 degrees Fahrenheit and to dust particles, 
 
         paint fumes or chemical fumes of any type.  The doctor also 
 
         indicated at the time that claimant was physically deconditioned 
 
         from his illness and that strenuous work would have to be 
 
         restricted as well.  Despite his releases, claimant was 
 
         maintained on extensive medication including steroids.  After 
 
         returning to work, claimant has held various jobs located away 
 
         from chemical and paint fumes and performs most of his duties 
 
         outdoors.  Claimant stated that he is able to work so long as he 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   4
 
         
 
         
 
         is not within the plant or near the paint products or fumes.  Dr. 
 
         Kaplan testified in his deposition that claimant will probably be 
 
         taking steroids for the rest of his life.
 
         
 
              In March, 1984 claimant was referred by Dr. Kaplan to a 
 
         psychiatrist, William Nissen, M.D., for symptoms of irritability, 
 
         anger, loss of sleep, appetite and marital difficulties, anxiety 
 
         and suicidal ideation.  According to Dr. Nissen, claimant suffers 
 
         from depression and anxiety due to the side effects from taking 
 
         steroids and also from stress caused by his asthmatic illness and 
 
         resulting disability.  Dr. Nissen than began a treatment program 
 
         of medication and monthly psychotherapy which continues at the 
 
         present time.
 
         
 
              Claimant and his wife testified that claimant still suffers 
 
         from severe asthma and must take an extensive amount of 
 
         medication daily for not only the asthma but his depression 
 
         condition.  Dr. Nissen stated that claimant's martial 
 
         difficulties were in part caused by the work injury and they have 
 
         improved since claimant's wifes participation in the therapy 
 
         program which developed, for her, a better understanding of 
 
         claimant's problems.  Claimant continues under the care of Dr. 
 
         Kaplan at the present time and he has not seen Dr. Gillilland 
 
         since March of 1983.
 
         
 
              Claimant's current job at Deere consists of driving other 
 
         employees around in the plant yard and jumping dead batteries to 
 
         start equipment and vehicles.  In the wintertime, claimant said 
 
         that he is given various "makework" jobs.
 
         
 
              On October, 1983, on the basis of his negative skin tests, 
 
         Dr. Gillilland felt that claimant's asthma was aggravated but not 
 
         caused by paint fumes or polyurethane exposure at work.  
 
         According to Dr. Kaplan, claimant was not tested for his 
 
         sensitivity to chemicals in the work place as no such test is 
 
         available.  However, Dr. Kaplan clearly disagrees with Dr. 
 
         Gillilland.  Dr. Kaplan opines that diagnoses of conditions 
 
         similar to the asthmatic condition that claimant suffers from is 
 
         generally accomplished by history.  From the history presented by 
 
         claimant, Dr. Kaplan has concluded that claimant's asthma was 
 
         more likely than not caused by repeated exposures to paint 
 
         products while working at Deere and that the most likely 
 
         causative agent was a substance called isocyanate which the 
 
         doctor stated is a component of polyurethane and most paint 
 
         products generally.  From labels and documents furnished by 
 
         claimant, Dr. Kaplan was of the opinion that isocyanates were 
 
         actually physically located in the products regularly used by 
 
         claimant.  Claimant testified that he used Imron paints; a 
 
         polyurethane hardner or activator; and, a solvent known as 
 
         Toluene or TDI in his job.  All of these substances contain 
 
         isocyanates according to the material safety data sheets 
 
         published by the Department of Labor furnished to claimant by 
 
         defendant in the discovery process.  The safety director at Deere 
 
         testified that claimant was not exposed to any Imron paints.  She 
 
         explained that she arrived at this conclusion after review of 
 
         customer order records as such paints are only used upon special 
 
         order from a customer.  Finally, as explained in his deposition, 
 
         the precise causative agent at the work place was not important 
 
         to Dr. Kaplan's causal connection analysis as he felt that the 
 
         paint fumes generally were the cause of claimant's asthma.  
 
         Claimant testified in rebuttal testimony that he was regularly 
 
         exposed on a daily basis to the polyurethane hardner containing 
 
         the isocyanates.
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   5
 
         
 
         
 
         
 
              Claimant stated at the hearing that he is 33 years of age 
 
         and has a high school education.  Claimant has also attended one 
 
         semester at the University of Northern Iowa and received a B 
 
         average.  Claimant's only work experience outside of Deere has 
 
         been as a milk truck driver and the performance of general labor 
 
         work for another tractor company and for a railroad company.  
 
         These prior jobs only lasted a few weeks.
 
         
 
              Claimant did not demonstrate any effort to look for 
 
         alternative employment but on the other hand defendant has not 
 
         offered any vocational rehabilitation assistance.
 
         
 
              Claimant currently lives on a 60 acre farm which is 
 
         essentially operated by his wife.  This operation involves the 
 
         raising of swine.  Claimant states that nothing growing in nature 
 
         such as hay and grasses bothers his asthmatic condition.  
 
         Claimant said that his job at Deere is not secure and was told by 
 
         Deere management that they want to "get rid of him."  This was 
 
         denied by Deere management personnel testifying at the hearing.  
 
         Although claimant has recently received a layoff notice, he will 
 
         not actually be laid off.  According to Deere management 
 
         testifying at the hearing, the Deere plant is currently being 
 
         downsized in Davenport, Iowa but under the current union contract 
 
         there is a minimum work force provision of 600 persons.  They 
 
         explained that claimant ranks 596 in the overall seniority list.  
 
         Therefore, Deere management states that claimant cannot be laid 
 
         off as long as there is work available within the restrictions.  
 
         Claimants employment record indicates that claimant's employment 
 
         has been interrupted by numerous general layoffs and plant 
 
         closings over the last few years.
 
         
 
              Claimant's appearance and demeanor at the hearing indicate 
 
         that he was testifying in a candid and truthful manner.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from a work activity over a period of time.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The McKeever court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employer from 
 
         continuing to work.  This date was then utilized in determining 
 
         rate and the timeliness of the claim under Iowa Code sections 
 
         85.26 and the notice provisions of Iowa Code section 85.23.  By 
 
         adopting this rule, Iowa joins the majority of other states by 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   6
 
         
 
         
 
         placing full liability upon the insurance carrier covering the 
 
         risk at the time of the most recent injury that bears a causal 
 
         relation to the disability.  This method of assessing the 
 
         liability is similar to the last injurous exposure rule 
 
         previously adopted by the court for occupational diseases in 
 
         Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984).
 
         
 
              In this case, claimant plead in his petition an asthmatic 
 
         condition caused by exposure to paint fumes at work.  Normally 
 
         such facts would give rise to a claim of occupational disease 
 
         under Iowa Code Chapter 85A rather than an injury under Chapter 
 
         85.  However, claimant has not plead an occupational disease in 
 
         his petition.  An issue of the existence of an occupational 
 
         disease rather than an injury was not plead or raised at the last 
 
         prehearing conference and no issue of occupational disease was 
 
         identified as an issue in the prehearing assignment order.  
 
         Consequently, this hearing deputy has no jurisdiction to find an 
 
         occupational disease in this case as the industrial commissioner 
 
         has directed that only issues identified in the prehearing 
 
         assignment order can be heard by his deputies.  Therefore, given 
 
         our procedural rules, to prevail claimant must show that his 
 
         exposure to harmful paint fumes and the resulting asthma was a 
 
         work injury under Chapter 85 rather than an occupational 
 
         disease.
 
         
 
              Iowa Workers' Compensation Law distinguishes between work 
 
         injuries and occupational diseases.  Iowa Code section 85A.8 
 
         states as follows:
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   7
 
         
 
         
 
         
 
              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, 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, 
 
              these harmful conditions must be more prevalent in the 
 
              employment concerned than in everyday life or in other 
 
              occupations.
 
         
 
              Professor Larson in his renown treatise states as follows 
 
         with reference to the definition of occupational diseases:
 
         
 
              Jurisdictions having general coverage of occupational 
 
              disease now usually define the term to include any 
 
              disease arising out of exposure to harmful conditions 
 
              of the employment, when those conditions are present in 
 
              a peculiar or increased degree by comparison with 
 
              employment generally.  Thus, even a disease which is 
 
              rare and which is due to the claimant's individual 
 
              allergy or weakness combining with employment 
 
              conditions will usually be held to be an occupational 
 
              disease it the increased exposure occasioned by 
 
              employment in fact brought on the disease.
 
              Larson's Workmen's Compensation Law, IB, Section 41.00, 
 
              page 7-353.
 
         
 
              Occupational diseases naturally incident to employment as 
 
         compared to those caused or aggravated by injury have long been 
 
         excludes from the Iowa definition of a compensable injury.  Iowa 
 
         Code section 85.61.  The occupational disease law, Chapter 85A, 
 
         enacted in 1947 was generally viewed at the time as a 
 
         liberalization or expansion of the compensability of diseases.  
 
         In other words, it was generally viewed to include diseases not 
 
         formally compensable under Chapter 85.  Prior to 1947 and the 
 
         enactment of Chapter 85A, diseases were only compensable by 
 
         virtue of certain holdings of the Iowa Supreme Court which 
 
         expanded the term injury to include diseases caused by negligent 
 
         activity of the employer.  The court felt that only occupational 
 
         diseases or those diseases incident to employment were excluded 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   8
 
         
 
         
 
         from Chapter 85.  If it were shown to the court by a potential 
 
         claimant that he suffers from a disease which was the result of 
 
         an employer's negligence or failure to provide a safe place to 
 
         work or to comply with statutory or regulatory safety 
 
         requirements, the disease caused by such a failure would be 
 
         viewed by the court as not a usual or ordinary event in the work 
 
         place.  The Court would hold that such diseases or conditions of 
 
         ill health are not incident to employment and do not constitute 
 
         occupational diseases.  Consequently, the Court found such 
 
         diseases as compensable under Chapter 85 and awarded benefits 
 
         accordingly.  See Black v. Creston Auto Co., 225 Iowa 671, 281 
 
         N.W. 189 (1938); Dille v. Plainview Coal Co., 217 Iowa 827, 250 
 
         N.W. 607 (1933); see also a law review note, "Occupational 
 
         Disease-Legislation..." 34 Iowa Law Review, 510 (1949).  It 
 
         claimant is to prevail, claimant's disease must fall within the 
 
         guidelines of the Black and Dille decisions.
 
         
 
              In the case sub judice, it is found that claimant's asthma 
 
         was the result of his exposure to chemical fumes at Deere while 
 
         working as a touch up painter. The views of Dr. Kaplan are given 
 
         greater weight in this decision.  Dr. Kaplan is clearly a well 
 
         qualities specialist in the field of lung diseases.  Although the 
 
         views of the allergist, Dr. Gillilland, were important, they were 
 
         unclear.  He arrives at the conclusion that claimant's asthma was 
 
         intrinsic and not caused by claimant's employment from the 
 
         results of a negative skin test.  However, Dr. Kaplan says that 
 
         Dr. Gillilland did not test for sensitivity to any of the 
 
         substances claimant was exposed to at Deere.  Also, no deposition 
 
         testimony was taken from Dr. Gillilland to explain his views.  In 
 
         light of Dr. Kaplan's full and complete explanation of his views 
 
         and the consistency of those views with the credible testimony of 
 
         claimant as to the history, Dr. Gillilland's views were overall 
 
         not as convincing as Dr. Kaplan's.
 
         
 
              With reference to the issue of whether claimant's asthma is 
 
         an injury or an occupational disease, the U.S. Department of 
 
         Labor Material Safety Data Sheets were submitted into the 
 
         evidence concerning the industrial use of polyurethane Imron 
 
         paints and activators and Toluene solvents.  According to these 
 
         data sheets, there should have been a general avoidance of 
 
         breathing the vapors and if contaminates cannot be controlled, 
 
         use of a self-contained respirator was advised.  Claimant 
 
         testified that spray painters in the paint booth were requires to 
 
         wear protective equipment.  Claimant was required to work near 
 
         this booth at all times and actually was required to enter the 
 
         booth on occasion to secure paint for his touch up activity.  
 
         Claimant testified that his foreman advised him that his job did 
 
         not require the use of protective equipment.  Claimant testified 
 
         that he could visibly see and smell paint in the air and blew 
 
         paint from his nose on a regular basis.  All of this testimony is 
 
         uncontroverted.  Therefore, claimant's industrial asthma is not 
 
         incident to his employment because it was the result of an 
 
         usually unsafe condition not ordinarily found in the work place.  
 
         Deere simply violated its duty to provide claimant with a safe 
 
         place to work.  Consequently, claimant's asthma condition was not 
 
         incident to his employment and does not constitute an 
 
         occupational disease.  This disease falls within the covered 
 
         diseases under the holdings in Black and Dille set forth above.  
 
         Therefore, claimant has shown by a preponderance of the evidence 
 
         an injury which arose out of and in the course of his employment 
 
         at Deere.
 
         
 
              Concerning the time of the injury, claimant has alleged a 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE   9
 
         
 
         
 
         date in the petition of March 4, 1983.  This is approximately the 
 
         time he left work to receive treatment for his condition.  Using 
 
         this date for the date of injury appears to be consistent with 
 
         the holding in McKeever cited above.
 
         
 
              II.  Defendant has raised the issue of lack of notice of the 
 
         work injury within the 90 days from the date of the occurrence of 
 
         the injury under Iowa Code section 85.23.  Lack of such notice is 
 
         an affirmative defense.  DeLong v. Highway Commission, 229 Iowa 
 
         700, 295 N.W. 91 (1940).  In Reddick v. Grand Union Tea Co., 230 
 
         Iowa 108, 296 N.W. 800 (1941), the Iowa Supreme Court has ruled 
 
         that once claimant sustains the burden of showing that an injury 
 
         arose out of and in the course of employment, claimant prevails 
 
         unless defendant can prove by a preponderance of the evidence an 
 
         affirmative defense.  Although an employer may have actual 
 
         knowledge of an injury, the actual knowledge requirement under 
 
         Iowa Code section 85.23 is not satisfied unless the employer has 
 
         the information putting him on notice that the injury may be work 
 
         related.  Robinson v. Department of Transp., 296 N.W.2d 809, 811 
 
         (Iowa 1980).  An employee may provide information to an employer 
 
         at the time of the injury which would satisfy the actual notice 
 
         requirement under Iowa Code section 85.23 without nullifying its 
 
         right to benefits under the discovery rule.  Dillinger v. City of 
 
         Sioux City, 368 N.W.2d 176, 180 (Iowa 1985).  The purpose of the 
 
         notice requirement is to alert the employer to the possibility of 
 
         a claim so that an investigation may be made while the 
 
         information is fresh.  Id.
 
         
 
              In the case sub judice, Dr. Gillilland sent Deere management 
 
         a "disability notice" in early March, 1983 which states 
 
         "Intrinsic Asthma ?related to occupation."  Also, Burke from the 
 
         personnel department testified that he received a phone call from 
 
         Dr. Kaplan on May 18, 1983 as to the possibility that claimant's 
 
         asthma reaction was due to paint fumes at work.  Given the date 
 
         of injury arrived at in the discussion above, defendant has 
 
         failed to show that they were not put on notice as to the 
 
         possibility of this claim within the 90 day statutory period 
 
         following the injury date.
 
         
 
              III.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden, 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              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 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE  10
 
         
 
         
 
         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 at bar, Dr. Kaplan has opined that claimant's 
 
         asthmatic condition and the work restrictions he has imposed are 
 
         permanent and results in a functional impairment of 10 to 15 
 
         percent of the body as a whole even though claimant is taking 
 
         medication.  Although Dr. Kaplan used no published medical 
 
         guidelines to arrive at this rating, the rating is 
 
         uncontroverted.  The opinions of doctors in the rating process 
 
         are recognized by this agency.  See Division of Industrial 
 
         Services Rule 343-2.1.
 
         
 
              IV.  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 or 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 
 
         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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         26, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE  11
 
         
 
         
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  Claimant was able to fully perform strenuous 
 
         activity in any environment.  According to Dr. Kaplan, the 
 
         claimant will not be able to work in any environment which has 
 
         even minute quantities of painting chemicals and will have to 
 
         ingest large quantities of medication including steroids for an 
 
         indefinite period in the future which probably constitutes the 
 
         rest of his life.
 
         
 
              Claimant's medical condition prevents him from returning to 
 
         his former work or any other work which requires claimant to be 
 
         within the manufacturing plant or to be outside in the cold 
 
         weather.  Claimant has returned to work and is earning more on an 
 
         hourly basis than he earned at the time of the work injury.  
 
         However, he has lost the ability to receive incentive pay.  A 
 
         showing that claimant has only a small or no loss of actual 
 
         earnings does not preclude a finding of industrial disability.  
 
         See Michael v. Harrison County, Thirty-Fourth Biennial Reports 
 
         of the Iowa Industrial Commissioner 218, 220 (Appeal Decision 
 
         1979).  Claimant's current driver job appears to be a makeshift 
 
         type of employment to simply accommodate a return to work in some 
 
         capacity.  In the winter months claimant has little to do.  
 
         Although Deere management should be congratulated as to these 
 
         efforts to accommodate for claimant's disability, this fact 
 
         should not prevent a full compensation of claimant's disability.  
 
         The future of claimant's current job, especially in a volatile 
 
         industry such as Deere is bleak.  Even without any disability, 
 
         claimant has been laid off from Deere in the past on several 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE  12
 
         
 
         
 
         times due to unstable economic conditions.  Consequently, 
 
         although claimant's current job appears to be suitable, the job 
 
         is unstable.  Claimant's position at Deere is solely dependent 
 
         upon Deere's willingness to make considerable accommodations for 
 
         his disability and the continuation of a current union contract 
 
         which maintains a minimum work force level at the Davenport 
 
         Works.  Both of these events appear unlikely to continue in the 
 
         future.
 
         
 
              Claimant is 33 years of age and should be in the prime of 
 
         his working life.  His loss of earning capacity from his 
 
         disability is greater than would be experienced by a younger or 
 
         an older individual.
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at the hearing, little was shown as to 
 
         indicate claimant's potential for vocational rehabilitation.  
 
         Claimant has attended one semester of college but it would be 
 
         improper at this time to speculate as to the success of any 
 
         future attempt to return to college.  See Stewart v. Crouse 
 
         Cartage Company, Appeal Decision filed February 20, 1987.
 
         
 
              Although a disability assessment was received from a 
 
         vocational consultant in this case, his disability rating was not 
 
         helpful to the analysis of this case.  This consultant did not 
 
         base his opinions upon objective testing and he does not base his 
 
         employment assessment on any facts which would be relevant to the 
 
         actual availability of the jobs listed in his evaluation.  
 
         Consequently, little weight was given to this vocational 
 
         assessment.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 40 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 200 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 40 percent of 500 weeks, the maximum 
 
         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 from the date of 
 
         injury until he returns to work.  The medical evidence shows that 
 
         claimant was off work during the periods of time stipulated in 
 
         the prehearing report due to his work related asthmatic 
 
         condition.  Therefore, healing period benefits will be awarded 
 
         accordingly.
 
         
 
              V.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of the expenses incurred as a result of the 
 
         work injury.  However, claimant is entitled to an order of 
 
         reimbursement only for those expenses which he has previously 
 
         paid.  Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  According to 
 
         the prehearing report, the parties stipulated as to the 
 
         reasonablenss of the listed expenses and to their causal  
 
         connection to the asthmatic condition.  Therefore, in light of 
 
         this stipulation and the above finding of a work relatedness of 
 
         this asthmatic condition, claimant is entitled to the payment of 
 
         these expenses.  Claimant indicated in the prehearing report that 
 
         the listed expenses were actually paid by him and therefore 
 
         claimant is entitled to reimbursement as well.
 
         
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE  13
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On or about March 4, 1983 claimant suffered an injury to 
 
         the lungs from exposure to chemicals in the work place which 
 
         arose out of and in the course of his employment with Deere.  
 
         This injury lead to chronic steroid dependent asthma.  The injury 
 
         was not incident to his employment as Deere tailed to provide 
 
         claimant with a safe place to work.
 
         
 
              2.  Deere had actual knowledge of the possibility of his 
 
         workers' compensation claim within 90 days following the March 4, 
 
         1983 injury.  They received a disability notice in March, 1983 
 
         and a phone call from a physician in May, 1983 which notified 
 
         Deere that claimant's asthma may be work related.
 
         
 
              3.  The work injury of March 4, 1983 was a cause of a period 
 
         of total disability from the period of time stipulated in 
 
         paragraph 4 of the prehearing report.
 
         
 
              4.  The work injury of March 4, 1983 was a cause of a 10 to 
 
         15 percent permanent partial impairment to the body as a whole.
 
         
 
              5.  The work injury of March 4, 1983 and the resulting 
 
         permanent partial impairment was a cause of a 40 percent loss of 
 
         earning capacity.  Claimant is 33 years of age and,has a high 
 
         school education with one semester of college.  Due to the work 
 
         injury, claimant has physician imposed permanent restrictions 
 
         upon claimant's employment activity consisting of no exposure to 
 
         temperatures below 20 degrees Fahrenheit; no exposure to dust 
 
         particles found in paint fumes or chemical fumes of any type; and 
 
         no excessive or heavy strenuous work until claimant's body 
 
         condition improves, if at all.  Due to these restrictions 
 
         claimant is unable to return to the job he held at the time of 
 
         the work injury or any other work he has held in the past.  
 
         However, claimant has returned to work due to considerable 
 
         accommodations made by Deere and his current job is suitable for 
 
         his limitations.  However, claimant's work as a driver for other 
 
         employees is a makeshift job and his continued employment at 
 
         Deere is unstable due to the nature of the job and the 
 
         instability of Deere's general work force due to volatile 
 
         economic factors.
 
         
 
              6.  The medical expenses listed in the prehearing report 
 
         were incurred and paid by claimant for reasonable and necessary 
 
         treatment of his work injury of March 4, 1983.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant is entitled under law to permanent partial 
 
         disability, healing period and medical benefits as awarded 
 
         herein.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred sixty-seven and 72/100 dollars ($267.72) per week 
 
         beginning July 11, 1983.
 
         
 
              2.  Defendant shall pay to claimant healing period benefits 
 
         from March 1, 1983 through July 10, 1983 at the rate of two 
 

 
         
 
         
 
         
 
         McANDREW V. DEERE & COMPANY
 
         PAGE  14
 
         
 
         
 
         hundred sixty-seven and 72/100 dollars ($267.72) per week.
 
         
 
              3.  Defendant shall pay to claimant the medical expenses 
 
         listed in the prehearing report which total one thousand two 
 
         hundred fifty-six and no/100 dollars ($1,256.00).
 
         
 
              4.  Defendant shall pay claimant accrued weekly benefits in 
 
         a lump sum and shall receive credit against this award for 
 
         benefits previously paid.
 
         
 
              5.  Defendant shall receive credit in the amount stipulated 
 
         in the prehearing report for previous payments of benefits under 
 
         a non-occupational group insurance plan pursuant to Iowa Code 
 
         section 85.38(2).
 
         
 
              6.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              7.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              8.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services 343-3.1.
 
         
 
              Signed and filed this 14th day of September, 1988.
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. John Carlin
 
         Mr. J. Hobart Darbyshire
 
         Attorneys at Law
 
         1000 First Bank Center
 
         Davenport, Iowa 52801
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS McANDREW,              :   File Nos. 936569 & 735429
 
                                          :
 
                 Claimant,                :     A R B I T R A T I O N
 
                                          :
 
            vs.                           :             A N D
 
                                          :
 
            DEERE & CO., DAVENPORT WORKS, :         R E V I E W -
 
                                          :
 
                 Employer,                :       R E O P E N I N G
 
                 Self-Insured,            :
 
                 Defendant.               :        D E C I S I O N
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            McAndrew, claimant, against Deere & Co., Davenport Works, 
 
            selfinsured employer, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an alleged injury 
 
            sustained on April 28, 1988.  This case was heard in 
 
            conjunction with claimant's petition for review-reopening of 
 
            an arbitration decision dated September 14, 1988.  These 
 
            matters came on for hearing before the undersigned deputy 
 
            industrial commissioner on September 25, 1991, in Davenport, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            testimony from claimant and his wife and employer's witness, 
 
            Patrick J. Crippes.  The record also consists of joint 
 
            exhibits 1 through 8.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            September 25, 1991, the parties have submitted the following 
 
            issues for resolution:
 
            
 
                 1.  In File No. 735429 the issue to be determined is 
 
            whether claimant has suffered a change in condition since 
 
            the prior award which is causally connected to his original 
 
            injury on March 4, 1983, warranting an increase of 
 
            compensation.
 
            
 
                 2.  In File No. 936569 the issues to be determined are 
 
            whether claimant sustained an injury on April 28, 1988, 
 
            which arose out of and in the course of employment with 
 
            employer; whether such injury is a cause of temporary and 
 
            permanent disability; the extent of entitlement to temporary 
 
            and total disability if defendant is liable for the injury; 
 
            and whether claimant gave employer proper notice of the 
 
            injury pursuant to Iowa Code section 85.23.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on February 21, 1955, and completed 
 
            the twelfth grade of school.  He married his wife Angela in 
 
            1981 and they have three minor children.  Claimant has 
 
            worked for John Deere Company since October 1973.  He held 
 
            various jobs over the years and at the time of his 1983 
 
            injury he worked as a touch up painter.  As a result of 
 
            frequent exposure to paint and solvent fumes, claimant 
 
            developed a severe asthmatic condition.  In March 1984, 
 
            claimant first came under the care of William Nissen, M.D., 
 
            psychiatrist, due to symptoms of irritability, anger, loss 
 
            of sleep, diminished appetite, marital difficulties, anxiety 
 
            and suicidal ideation.  Dr. Nissen diagnosed claimant as 
 
            suffering from depression and anxiety due to side effects 
 
            from taking steroids and from stress caused by his asthmatic 
 
            condition.  Claimant was off work from March 1, 1983 through 
 
            July 10, 1983.  He returned to work with employer on July 
 
            11, 1983 as an outside trucker.  In April 1984, he procured 
 
            a job as a jeep driver and worked in that capacity until he 
 
            quit on April 28, 1988.  During the four year period from 
 
            July 1983 through April 1988, claimant missed no work due to 
 
            physical or mental illness.
 
            
 
                 At the hearing, claimant testified that no particular 
 
            incident at work precipitated his leaving Deere on April 28, 
 
            1988, only that he could not take it anymore.  He testified 
 
            that he felt the company was out to get him and they 
 
            deliberately put him in situations where he would be sprayed 
 
            with paint thus aggravating his asthmatic condition.  He 
 
            filed OSHA complaints against the company because of 
 
            perceived safety violations.
 
            
 
                 Since April 28, 1988, claimant's source of income is 
 
            disability compensation from the company and social security 
 
            disability benefits.  Claimant alleged, without being 
 
            specific, that the stress he encountered at work was in 
 
            excess of ordinary work stresses found in the usual course 
 
            of employment.
 
            
 
                 Angela McAndrew, claimant's wife, also testified at the 
 
            hearing.  She stated that the family lives on a 60 acre farm 
 
            for which she has the primary responsibility.  She advised 
 
            claimant in 1984 to seek professional psychiatric 
 
            counseling.
 
            
 
                 Patrick J. Crippes, safety director at Deere from April 
 
            1975 through June 1988, testified at the hearing.  He 
 
            refuted claimant's testimony and stated that all painting of 
 
            machinery is done in an enclosed area with state of the art 
 
            equipment.  He denied claimant's assertions that he was 
 
            exposed to spray paint three times a week.  He also denied a 
 
            company vendetta to harass and ultimately get rid of 
 
            claimant.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was treated by Joseph Kaplan, M.D., pulmonologist, 
 
            for his asthmatic problems.  On March 19, 1984, Dr. Kaplan 
 
            referred claimant to William M. Nissen, M.D., psychiatrist, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            because he had become irritable, angry, insomniac, anxious 
 
            and apprehensive and he wanted to prescribe additional 
 
            medication.  On August 10, 1984, Dr. Nissen reported as 
 
            follows:
 
            
 
                 The symptoms Mr. McAndrew's [sic] described are 
 
                 all reported as side affects for the medication 
 
                 that he currently takes to control his asthmatic 
 
                 condition.  Mr. McAndrew is in the unfortunate 
 
                 position of being basically unable to breathe 
 
                 unless he takes the medications prescribed by Dr. 
 
                 Kaplan, but when he takes the medication suffers 
 
                 from the side affects [sic] of irritability, 
 
                 depression, nervousness, difficulty getting along 
 
                 with people, etc.
 
            
 
            (Exhibit 5, page 1)
 
            
 
                 Dr. Nissen also reported on August 10, 1984, that in 
 
            addition to having problems with side effects from his 
 
            asthmatic medication, the disease itself has caused him 
 
            significant depression.  Dr. Nissen explained:
 
            
 
                 He has developed a life threatening, permanent 
 
                 physical illness that has changed his energy 
 
                 level, his ability to work, and consequently his 
 
                 perception of himself as a man, as a functioning 
 
                 human being, and as a contributing member to 
 
                 society and family man.  He feels very much now 
 
                 that he has become "handicapped", and is very 
 
                 resentful of the circumstances that surrounded his 
 
                 developing this illness-i.e. exposure to toxic 
 
                 chemicals under circumstances that he feels were 
 
                 very adverse....
 
            
 
            (Ex. 5, p. 2)
 
            
 
                 The record also contains a partial letter dated 
 
            February 23, 1987, sent by Dr. Nissen to Mr. Darbyshire, 
 
            claimant's attorney, which states in part:
 
            
 
                 Mr. McAndrew's diagnoses continue to be 
 
                 depression, generalized anxiety, secondary to 
 
                 medications for asthma and asthma (probably 
 
                 secondary to toxic exposure).  In addition, I 
 
                 believe that Mr. McAndrew fits many of the 
 
                 criteria for a posttraumatic stress disorder of 
 
                 the chronic variety, which is a new diagnosis 
 
                 since my last report.
 
            
 
                     ...
 
            
 
                 The prognosis for Mr. McAndrew continues to be 
 
                 guarded.  As we have worked together, it is clear 
 
                 that symptoms of depression and anxiety continue 
 
                 to remain prominent as a result of the fact that 
 
                 he feels permanently impaired secondary to his 
 
                 asthma, which was produced from exposure to toxins 
 
                 at the plant and his anger over this is 
 
                 considerable.  Because he still has to work at 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 that facility, he still finds continued problems 
 
                 with safety violations and no acknowledgement from 
 
                 Deere of their responsibility in causing his 
 
                 disability, this continues to be a major source of 
 
                 stress and irritation for him....
 
            
 
            (Ex. 5)
 
            
 
                 The record contains another letter written by Dr. 
 
            Nissen to Mr. Darbyshire dated April 27, 1989.  He noted 
 
            that he sees claimant once every three to four weeks and 
 
            claimant continues to suffer from depression and generalized 
 
            anxiety related to his asthmatic medication.  Because of 
 
            claimant's numerous problems, marital conflict developed and 
 
            his wife began accompanying him to counseling sessions in 
 
            May of 1987 (Ex. 5).
 
            
 
                 Dr. Nissen testified in a deposition taken on August 
 
            12, 1991.  He stated that he first saw claimant as a 
 
            referral from Dr. Kaplan after claimant had manifested signs 
 
            of nervousness, depression and irritability.  These were 
 
            thought to be the side effects from his asthma medication.  
 
            Despite a change in medical regimen, claimant's anxiety and 
 
            depression persisted because, according to Dr. Nissen:
 
            
 
                    A.  Dennis very much personalized getting 
 
                 asthma.  He, according to Dr. Kaplan, got asthma 
 
                 as a direct result of exposure to chemicals in the 
 
                 work place, namely isocyanates which are part of 
 
                 the paint used to paint industrial tractors and 
 
                 equipment.  Dennis felt that that was a direct 
 
                 attack on him by John Deere because of failure to 
 
                 follow safety regulations and whatnot, and from 
 
                 then on Dennis was very angry at the company.  And 
 
                 whenever any kind of breach of safety requirements 
 
                 was found by him or that he found out from other 
 
                 people, he very much personalized those and felt 
 
                 very fearful for his safety.  He had several 
 
                 documented things where he found people violating 
 
                 painting requirements where the filtering systems 
 
                 of the company were not up to par.  I believe he 
 
                 was even involved in having OSHA come in and 
 
                 examine some of the things going on, but Dennis' 
 
                 anger at the company has continued unabated for 
 
                 the past eight years since I've worked with him.
 
            
 
            (Ex. 3, p. 10, line 25 to p. 11, lines 1-19)
 
            
 
                 Dr. Nissen further testified that claimant has never 
 
            been hospitalized or committed because he was never at the 
 
            point where he was actually suicidal or homicidal (Ex. 3, p. 
 
            18).  He reported that he testified at a previous workers' 
 
            compensation hearing that the type of medication claimant 
 
            must continue to take for his asthma will perpetuate his 
 
            symptoms (Ex. 3, p. 20, ll. 11-17).
 
            
 
                 Dr. Nissen stated that claimant's problems are 
 
            well-documented and have been ongoing for the past eight 
 
            years.  They include:  distractibility; an inability to 
 
            focus attention on a concentrated basis for eight hours; 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            continued anger; rumination about his physical condition; 
 
            and fear that he is going to harm his family (Ex. 3, pp. 
 
            26-27).
 
            
 
                 Dr. Nissen commented that claimant is house-bound and 
 
            engages in limited activities because he is on disability 
 
            for his asthma and fearful that people would report him if 
 
            he did anything outside of the home.  Dr. Nissen attributed 
 
            this to claimant's post-traumatic stress syndrome (Ex. 3, p. 
 
            31).
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787; 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consolidated Ind. Coal Co., 228 
 
            Iowa 1031, 291 N.W. 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 The required change of condition to satisfy the 
 
            requirements of review-reopening need not rest solely upon a 
 
            change of physical condition if economic hardships causally 
 
            related to a compensable injury but not contemplated within 
 
            the initial award or agreement are demonstrated.  An 
 
            increase in industrial disability may occur without a change 
 
            in physical condition.  A change in earning capacity 
 
            (subsequent to the original award) which is proximately 
 
            caused by the original injury also constitutes a change in 
 
            condition.  Blacksmith, 290 N.W.2d 348 (Iowa 1980); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            The question thus secondarily becomes whether or not 
 
            claimant's industrial disability has changed.
 
            
 
                 In his review-reopening petition filed on April 26, 
 
            1990, claimant seeks additional workers' compensation 
 
            benefits.  In an arbitration decision dated September 14, 
 
            1988, claimant was awarded 40 percent industrial disability 
 
            based upon a work- related injury on March 4, 1988.  
 
            Claimant bears the burden of showing that a change of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            condition has occurred since the prior award justifying an 
 
            increase of compensation.  There must be substantial 
 
            evidence of a worsening of the condition not contemplated at 
 
            the time of the first award or a failure of claimant's 
 
            condition to improve to the extent initially anticipated.  
 
            Claimant must also show that the condition he now seeks 
 
            benefits for is causally connected to his original injury of 
 
            March 4, 1983.  As a general rule, a claimant may not 
 
            introduce evidence of injuries, existing at the time of a 
 
            previous award, for the first time on review to claim 
 
            additional benefits.  Gosek v. Garmer & Stiles Co., 158 
 
            N.W.2d 731, 732 (Iowa 1968).
 
            
 
                 Claimant contends that his mental condition was not 
 
            taken into consideration when he was initially awarded 
 
            workers' compensation benefits.  Deputy Walshire states in 
 
            his decision that:
 
            
 
                 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 conclu
 
                 sions, if any, in the following summary should be 
 
                 considered as preliminary findings of fact.
 
            
 
                 Evidence specifically referred to in the Summary of the 
 
            Evidence section of the decision includes the following 
 
            paragraph:
 
            
 
                 In March, 1984 claimant was referred by Dr. Kaplan 
 
                 to a psychiatrist, William Nissen, M.D., for 
 
                 symptoms of irritability, anger, loss of sleep, 
 
                 appetite and marital difficulties, anxiety and 
 
                 suicidal ideation.  According to Dr. Nissen, 
 
                 claimant suffers from depression and anxiety due 
 
                 to the side effects from taking steriods [sic] and 
 
                 also from stress caused by his asthmatic illness 
 
                 and resulting disability.  Dr. Nissen than began a 
 
                 treatment program of medication and monthly 
 
                 psycotherapy [sic] which continues at the present 
 
                 time.
 
            
 
                 Deputy Walshire, in making his determination as to the 
 
            extent of claimant's industrial disability, took into 
 
            consideration, among other factors, "claimant's 
 
            qualifications intellectually, emotionally and physically."  
 
            After consideration of all of these factors, Deputy Walshire 
 
            awarded claimant a 40 percent loss of earning capacity due 
 
            to his work injury.  Based on this finding, claimant was 
 
            entitled to 200 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 Claimant contends that his condition has substantially 
 
            changed since May 3, 1988.  The medical evidence does not 
 
            support his contention.  Dr. Nissen testified in his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            deposition as follows:
 
            
 
                    Q.  How long prior to April 28th, 1988, had he 
 
                 had those particular problems, the depression, 
 
                 stress, posttraumatic stress disorder?
 
            
 
                    A.  When I first met with him in March of '84, 
 
                 he already had the depression and anxiety, and at 
 
                 that point in looking back probably the 
 
                 posttraumatic stress disorder symptoms were there 
 
                 also, but I did not formally recognize them to 
 
                 make a diagnosis probably till one or two years 
 
                 later.
 
            
 
            (Ex. 3, p. 40, ll. 23-25 to p. 41, ll. 1-6)
 
            
 
                 Therefore, claimant has not shown by a preponderance of 
 
            the evidence a change in his condition, or a worsening of 
 
            his condition not contemplated at the time of the first 
 
            award.  Claimant is no worse today than he was on May 3, 
 
            1988.  In fact one could argue that claimant's condition has 
 
            improved over the years.  He was able to engage in 
 
            substantial gainful work activity from July 1983 through 
 
            April 1988 without taking any time off.  For some reason, 
 
            not clear to the undersigned, claimant, without provocation, 
 
            just quit his job and decided to apply for social security 
 
            disability benefits.
 
            
 
                 Since claimant has not met his burden of proof, he 
 
            takes nothing in File No. 735429.
 
            
 
                 In the alternative, claimant alleges in File No. 936569 
 
            that on April 28, 1988, his mental health had so 
 
            deteriorated that he could no longer work.  He applied for 
 
            Workers' Indemnity (W.I.) on May 3, 1988, alleging 
 
            disability since April 28, 1988, due to mental problems.  
 
            Claimant testified that despite filing for disability 
 
            benefits, he always thought that Dr. Nissen would find some 
 
            medication which would improve his condition and enable him 
 
            to return to work.
 
            
 
                 Claimant has the burden of proof to show by a 
 
            preponderance of the evidence that he incurred a personal 
 
            injury arising out of and in the course of his employment 
 
            with employer on April 28, 1988, which caused a disability 
 
            or that his preexisting mental condition was aggravated, 
 
            accelerated or lighted up by employment activity which 
 
            culminated in his decision to quit work at that time.  In 
 
            this regard, Dr. Nissen testified that on April 28, 1988, 
 
            claimant had a long-standing anger and depression problem as 
 
            well as a post-traumatic stress disorder (Ex. 3, p. 40).  
 
            All of these conditions existed in March of 1984 and 
 
            thereafter.  Despite the same, claimant was able to work, 
 
            without restrictions due to mental problems, from July 1983 
 
            through April 1988.
 
            
 
                 The standard for determining whether a mental injury 
 
            arose out of and in the course of employment was discussed 
 
            in the case of Ohnemus v. John Deere Davenport Works, 
 
            (Appeal Decision filed February 26, 1990).  The industrial 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            commissioner, in that case wrote:
 
            
 
                 In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or a physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                       We have recognized that in both civil and 
 
                    criminal actions causation in fact involves 
 
                    whether a particular event in fact caused 
 
                    certain consequences to occur.  Legal 
 
                    causation presents a question of whether the 
 
                    policy of the law will extend responsibility 
 
                    to those consequences which have in fact 
 
                    been produced by that event.  State v. 
 
                    Marti, 290 N.W.2d 570, 584-85 (Iowa 1980).  
 
                    Causation in fact presents an issue of fact 
 
                    while legal causation presents an issue of 
 
                    law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept. of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                 Dr. Nissen, claimant's treating psychiatrist, states 
 
            that claimant's mental condition is due to his reaction to 
 
            steroid asthmatic medication and his anger, bitterness and 
 
            suspicion toward his employer.  Dr. Nissen testified that 
 
            claimant personalized getting asthma and felt that it was a 
 
            direct attack on him by the company because of their failure 
 
            to follow safety regulations (Ex. 3, p. 11).  Dr. Nissen 
 
            stated that claimant's anger and resentment are part of his 
 
            depression.  Dr. Nissen does establish a causal connection 
 
            between claimant's asthmatic condition and his mental 
 
            impairment.
 
            
 
                 However, not only must claimant prove that his work was 
 
            the factual cause of his mental injury, he must also prove 
 
            that the legal cause of his injury was his work.  In this 
 
            regard, claimant must prove that his mental condition 
 
            "resulted from a situation of greater dimensions than the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            day-to-day mental stresses and tensions which all employees 
 
            must experience."  Swiss Colony v. Department of ICAR, 240 
 
            N.W.2d 128, 130 (Wisc. 1976) and Kostelac v. Feldman's Inc., 
 
            (Appeal Decision filed June 13, 1990, File No. 760401).
 
            
 
                 Based upon the total evidence in this case, claimant 
 
            has not shown that the work stresses placed upon him were of 
 
            greater dimensions than the day-to-day mental stresses which 
 
            all employees must experience.  Certainly, claimant's 
 
            treatment at Deere was benevolent and accommodating.  When 
 
            he returned to work in July 1983, every effort was made to 
 
            give him jobs which would not expose him to spray paint or 
 
            paint fumes.  Claimant worked without incident or time off 
 
            until April 28, 1988, when he perceived that he would be 
 
            exposed to paint vapors after employer hired an outside 
 
            company to work on his building.  It was his perception that 
 
            they had no regard for safety and would eventually get him 
 
            with a good lethal dose.  Claimant quit based on this 
 
            perception or misperception.
 
            
 
                 Claimant also felt that the company had a vendetta 
 
            against him and they were out to kill him.  He was fearful 
 
            of his safety and felt harassed by the company.  Claimant's 
 
            testimony in this regard was contradicted by the plant 
 
            safety director who testified that all painting was done in 
 
            an enclosed area using state of the art equipment.  He also 
 
            stated there was no plant vendetta to get Dennis.
 
            
 
                 Claimant encountered other stresses in his life.  He 
 
            invested money in a 60 acre crop and livestock operation 
 
            which was not making money; his marriage was shaky and his 
 
            wife had threatened divorce; his wife enrolled in school and 
 
            this threatened him; he lost a lawsuit in civil court 
 
            against employer; and he was anxious about his workers' 
 
            compensation claim.  All of these events were stressful and 
 
            contributed to his decision to quit work.
 
            
 
                 Claimant has failed to establish legal causation and 
 
            consequently has failed to prove he sustained an injury on 
 
            April 28, 1988, that arose out of and in the course of his 
 
            employment with employer.
 
            
 
                 This finding is dispositive of all other issues in 
 
            claim number 936569 and claimant takes nothing from this 
 
            proceeding.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Based on the previously stated findings of fact and 
 
            conclusions of law, it is ordered that claimant shall take 
 
            nothing in file number 735429 and 936569, as a result of 
 
            these proceedings.
 
            
 
                 Defendant shall pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
            
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. J. E. Tobey, III
 
            Attorney at Law
 
            601 Brady St
 
            Suite 210-211
 
            Davenport  IA  52801
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport  IA  52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              2200; 2203
 
                                              Filed September 11, 1988
 
                                              LARRY P. WALSHIRE
 
         
 
                     BEFORE THE I0WA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS McANDREW,
 
         
 
              Claimant,
 
                                                 File No. 735429
 
         vs.
 
                                              A R B I T R A T I O N
 
         DEERE & COMPANY,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2200; 2203
 
         
 
              Claimant's claim was based upon an industrial asthma caused 
 
         by paint fumes.  However, no occupational disease issue was plead 
 
         or raised at the time of the prehearing conference.  It was held 
 
         that it claimant was to prevail there would have to be a showing 
 
         of injury under Chapter 85.  It was held, however, under the old 
 
         law from the 1930's developed prior to the current occupational 
 
         disease statute claimant did show a work injury.  This was 
 
         concluded under the rationale of Black v. Creston Auto Co. which 
 
         held that the disease is not occupational if it is the result of 
 
         negligence or failure of the employer to provide a safe place to 
 
         work.  It was found that the defendant employer in this case 
 
         failed to provide claimant with protective equipment to prevent 
 
         him from inhalation of toxic fumes which were worn by other 
 
         employees in the same area.  Therefore, claimant's asthma was not 
 
         incident or normal to his employment.  Claimant was then awarded 
 
         40 percent permanent partial disability for a severely disabling 
 
         asthma condition.  The award was not greater because he is 
 
         currently employed at Deere in a different job which accommodates 
 
         for claimant's limitations.  However, despite the suitability of 
 
         this job, the job appears to be highly unstable.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                        2204; 2905
 
                        Filed October 15, 1991
 
                        JEAN M. INGRASSIA
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DENNIS McANDREW,              :   File Nos. 936569 & 735429
 
                                       :
 
              Claimant,                :     A R B I T R A T I O N
 
                                       :
 
         vs.                           :             A N D
 
                                       :
 
         DEERE & CO., DAVENPORT WORKS, :         R E V I E W -
 
                                       :
 
              Employer,                :       R E O P E N I N G
 
              Self-Insured,            :
 
              Defendant.               :        D E C I S I O N
 
         ___________________________________________________________
 
         
 
         
 
         2905 - Review - Reopening
 
         Claimant contends that his mental condition was not taken into 
 
         account when he was previously awarded industrial disability.  He 
 
         requests additional benefits.
 
         Claimant has burden to show a change of condition related to the 
 
         original injury since the original award was made.  He must 
 
         demonstrate a change in condition (economic, physical or mental) 
 
         not contemplated at the time of the initial award.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d  109 (1957).
 
         In the initial decision, Deputy Walshire awarded claimant 40 
 
         percent industrial disability taking into consideration 
 
         claimant's intellectual, emotional and physical qualifications.  
 
         Claimant, in addition to suffering from steroid dependent asth
 
         matic bronchitis, was depressed, angry and hostile.  He was 
 
         treated by a psychiatric who testified by deposition in the case.  
 
         His assessment of claimant's mental status was discussed and con
 
         sidered when the deputy awarded benefits in 1988.  Claimant has 
 
         been treated by a psychiatrist for depression since 1984.  He 
 
         testified that claimant's mental status has remained stable 
 
         throughout the years.  Therefore, additional benefits denied on 
 
         review-reopening.
 
         
 
         
 
         2204 - Psychological
 
         In the alternative, claimant filed an arbitration claim alleging 
 
         disability due to mental problems since April 1988, when he 
 
         voluntarily quit his job at Deere.  Not only must claimant prove 
 
         that his work was the factual cause of his mental injury, he must 
 
         also prove that the legal cause of his injury was his work.  In 
 
         order to prove this regal causation, claimant must prove that his 
 
         temporary mental condition "resulted from a situation of greater 
 
         dimensions than the day-to-day mental stresses and tensions which 
 
         all employees must experience.  Desgranges v. Dept. of Human 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Services, (Appeal Decision, August 19, 1988); Swiss Colony v. 
 
         Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976) and Ohnemus 
 
         v. John Deere Davenport Works, (Appeal Decision filed February 
 
         26, 1990).
 
         Even if claimant had proved that the work was the factual cause 
 
         of his mental condition, he must also prove it was the legal 
 
         cause.  Claimant has not met his burden of proof.  After being 
 
         off work from April - August 1983, claimant returned to work at 
 
         Deere until April 1988, when he "couldn't take it anymore and 
 
         quit."  Claimant worked for four years without incident.  The 
 
         company accommodated his asthmatic condition by placing him in a 
 
         fume free environment.  Claimant never asked for accommodations 
 
         due to mental problems although he continued to receive therapy 
 
         while he was employed.  However, he lost no time from work due to 
 
         either physical or mental problems.
 
         Claimant perceived that the company was "out to get him" because 
 
         he filed numerous OSHA complaints against them and brought a 
 
         civil suit for gross negligence.  He encountered numerous 
 
         non-work related stresses including financial problems due to a 
 
         farm investment which wasn't making money; marital problems; and 
 
         a failed lawsuit.  He was obsessed with the notion that the 
 
         company had a vendetta against him and after four years of 
 
         frustration quit his job.
 
         Claimant did not prove  "out of ordinary work stresses" and 
 
         therefore cannot recover under Swiss Colony v. Department of 
 
         ICAR, at 132.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELMER E. BILLICK,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 735440
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant benefits for an occupational hearing loss.  Defendants 
 
         were also ordered to provide claimant with bilateral hearing aids 
 
         as prescribed by Louis A. Garcia, M.D., in accordance with 
 
         section 85B.12.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 18.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Defendants state the following issue on appeal:  "Whether or 
 
         not the introduction of new equipment which removes the employee 
 
         from exposure to excessive noise constitutes a 'transfer from 
 
         excessive noise level employment by an employer.OO
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant, a 65 year old, 37 year employee 
 
         of defendant-Lehigh Portland Cement Co. (hereinafter Lehigh), 
 
         alleges an occupational hearing loss from his employment with 
 
         an injury date, based on retirement, of June 1, 1984.
 
              However, evidence indicates that claimant drove a truck 
 

 
         
 
         
 
         
 
         BILLICK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   2
 
         
 
         
 
         from 1957 to 1978 which exposed him to noise levels in excess 
 
         of 90 decibels per eight hour day.  After 1978 claimant drove a 
 
         different type of truck which exposed him to noise levels 
 
         between 85 to 88 decibels per eight hour day.
 
         
 
              Medical testimony indicates that claimant suffered a 
 
         sensorineural hearing loss as early as 1973 and that that 
 
         hearing loss is attributable to noise levels claimant was 
 
         exposed to at work at that time.  Claimant's hearing loss 
 
         increased 5-10 decibels between 1973 and 1982.  Medical 
 
         testimony attributes this increase to the normal progression of 
 
         the earlier hearing loss and not claimant's work.
 
         
 
                                 APPLICABLE LAW
 
         
 
              An occupational hearing loss is a sensorineural one which 
 
         arises out of and in the course of employment due to prolonged 
 
         exposure to excessive noise levels.  Excessive noise levels are 
 
         those which are capable of producing occupational hearing loss.
 
         
 
              The table in section 85B.5 lists times and durations which, 
 
         if met, will be presumptively excessive noise levels requiring 
 
         the employer to inform the employee of the existence of such 
 
         levels.  It is not a minimum exposure level necessary to 
 
         establish excessive noise levels.
 
         
 
                 The Iowa legislature expressed its desire that 
 
              occupational hearing losses be compensable by enacting 
 
              a specific chapter dealing with such losses.  Chapter 
 
              85B is unique among workers' compensation laws.  By 
 
              adopting time and intensity exposure standards, the 
 
              legislature did not seek to rule out hearing losses 
 
              that do not rise to those levels; rather, the 
 
              legislature sought to simplify prior problems of proof 
 
              by recognizing presumptive exposure levels for gradual 
 
              noise-induced hearing loss.  When the tables are not 
 
              implicated, the claimant must prove the loss of hearing 
 
              was due to exposure at work to sound capable of 
 
              producing that loss.  Duration and intensity of 
 
              exposure will be helpful to prove the necessary link 
 
              between noise at work and the hearing loss.  Other 
 
              causes of the hearing loss may be explored by the 
 
              employer or its insurer in defense of the claim.
 
         
 
         Muscatine County v. Morrison,       N.W.2d      (Iowa  1987).
 
         
 
             Iowa Code section 85B.8, 1983 states:
 
         
 
                 A claim for occupational hearing loss due to excessive 
 
              noise levels may be filed six months after separation from 
 
              the employment in which the employee was exposed to 
 
              excessive noise levels.  The date of the injury shall be the 
 
              date of occurrence of any one of the following events:
 

 
         
 
         
 
         
 
         BILLICK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   3
 
         
 
         
 
         
 
                 1.  Transfer from excessive noise level employment by an 
 
              employer.
 
         
 
                 2.  Retirement.
 
         
 
                 3.  Termination of the employer-employee relationship.
 
         
 
                 The date of injury for a layoff which continues for a 
 
              period longer than one year shall be six months after the 
 
              date of the layoff.  However, the date of the injury for any 
 
              loss of hearing incurred prior to January 1, 1981 shall not 
 
              be earlier than the occurrence of any one of the above 
 
              events.
 
         
 
                                     ANALYSIS
 
         
 
              Defendants argue on appeal that claimant was transferred 
 
         from excessive noise employment when he began driving the CAT 777 
 
         trucks which exposed claimant to noise levels below 90 decibels. 
 
          Whether claimant was exposed to noise levels above 90 decibels 
 
         or just below 90 decibels is not critical to the determination of 
 
         transfer from excessive noise level employment.  Excessive noise 
 
         levels are those which are capable of producing a sensorineural 
 
         hearing loss which arises out of and in the course of 
 
         employment.
 
         
 
              The deputy correctly found that claimant's exposure to 
 
         excessive noise levels continued after he began driving the CAT 
 
         777 trucks.
 
         
 
              Since claimant was neither transferred from excessive noise 
 
         level employment by Lehigh when he began driving CAT 777 truck 
 
         nor terminated, the date of claimant's injury is June 1, 1984, 
 
         the date he retired from his employment with Lehigh.
 
         
 
              The medical record establishes that claimant suffered a 
 
         bilateral sensorineural hearing loss and that that hearing loss 
 
         is related to his exposure to excessive noise levels in his work 
 
         driving trucks for Lehigh.  Therefore, claimant is entitled to 
 
         benefits for an occupational hearing loss.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has a bilateral sensorineural hearing loss 
 
         which is the result of exposure to excessive noise to which he 
 
         was subjected through his employment with Lehigh Portland Cement 
 
         Company.
 
         
 
         
 
              2.  For a period of approximately fifteen years prior to 
 
         November 30, 1978 claimant was employed driving a truck which 
 
         exposed him to excessive noise levels under the definition of 
 
         section 85B.4.
 
         
 
              3.  Subsequent to December 1, 1978 claimant drove a truck 
 
         which produced noise levels that were slightly below 90 decibels, 
 
         but was also exposed to noises that exceeded 90 decibels.
 
         
 

 
         
 
         
 
         
 
         BILLICK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   4
 
         
 
         
 
              4.  Most of claimant's hearing loss was present in 1973, but 
 
         there has been an additional loss of approximately five to ten 
 
         decibels between 1973 and 1982.
 
         
 
              5.  Claimant did not transfer from excessive noise level 
 
         employment on December 1, 1978 when he changed trucks.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has sustained an occupational hearing loss as a 
 
         result of exposure to excessive noise in his employment with 
 
         Lehigh Portland Cement Company.
 
         
 
              Claimant's date of injury in this case is June 1, 1984, the 
 
         date of his retirement in accordance with section 85B.8(2).
 
         
 
              Claimant's claim was timely filed in this case in accordance 
 
         with section 85B.8 and section 85.26.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant fifty-three point zero five 
 
         (53.05) weeks of compensation at the rate of two hundred ninety 
 
         and 01/100 dollars ($290.01) per week commencing June 1, 1984, 
 
         said amount representing a thirty point three one two five 
 
         (30.3125) percent occupational hearing loss.
 
         
 
              That the employer provide claimant with bilateral hearing 
 
         aids as prescribed by Louis A. Garcia, M.D., in accordance with 
 
         section 85B.12.
 
         
 
              That defendants pay the entire amount of weekly compensation 
 
         in a lump sum together with interest pursuant to section 85.30 
 
         since the same is now entirely past due and owing.
 
         
 
              That defendants pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              
 
              That defendants file claim activity reports as requested by 
 
         the agency pursuant to Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of July, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                             ACTING INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         BILLICK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   5
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jack C. Paige
 
         Attorney at Law
 
         700 Higley Bldg.
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Jon Stuart Scoles
 
         Mr. C. Bradley Price
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2208
 
                                                 Filed July 28, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ELMER E. BILLICK,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 735440
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2208
 
         
 
              Claimant changed from one truck to another, no transfer from 
 
         excessive noise level employment merely because claimant was 
 
         exposed to noise levels slightly below the minimum set out in 
 
         85B.5. Excessive noise levels are those which are capable of 
 
         producing a sensorineural hearing loss which arises out of and in 
 
         the course of employment. 
 
         See Muscatine County v. Morrison,       N.W. 2d      (Iowa 1987).  
 
         Affirmed.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         VETERANS ADMINISTRATION,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 735517
 
         CHASE MANUFACTURING CO.,
 
                                                   A P P E A L
 
              Employer,
 
                                                   R U L I N G
 
         and
 
         
 
         IOWA KEMPER INSURANCE C0.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a proposed ruling in which it was 
 
         found that the Veterans Administration (VA) has standing to 
 
         maintain a claim for medical services provided to Glenn Palas.
 
         
 
              The VA filed a claim for payment of medical bills.  In 
 
         response, defendants filed a motion to dismiss the VA's claim 
 
         asserting that section 85.26 limits claims for benefits to 
 
         injured employees; that the VA is not a proper party plaintiff; 
 
         and that any dispute between the injured employee, Glenn Palas 
 
         and defendants, has been resolved by compromise settlement under 
 
         section 85.35.
 
         
 
              Defendants and VA have filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Defendants state the following issue on appeal: "Did the 
 
         Deputy Industrial Commissioner err in holding that 85.26(4) does 
 
         not act to preclude a direct action on [by] the Veterans 
 
         Administration to recover for the value of medical services 
 
         provided?"
 
         
 
                               REVIEW OF THE EVIDENCE
 
         
 
              Glenn Palas entered into a compromise settlement under 
 
         section 85.35 with the defendants which was approved by a deputy 
 
         industrial commissioner on February 7, 1986.  The approval of the 
 
         compromise settlement signed by the deputy states that a
 
         
 
         bona-fide dispute existed between Glenn Palas and defendants as 
 
         to whether Mr. Palas sustained a compensable permanent 
 
         disability.  The date of Mr. Palas' alleged injury was June 13, 
 
         1983.
 
         
 

 
              The VA alleges that it has provided Mr. Palas' medical 
 
         treatment value at $2,445.00 and that $353 of that $2,445 has 
 
         been paid.  The defendants have refused to pay the balance of 
 
         $2,092 resulting in this claim by the VA.
 
         
 
                                 APPLICABLE LAW
 
         
 
              "No claim or proceedings for benefits shall be maintained by 
 
         any person other than the injured employee, his or her dependent 
 
         or his or her legal representative if entitled to benefits."
 
         Iowa Code section 85.26(4), 1983.
 
         
 
              The industrial commissioner has interpreted section 85.26(4) 
 
         in Poindexter v. Grant's Carpet Service and Milbank Insurance 
 
         Co., Appeal Ruling, filed August 10, 1984.
 
         
 
                   Appellant is a professional corporation seeking 
 
              payment of medical costs incurred by Brian Poindexter, 
 
              the injured worker.  Appellant contends that Mr. 
 
              Poindexter has executed a valid assignment of his 
 
              workers' compensation medical benefits to the 
 
              corporation, and it thus has an economic interest that 
 
              renders it an indispensable party to the claim.
 
         
 
                   The dispute arises from a petition and 
 
              accompanying application for determination filed by the 
 
              employer and insurance carrier which questioned the 
 
              reasonableness of medical fees which were submitted in 
 
              conjunction with a work injury.  A previously filed 
 
              memorandum of agreement has established an employment 
 
              relationship between Poindexter and Grant's Carpet 
 
              Service, and that the injury arose out of and in the 
 
              course of employment.  The employer's final report 
 
              indicates that healing period and permanent partial 
 
              disability benefits have been paid.
 
         
 
                   It is established law that the claimant has the 
 
              burden of proving his claim for benefits.  By the 
 
              filing of a memorandum of agreement, the injured worker 
 
              is relieved of a showing that the injury was work 
 
              related, but his burden of proving medical costs 
 
              remains.  If the injured employee seeks payment of 
 
              medical benefits and the costs are in dispute, it is 
 
              his responsibility, by statute, to initiate a 
 
              proceeding which gives him the opportunity to prove his 
 
              claim against the employer.  He must show that the 
 
              medical costs are causally related to the work injury 
 
              and that they are reasonable and
 
         
 
         
 
         
 
         
 
              necessary.  No party can make this showing for him, and 
 
              the employer is under no obligation to render payment 
 
              until the worker has sustained his burden.
 
         
 
                   In the instant case, no claim for medical payment 
 
              has been filed by Brian Poindexter.  Review of the 
 
              applicable statutory provisions reveals no statutory 
 
              authority which gives P.S.I. standing to proceed under 
 
              compensation law directly against the employer.  The 
 
              Iowa Supreme Court in Brauer v. J. C.White Concrete 
 
              Co., 253 Iowa 1304, 115 N.W.2d 702 (1962) rule that a 
 
              party who rendered medical or hospital services could 
 
     
 
         
 
         
 
         
 
         
 
         VETERANS ADMINISTRATION V. CHASE MANUFACTURING CO.
 
         Page   3
 
         
 
         
 
              assert a claim therefor before the industrial 
 
              commissioner.  The legislature acted with utmost 
 
              celerity to overturn the holding of the Iowa Supreme 
 
              Court in the Brauer decision in the session of the 
 
              general assembly immediately after the filing of the 
 
              decision.  They enacted: "No claim or proceedings for 
 
              benefits shall be maintained by any person other than 
 
              the injured employee his dependent or his legal 
 
              representative, if entitled to benefits." Acts of the 
 
              Regular Session 60 GA (1963), Chapter 87, 3.
 
         
 
                   This provision remains in the law today in the 
 
              same form (although with gender reference corrected) as 
 
              Code of Iowa section 85.26(4).
 
         
 
                   Although appellant, like any creditor, has a 
 
              financial interest in expediting a determination of 
 
              payment due, such interest does not confer standing to 
 
              participate in an action that has not properly been 
 
              initiated or to attempt to relieve a potential claimant 
 
              of his rightful burden of proof by initiating a 
 
              discovery proceeding against the employer and the 
 
              insurer.  The deputy was correct in finding that P.S.I. 
 
              is not a party to this action and has no standing to 
 
              sue in claimant's name.
 
         
 
                                 ANALYSIS
 
         
 
              In the proposed ruling the deputy stated:
 
         
 
                   The only reasonable construction of the 1963 
 
              amendment to section 85.26 is that it was intended to 
 
              preclude claimants' from assigning their cause of 
 
              action to third parties.  This is consistent with the 
 
              general statute which prohibits attachment or 
 
              garnishment of an employee's workers' compensation 
 
              benefits.  This is also consistent with the general 
 
              rules of statutory construction in section 4.4, The 
 
              Code.  The amendment was not intended to deny a
 
         
 
         
 
         
 
         
 
              real party in interest, in this case a medical 
 
              provider, of an opportunity to be heard on issues 
 
              affecting the substantive rights of that party.
 
         
 
         This interpretation is contrary to the final agency decision in 
 
         Poindexter.  The holding in Poindexter will be followed in this 
 
         case.  Therefore, it is found that the VA has no standing to 
 
         maintain this claim for medical expenses.
 
         
 
              It is also interesting to note that VA seems to argue that 
 
         they are placed in a better position than claimant in bringing an 
 
         action for medical benefits.  In the case at bar the special case 
 
         settlement was approved on February 7, 1986.  Claimant had no 
 
         right to any benefits under the workers' compensation statutes 
 
         after that date.
 
         
 

 
         
 
         
 
         
 
         VETERANS ADMINISTRATION V. CHASE MANUFACTURING CO.
 
         Page   4
 
         
 
         
 
              WHEREFORE, the ruling of the deputy is reversed.
 
         
 
              THEREFORE, it is ordered that the motion to dismiss is 
 
         sustained.
 
         
 
         
 
              Signed and filed this 9th day of September, 1987.
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William J. O'Keefe
 
         Mr. Earl E. Parsons
 
         Staff Attorneys
 
         Veterans Administration
 
         210 Walnut St.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.60 - 2700
 
                                                 Filed September 9, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         VETERANS ADMINISTRATION,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 735517
 
         CHASE MANUFACTURING CO.,
 
                                                   A P P E A L
 
              Employer,
 
                                                   R U L I N G
 
         and
 
         
 
         IOWA KEMPER INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         
 
         1402.60 - 2700
 
         
 
              Veterans Administration brought this proceeding to recover 
 
         payment for medical services provided to Glenn Palas.  Section 
 
         85.26(4) limits claims for benefits to injured employees.  See 
 
         Poindexter v. Grant's Carpet Service and Milbank Insurance Co., 
 
         Appeal Ruling, Filed August 10, 1984.  Reversed.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        KENNETH D. BASCOM,
 
        
 
           Claimant,                     File No. 735545
 
        
 
        vs.                               A P P E A L
 
        
 
        LEONARD FEED & GRAIN, INC.,     D E C I S I O N
 
           Employer,
 
        
 
        and
 
        
 
        GREAT WEST CASUALTY CO.,
 
        
 
           Insurance Carrier,
 
           Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        By order of the industrial commissioner filed April 25, 1988, the 
 
        undersigned deputy industrial commissioner has been appointed 
 
        under the provisions of Iowa Code section 86.3 to issue a final 
 
        agency decision in this matter.
 
        
 
        Claimant appeals and defendants cross-appeal from an arbitration 
 
        decision awarding healing period benefits; permanent partial 
 
        disability benefits for industrial disability of 20 percent; 
 
        medical expenses; and travel expenses.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits 1 through 36, inclusive; 
 
        defendants' exhibits 1 through 4, inclusive; and defendants' 
 
        rebuttal exhibits A, B and C.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are whether the deputy correctly ruled on 
 
        admission of testimony and evidence; the extent of claimant's 
 
        industrial disability; and whether the deputy correctly 
 
        determined healing period benefits.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 2
 
        
 
        
 
        Claimant testified he was injured on May 31, 1983 while unloading 
 
        empty beer bottles and beer kegs at a brewery in Memphis, 
 
        Tennessee when a stack of kegs on pallets fell knocking him to 
 
        the floor, and landing on his back. He returned to Iowa the 
 
        following day and, when he and defendant employer could not agree 
 
        on which doctor he should visit, he saw what was described as a 
 
        "neutral" doctor, Yang Ahn, M.D.
 
        
 
        Dr. Ahn examined claimant on June 1, 1983 and reported that 
 
        claimant sustained a contusion and sprain of the lumbar area and
 
        left leg from a falling keg at work. He took claimant off work
 

 
        
 
 
 
 
 
        and treated him with rest, muscle relaxers, analgesics, and
 
        acupuncture and released him to return to work on June 21, 1983
 
        which claimant did and thereafter made several trips.
 
        
 
        Claimant indicated to defendant employer on August 4, 1983 that 
 
        he was no longer able to drive. When he picked up his paycheck, 
 
        he found a report that he had voluntarily quit his job. On August 
 
        9, 1983, he called Dr. Ahn and reported his back pain was worse. 
 
        Dr. Ahn referred claimant to Earl H. Bickel, M.D., an orthopedic 
 
        surgeon.
 
        
 
        Dr. Bickel saw claimant on August 11, 1983 and reported that his 
 
        clinical impression was degenerative disc disease with acute 
 
        lumbosacral strain. Claimant was hospitalized from August 12, 
 
        1983 to August 20, 1983 and had a discharge diagnosis of chronic 
 
        lumbosacral strain. Claimant returned to see Dr. Bickel September 
 
        21, 1983 and was diagnosed as discogenic disease with possible 
 
        early facet changes and spondylolisthesis at L5-Sl. On October 
 
        27, 1983, Dr. Bickel reiterated his chronic strain diagnosis and 
 
        reported that claimant had probably reached a point of maximum 
 
        recovery.
 
        
 
        Claimant was seen by Warren N. Verdeck, M.D., on December 22, 
 
        1983 who diagnosed claimant as having a low back strain, possible 
 
        radiculopathy on the left side. He did not think he had reached 
 
        maximum recovery and wanted to wait another two to three months.
 
        
 
        Claimant was seen by James R. LaMorgese, M.D., on December 15, 
 
        1983 and his impression was "[c]hronic back pain in the thoracic 
 
        and lumbar regions with intermittent numbness in the left leg 
 
        after work-related injury without major neurologic findings."
 
        
 
        In a letter dated February 10, 1984, Dr. Bickel stated that 
 
        claimant had probably reached his period of maximum recovery and 
 
        doubted whether claimant could return to his job as a trucker. He 
 
        also stated that claimant has a discogenic type of injury with 
 
        soft tissue injury to his back which is the equivalent to 15 
 
        percent permanent partial "disability" of the lumbosacral spine. 
 
        On July 1, 1984, Dr. Bickel admitted claimant to the
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 3
 
        
 
        
 
        hospital for a myelogram and reported his impression of 
 
        discogenic disease with possible early facet changes and 
 
        spondylolisthesis at L-5,S1 with psychosomatic overlay. Dr. 
 
        Bickel described the myelogram as essentially negative and 
 
        claimant was discharged from the hospital on July 4, 1984. 
 
        Claimant thereafter requested additional consultation at the Mayo 
 
        Clinic.
 
        
 
        The records of the Mayo Clinic show that claimant was seen there 
 
        in September, October and November 1984 by W. R. Marsh, M.D., Who 
 
        concurred with Dr. Bickel's diagnosis of L-5 radiculopathy. 
 
        Claimant had exploratory surgery at L5 and L6 spaces on November 
 
        26, 1984 and on December 10, 1984, Dr. Marsh indicated that 
 
        claimant did not feel that his pain symptoms were much improved 
 
        after surgery. Dr. Marsh gave claimant a "disability" rating of 
 
        15-20 percent of the person because of persistent pain and mild 
 
        weakness in the left L5 myotome and thereafter stated that there 
 
        was no question that claimant's permanent partial disability is 
 
        wholly related to the injuries sustained in May 1983 and that the 
 
        period of temporary total disability would be six months from the 
 
        surgery on November 26, 1984. In a letter dated January 3, 1986, 
 
        Dr. Marsh stated it was reasonable to conclude that claimant had 
 

 
        
 
 
 
 
 
        reached maximum medical improvement with regard to his lumbar 
 
        spine.
 
        
 
        Claimant was examined on one occasion by Peter D. Wirtz, M.D., 
 
        who, in a letter dated May 1, 1985, reported his opinion that 
 
        claimant had suffered a lumbosacral strain or musculoskeletal 
 
        strain to the lumbar area, and that "(t)his condition would clear 
 
        over a 6-12 week period of time."
 
        
 
        G. Brian Paprocki, M.S., a vocational consultant retained by 
 
        claimant, opined that claimant had sustained a 70 percent 
 
        industrial disability and would not be able to reenter the labor 
 
        market without vocational assistance. Carma A. Mitchell, M.S., a 
 
        vocational consultant, issued a report stating that claimant as 
 
        employable and listing 14 job titles that claimant could perform. 
 
        John Hughes, a counselor for the State of Iowa Rehabilitation 
 
        Evaluation and Services Branch, reported that he was closing 
 
        claimant's file because of the severity of claimant's disability 
 
        in relation to the unpredictability of claimant's back affecting 
 
        his ability to stand and walk in an employment situation.
 
        
 
        Claimant testified that he completed one job application at a 
 
        trucking company on February 15, 1984, but that he did not get a 
 
        job there, and that he made inquiries at three or four other 
 
        trucking companies but did not make out applications. Claimant 
 
        offered that he cannot sit or stand more than 15 to 20 minutes at 
 
        one one time; that his arms and legs still go numb; that he 
 
        believes he can lift no more than 20 pounds; that he sleeps only 
 
        about three hours a night; and that he cannot operate a truck 
 
        over the road because of the vibration, bouncing and heavy
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 4
 
        
 
        
 
        lifting.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        Before any attempt is made to address the substantive issues 
 
        involved in this case, it is necessary to resolve the somewhat 
 
        acrimonious allegations of both parties that the deputy erred, 
 
        following a myriad of prehearing and hearing motions, responses 
 
        and objections, in allowing or disallowing certain evidence into 
 
        the record.
 
        
 
        It must first be noted that claimant filed his original notice 
 
        and petition on March 28, 1984 and on July 15, 1985 a prehearing 
 
        order was filed advising the parties that all exams and 
 
        depositions were to be scheduled by September 6, 1985 with 
 
        discovery completed by December 6, 1985, almost 21 months after 
 
        the petition was filed and 31 months after the alleged injury 
 
        occurred. The assignment order filed December 16, 1985 advised 
 
        all parties they were to exchange witness lists by January 27, 
 
        1986. On December 30, 1985, defendants requested a continuation 
 
        of the hearing on the basis that witnesses had been identified. 
 
        No request was made to extend the deadline listed in the July 15, 
 
        1985 or December 16, 1985 orders. On January 27, 1986, 
 
        defendants submitted a witness list and filed such a motion to 
 
        extend time. The deputy commissioner correctly denied 
 
        defendants' motion. More than adequate time was allowed for 
 

 
        
 
 
 
 
 
        discovery in this case. On December 30, defendants indicated 
 
        they had identified the witnesses they needed to call. The 
 
        record fails to establish any good cause to extend the deadlines 
 
        set. An administrative proceeding is not bound by all of the 
 
        rules of an action brought in the district court; however, even 
 
        an administrative proceeding must be governed by some 
 
        limitations. More than adequate time for discovery was allowed 
 
        in this case. No error is found in the ruling of the deputy. 
 
        Defendants cannot hold others responsible for their own lack of 
 
        due diligence.
 
        
 
        Claimant assigns as error the deputy's actions in allowing the 
 
        testimony of Kate Benson, Eris Leonard and Dr. Wirtz while 
 
        defendants assign error to the exclusion of the dispositions of 
 
        Roland Miller and David Shreeve and the testimony of Josephine 
 
        Schwabbe and Michael May.
 
        
 
        Defendants' witness list, served January 27, 1986, will control. 
 
        Although claimant objects this list was not received until 
 
        January 28, common sense dictates the list was timely. Therefore, 
 
        those witnesses on the list were properly permitted to testify 
 
        including Eris Leonard and Dr. Peter Wirtz. Kate
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 5
 
        
 
        
 
        Benson was not on this list and her testimony was to act as a 
 
        substitute for Carma Mitchell who had been listed. Absent a 
 
        showing of emergency or other compelling reason, substitutions of 
 
        witnesses should not be permitted. No such showing was made in 
 
        this case. Reference was made to some medical condition or 
 
        problem (Transcript, Page 211) which is insufficient to establish 
 
        a compelling reason. Therefore, the testimony of Kate Benson 
 
        should not have been permitted.
 
        
 
        The depositions of Roland Miller and David Shreeve (Def. Ex. 5 
 
        and 6) should not be admitted as these depositions failed to 
 
        comply with the Iowa Rules of Civil Procedure, particularly Rule 
 
        147(a). Division of Industrial Services Rule 343-4.35 dictates 
 
        that the rules of civil procedure shall govern the contested case 
 
        proceedings unless the provisions are in conflict or obviously 
 
        inapplicable. Rule 147(a) is obviously applicable and not in 
 
        conflict. No error is found in the deputy's ruling to exclude 
 
        this testimony. In addition, the depositions on interrogatories 
 
        of Miller and Shreeve (Def. EX. 8 and 9) were also properly 
 
        excluded as not timely. These exhibits were produced just days 
 
        prior to hearing and clearly exceeded the deadlines established 
 
        by the prehearing orders and claimant was clearly denied the 
 
        opportunity to cross-examine. No error is found in the deputy's 
 
        ruling to exclude this evidence.
 
        
 
        The testimony of Josephine Schwabbe and Michael May was properly 
 
        excluded as their names did not appear on a timely witness list.
 
        
 
        Summarily reviewing the objections to various exhibits, it is 
 
        accepted exhibits A, B and C were properly admitted as 
 
        impeachment; exhibit 3 was properly admitted as it goes to 
 
        credibility; and the evidence of claimant's felony convictions 
 
        also goes to credibility and may be admitted for its probative 
 
        value. See Iowa Code section 17A.14.
 
        
 
        The second issue to be resolved is the extent of claimant's 
 
        industrial disability. Claimant argues that he has met his burden 
 
        of establishing a prima facie showing to place him in the odd-lot 
 
        category. A review of the evidence establishes claimant has not 
 

 
        
 
 
 
 
 
        met his burden in this regard. Claimant's only evidence is that 
 
        he applied for one job, did not get it, and inquired about three 
 
        others; that he receives social security disability payments; and 
 
        that a vocational rehabilitation office declined him services. 
 
        This evidence falls far short of that needed to establish a prima 
 
        facie showing that he is unemployable in the sense contemplated 
 
        in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Even 
 
        if claimant had made a prima facie showing, the defendants 
 
        presented sufficient evidence to overcome claimant's prima facie 
 
        showing. Claimant is not unemployable merely because he can no 
 
        longer drive a truck.
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 6
 
        
 
        
 
        In determining industrial disability, the deputy concluded:
 
        
 
        It was stated by several authorities that the claimant will not 
 
        be able to return to the job of an over-the-road truck driver. 
 
        However, claimant has indicated that he would like to try to see 
 
        if he could do it. Nevertheless, he will probably need 
 
        rehabilitation services in order to find a job other than driving 
 
        a truck. The claimant did make one job application and a few 
 
        other inquiries but otherwise has not made a serious or sustained 
 
        attempt to find employment within the trucking industry. He has 
 
        made virtually no attempt to find employment outside of trucking.
 
        
 
        Dr. Bickel found that the claimant had a 15 percent permanent 
 
        partial impairment of the lumbosacral spine. Dr. Marsh 
 
        determined that the claimant had a 15 to 20 percent rating based 
 
        upon the Workman's Compensation Guidelines published by the 
 
        Minnesota Medical Association. No medical evidence was 
 
        introduced to explain the comparison between the Minnesota 
 
        standard and the Iowa standard of determining or evaluating 
 
        impairment. All we know is that Dr. Bickel's number and Dr. 
 
        Marsh's number are approximately the same numerically for 
 
        whatever that is worth. Dr. Wirtz thought that the claimant's 
 
        lumbosacral strain should have resolved itself in six to 12 
 
        weeks.
 
        
 
        When all factors of industrial disability are considered 
 
        including claimant's functional disability, age, education, 
 
        qualifications, experience, and ability to engage in employment 
 
        for which he is fitted, the deputy was correct in determining 
 
        that claimant had sustained a permanent partial disability of 20 
 
        percent for industrial purposes.
 
        
 
        The third and final issue to be resolved is healing period 
 
        benefits. Claimant initially returned to work but was later 
 
        unable to do his job, and Dr. Bickel indicated that claimant had 
 
        reached maximum recuperation by October 27, 1983. Dr. Bickel 
 
        later wrote on February 10, 1984 that claimant had reached 
 
        maximum recovery. There is no explanation as to why Dr. Bickel 
 
        may have changed his impression. More importantly, there is no 
 
        indication that claimant's condition improved between October 27, 
 
        1983 and February 10, 1984 or any other later date. It is 
 
        therefore accepted that claimant had reached maximum recovery on 
 
        October 27, 1983.
 
        
 
        Claimant, however, had two other surgical procedures related to 
 
        pain for his work-related injury. While hospitalized for the
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 7
 
        
 

 
        
 
 
 
 
 
        
 
        surgeries and reasonable recovery time thereafter, claimant would 
 
        be eligible for temporary total disability benefits. Therefore, 
 
        claimant was admitted to the hospital on July 1, 1984 through 
 
        July 4, 1984 (the dates of the myelogram) and from November 26, 
 
        1984 to May 26, 1985 (the date of the exploratory surgery at Mayo 
 
        Clinic and six months for recovery from surgery that Dr. Marsh 
 
        said would be appropriate). It should be noted that Dr. Marsh's 
 
        letter of January 3, 1986 did not extend the recovery time from 
 
        the surgery, but merely indicated that claimant would have 
 
        reached maximum medical improvement by that time. Accordingly, 
 
        the deputy's decision is modified to treat the benefits for these 
 
        surgeries as temporary total disability and to include the dates 
 
        of the surgery for the myelogram.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by defendants as a truck driver on May 
 
        31, 1983 and, while unloading empty beer kegs by stacking them on 
 
        pallets, one or more of the kegs struck claimant in the back and 
 
        legs.
 
        
 
        2. Claimant immediately suffered low back pain, leg numbness and 
 
        pain and urinated blood.
 
        
 
        3. Claimant reported this injury to his wife and his employer 
 
        within a few hours after the injury and went to see Yang Ahn, 
 
        M.D., the following day on June 1, 1983.
 
        
 
        4. Dr. Ahn reported that claimant suffered a contusion, spasm of 
 
        the lumbar area and hematuria and treated claimant from June 1, 
 
        1983 with bed rest, medications and acupuncture, releasing him to 
 
        return to work on June 21, 1983.
 
        
 
        5. Claimant worked again and performed his job as a truck driver 
 
        from approximately June 25, 1983 to August 4, 1983.
 
        
 
        6. On August 5, 1983, a dispute arose between the employee and 
 
        the employer and as a result of the dispute claimant's employment 
 
        was terminated.
 
        
 
        7. Claimant's separation from employment was not related to his 
 
        work injury.
 
        
 
        8. On the day claimant learned that his employment was 
 
        terminated, he began medical treatment again for his injury by 
 
        returning to Dr. Ahn who referred claimant to Earl H. Bickel, 
 
        M.D.
 
        
 
        9. Dr. Bickel determined claimant had degenerative disc disease 
 
        and lumbosacral strain and later determined that a disc was 
 
        injured but not ruptured or compressed and phrased his diagnosis 
 
        as discogenic disease stating that claimant had a congenital 
 
        anomoly or spondylosis, early facet changes and a
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 8
 
        
 
        
 
        strong psychosomatic overlay.
 
        
 
        10. Even though the phrasing of the diagnosing changed, 
 
        claimant's symptoms, complaints and condition neither changed nor 
 
        improved.
 
        
 
        11. The injury if May 31, 1983 was the cause of claimant's back 
 

 
        
 
 
 
 
 
        and leg condition.
 
        
 
        12. Claimant reached his maximum medical improvement on October 
 
        27, 1983.
 
        
 
        13. Although claimant continued to see many doctors and even 
 
        underwent exploratory surgery at the Mayo Clinic largely due to 
 
        his own insistence, he never demonstrated any significant 
 
        improvement of his condition.
 
        
 
        14. Claimant had surgery at Mayo Clinic on November 26, 1984, and 
 
        his healing period ended May 25, 1985.
 
        
 
        15. Claimant was hospitalized for a myelogram from July 1, 1984 
 
        through July 4, 1984.
 
        
 
        16. Claimant sustained a permanent partial impairment as a result 
 
        of the injury of May 31, 1983.
 
        
 
        17. Claimant had not shown that he is unemployable.
 
        
 
        18. Claimant has not made a serious or sustained effort to find 
 
        employment.
 
        
 
        19. Claimant incurred the medical expenses and mileage as shown 
 
        on the attachments to paragraph eight and paragraph D of the 
 
        prehearing order .
 
        
 
        20. Claimant did not submit proof of payment of his itemized list 
 
        of costs.
 
        
 
        21. Claimant, currently 50 years old, with a fifth grade 
 
        education, has sustained a permanent partial disability of 20 
 
        percent for industrial purposes.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant sustained an injury which arose out of and in the 
 
        course of his employment on May 31, 1983.
 
        
 
        The injury is the cause of both temporary and permanent 
 
        disability.
 
        
 
        Claimant is entitled to healing period benefits for the period 
 
        from June 1, 1983 through June 20, 1983 and again from
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 9
 
        
 
        
 
        August 10, 1983 through October 27, 1983.
 
        
 
        Claimant is entitled to temporary total disability benefits for 
 
        the periods July 1, 1984 through July 4, 1984 and November 26, 
 
        1984 through May 25, 1985.
 
        
 
        Claimant is entitled to permanent partial disability benefits for 
 
        industrial disability of 20 percent of the body as a whole for a 
 
        total of 100 weeks (.20 x 500).
 
        
 
        Claimant is entitled to medical expenses and mileage expenses as 
 
        shown on the itemization referred to as attachments to paragraph 
 
        8 of the prehearing report in the amount of $9,885.36 and a total 
 
        of 3,688 miles.
 
        
 
        Claimant is entitled to the costs of this action, but the exact 
 

 
        
 
 
 
 
 
        amount cannot be determined because no proof of payment has been 
 
        submitted.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay healing period benefits to claimant for the 
 
        period June 1, 1983 through June 20, 1983, which is two point 
 
        eight-five-seven (2.857) weeks, at the rate of two hundred 
 
        sixty-nine and 18/100 dollars ($269.18) per week for a total 
 
        payment of seven hundred sixty-nine and 05/100 dollars ($769.05).
 
        
 
        That defendants pay healing period benefits to claimant for the 
 
        period August 10, 1983 through October 27, 1983, which is eleven 
 
        point two-eight-six (11.286) weeks, at the rate of two hundred 
 
        sixty-nine and 18/100 dollars ($269.18) per week for a total 
 
        payment of three thousand thirty-seven and 97/100 dollars 
 
        ($3,037.97).
 
        
 
        That defendants pay temporary total disability benefits to 
 
        claimant for the periods July 1, 1984 through July 4, 1984 and 
 
        November 26, 1984 through May 25, 1985, which is twenty-six point 
 
        four-two-eight (26.428) weeks, at the rate of two hundred 
 
        sixty-nine and 18/100 dollars ($269.18) per week for a total 
 
        payment of seven thousand one hundred thirteen and 89/100 dollars 
 
        ($7,113.89).
 
        
 
        That defendants pay to claimant one hundred (100) weeks (.20 x 
 
        500) of permanent partial disability benefits for industrial 
 
        disability beginning on October 28, 1983 at the rate of two 
 
        hundred sixty-nine and 18/100 dollars ($269.18) per week for a 
 
        total payment of twenty-six thousand nine hundred eighteen
 
        
 
        BASCOM V. LEONARD FEED & GRAIN, INC.
 
        Page 10
 
        
 
        
 
        dollars and 00/100 dollars ($26,918.00).
 
        
 
        That defendants pay claimant's medical expenses in the amount of 
 
        nine thousand eight hundred eighty-five and 36/100 dollars 
 
        ($9,885.36) as shown on the attachment to paragraph eight of the 
 
        prehearing report.
 
        
 
        That defendants pay claimant three thousand six hundred 
 
        eighty-eight (3,688) miles of travel expense at the rate of 
 
        twenty-four cents ($.24) per mile for a total payment of eight 
 
        hundred eighty-five and 12/100 dollars ($885.12).
 
        
 
        That defendants are entitled to credit for any benefits 
 
        previously paid.
 
        
 
        That defendants pay the accrued benefits in a lump sum.
 
        
 
        That interest will accrue under Iowa Code section 85.30.
 
        
 
        That defendants will pay the costs of the arbitration proceeding 
 
        in accordance with Division of Industrial Services Rule 343-4.33.
 
        
 
        That both parties equally share the costs of this appeal 
 
        including the costs of transcription of the arbitration hearing.
 
        
 
        That defendants file activity reports pursuant to Division of 
 

 
        
 
 
 
 
 
        Industrial Services Rule 343-3.1(2).
 
        
 
        
 
        
 
                                         DEBORAH A. DUBIK
 
                                  DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH D. BASCOM,
 
         
 
              Claimant,                           File No. 735545
 
         
 
         vs.
 
                                                    A P P E A L
 
         LEONARD FEED & GRAIN, INC.,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         GREAT WEST CASUALTY CO., 
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              By order of the industrial commissioner filed April 25, 
 
         1988, the undersigned deputy industrial commissioner has been 
 
         appointed under the provisions of Iowa Code section 86.3 to issue 
 
         a final agency decision in this matter.
 
         
 
              Claimant appeals and defendants cross-appeal from an 
 
         arbitration decision awarding healing period benefits; permanent 
 
         partial disability benefits for industrial disability of 20 
 
         percent; medical expenses; and travel expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 36, inclusive; 
 
         defendants' exhibits 1 through 4, inclusive; and defendants' 
 
         rebuttal exhibits A, B and C.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are whether the deputy correctly ruled 
 
         on admission of testimony and evidence; the extent of claimant's 
 
         industrial disability; and whether the deputy correctly 
 
         determined healing period benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant testified he was injured on May 31, 1983 while 
 
         unloading empty beer bottles and beer kegs at a brewery in 
 
         Memphis, Tennessee when a stack of kegs on pallets fell knocking 
 
         him to the floor, and landing on his back.  He returned to Iowa 
 
         the following day and, when he and defendant employer could not 
 
         agree on which doctor he should visit, he saw what was described 
 
         as a "neutral" doctor, Yang Ahn, M.D.
 
         
 

 
              Dr. Ahn examined claimant on June 1, 1983 and reported 
 
         that claimant sustained a contusion and sprain of the lumbar 
 
         area and left leg from a falling keg at work.  He took claimant 
 
         off work and treated him with rest, muscle relaxers, 
 
         analgesics, and acupuncture and released him to return to work 
 
         on June 21, 1983 which claimant did and thereafter made several 
 
         trips.
 
         
 
              Claimant indicated to defendant employer on August 4, 1983 
 
         that he was no longer able to drive.  When he picked up his 
 
         paycheck., he found a report that he had voluntarily quit his 
 
         job.  On August 9, 1983, he called Dr. Ahn and reported his 
 
         back pain was worse.  Dr. Ahn referred claimant to Earl H. 
 
         Bickel, M.D., an orthopedic surgeon.
 
         
 
              Dr. Bickel saw claimant on August 11, 1983 and reported 
 
         that his clinical impression was degenerative disc disease with 
 
         acute lumbosacral strain.  Claimant was hospitalized from 
 
         August 12, 1983 to August 20, 1983 and had a discharge 
 
         diagnosis of chronic lumbosacral strain.  Claimant returned to 
 
         see Dr. Bickel September 21, 1983 and was diagnosed as 
 
         discogenic disease with possible early facet changes and 
 
         spondylolisthesis at L5-S1.  On October 27, 1983, Dr. Bickel 
 
         reiterated his chronic strain diagnosis and reported that 
 
         claimant had probably reached a point of maximum recovery.
 
         
 
              Claimant was seen by Warren N. Verdeck, M.D., on December 
 
         22, 1983 who diagnosed claimant as having a low back strain, 
 
         possible radiculopathy on the left side.  He did not think he 
 
         had reached maximum recovery and wanted to wait another two to 
 
         three months.
 
         
 
              Claimant was seen by James R. LaMorgese, M.D., on December 
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE   3
 
         
 
         15, 1983 and his impression was "[c]hronic back pain in the 
 
         thoracic and lumbar regions with intermittent numbness in the 
 
         left leg after work-related injury without major neurologic 
 
         findings.O
 
         
 
              In a letter dated February 10, 1984, Dr. Bickel stated 
 
         that claimant had probably reached his period of maximum 
 
         recovery and doubted whether claimant could return to his job 
 
         as a trucker.  He also stated that claimant has a discogenic 
 
         type of injury with soft tissue injury to his back which is the 
 
         equivalent to 15 percent permanent partial "disability" of the 
 
         lumbosacral spine.  On July 1, 1984, Dr. Bickel, admitted 
 
         claimant to the hospital for a myelogram and reported his 
 
         impression of discogenic disease with possible early facet 
 
         changes and spondylolisthesis at L-5, Sl with psychosomatic 
 
         overlay.  Dr. Bickel described the myelogram as essentially 
 
         negative and claimant was discharged from the hospital on July 
 
         4, 1984.  Claimant thereafter requested additional consultation 
 
         at the Mayo Clinic.
 
         
 
              The records of the Mayo Clinic show that claimant was seen 
 
         there in September, October and November 1984 by W. R. Marsh, 
 
         M.D., who concurred with Dr. BickelOs diagnosis of L-5 
 
         radiculopathy.  Claimant had exploratory surgery at L5 and L6 
 
         spaces on November 26, 1984 and on December 10, 1984, Dr. Marsh 
 
         indicated that claimant did not feel that his pain symptoms 
 
         were much improved after surgery.  Dr. Marsh gave claimant a 
 
         "disability" rating of 15-20 percent of the person because of 
 
         persistent pain and mild weakness in the left L5 myotome and 
 
         thereafter stated that there. was no question that claimant's 
 
         permanent partial disability is wholly related to the injuries 
 
         sustained in May 1983 and that the period of temporary total 
 
         disability would be six months from the surgery on November 26, 
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE   4
 
         
 
         1984.  In a letter dated January 3, 1986, Dr. Marsh stated it 
 
         was reasonable to conclude that claimant had reached maximum 
 
         medical improvement with regard to his lumbar spine.
 
         
 
              Claimant was examined on one occasion by Peter D. Wirtz, 
 
         M.D., who, in a letter dated May 1, 1985, reported his opinion 
 
         that claimant had suffered a lumbosacral strain or 
 
         musculoskeletal strain to the lumbar area, and that "[t]his 
 
         condition would clear over a 6-12 week period of time."
 
         
 
              G. Brian Paprocki, M.S., a vocational consultant retained 
 
         by claimant, opined that claimant had sustained a 70 percent 
 
         industrial disability and would not be able to reenter the 
 
         labor market without vocational assistance.  Carma A. Mitchell, 
 
         M.S., a vocational consultant, issued a report stating that 
 
         claimant ,was employable and listing 14 job titles that 
 
         claimant could perform.  John Hughes, a counselor for the State 
 
         of Iowa Rehabilitation Evaluation and Services Branch, reported 
 
         that he was closing claimant's file because of the severity of 
 
         claimant's disability in relation to the unpredictability of 
 
         claimant's back affecting his ability to stand and walk in an 
 
         employment situation.
 
         
 
              Claimant testified that he completed one job application 
 
         at a trucking company on February 15, 1984, but that he did not 
 
         get a job there, and that he made inquiries at three or four 
 
         other trucking companies but did not make out applications.  
 
         Claimant offered that he cannot sit or stand more than 15 to 20 
 
         minutes at one one time; that his arms and legs still go numb; 
 
         that he believes he can lift no more than 20 pounds; that he 
 
         sleeps only about three hours a night; and that he cannot 
 
         operate a truck over the road because of the vibration, 
 
         bouncing and heavy lifting.
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE   5
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
 
 
                                     ANALYSIS
 
         
 
              Before any attempt is made to address the substantive issues 
 
         involved in this case, it is necessary to resolve the somewhat 
 
         acrimonious allegations of both parties that the deputy erred, 
 
         fallowing a myriad of prehearing and hearing motions, responses 
 
         and objections, in allowing or disallowing certain evidence into 
 
         the record.
 
         
 
              It must first be noted that claimant filed his original 
 
         notice and petition on March 28, 1984 and on July 15, 1985 a 
 
         prehearing order was filed advising the parties that all exams 
 
         and depositions were to be scheduled by September 6, 1985 with 
 
         discovery completed by December 6, 1985, almost 21 months after 
 
         the petition was filed and 31 months after the alleged injury 
 
         occurred.  The assignment order filed December 16, 1985 advised 
 
         all parties they were to exchange witness lists by January 27, 
 
         1986.  On December 30, 1985, defendants requested a continuation 
 
         of the hearing on the basis that witnesses had been identified.  
 
         No request was made to extend the deadline listed in the July 15, 
 
         1985 or December 16, 1985 orders.  On January 27, 1986, 
 
         defendants submitted a witness list and filed such a motion to 
 
         extend time.  The deputy commissioner correctly denied 
 
         defendantsO motion.  More than adequate time was allowed for 
 
         discovery in this case.  On December 30, defendants indicated 
 
         they had identified the witnesses they needed to call.  The 
 
         record fails to establish any good cause to extend the deadlines 
 
         set.  An administrative proceeding is not bound by all of the 
 
         rules of an action brought in the district court; however, even 
 
         an administrative proceeding must be governed by some 
 
         limitations.  More than adequate time for discovery was allowed 
 
         in this case.  No error is found in the ruling of the deputy.  
 
         Defendants cannot hold others responsible for their own lack of 
 
         due diligence.
 
         
 
              Claimant assigns as error the deputy's actions in allowing 
 
         the testimony of Kate Benson, Eris Leonard and Dr. Wirtz while 
 
         defendants assign error to the exclusion of the dispositions of 
 
         Roland Miller and David Shreeve and the testimony of Josephine 
 
         Schwabbe and Michael May.
 
         
 
              Defendants' witness list, served January 27, 1986, will 
 
         control.  Although claimant objects this list was not received 
 
         until January 28, common sense dictates the list was timely.  
 
         Therefore, those witnesses on the list were properly permitted to 
 
         testify including Eris Leonard and Dr. Peter Wirtz.  Kate Benson 
 
         was not on this list and her testimony was to act as a substitute 
 
         for Carma Mitchell who had been listed.  Absent a showing of 
 
         emergency or other compelling reason, substitutions of witnesses 
 
         should not be permitted.  No such showing was made in this case.  
 
         Reference was made to some medical condition or problem 
 
         (Transcript, Page 211) which is insufficient to establish a 
 
         compelling reason.  Therefore, the testimony of Kate Benson 
 
         should not have been permitted.
 
              The depositions of Roland Miller and David Shreeve (Def. Ex. 
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE   6
 
         
 
         5 and 6) should not be admitted as these depositions failed to 
 
         comply with the Iowa Rules of Civil Procedure, particularly Rule 
 
         147(a).  Division of Industrial Services Rule 343-4.35 dictates 
 
         that the rules of civil procedure shall govern the contested case 
 
         proceedings unless the provisions are in conflict or obviously 
 
         inapplicable.  Rule 147(a) is obviously applicable and not in 
 
         conflict.  No error is found in the deputy's ruling to exclude 
 
         this testimony.  In addition, the depositions on interrogatories 
 
         of Miller and Shreeve (Def. Ex. 8 and 9) were also properly 
 
         excluded as not timely.  These exhibits were produced just days 
 
         prior to hearing and clearly exceeded the deadlines established 
 
         by the prehearing orders and claimant was clearly denied the 
 
         opportunity to cross-examine.  No error is found in the deputy's 
 
         ruling to exclude this evidence.
 
         
 
              The testimony of Josephine Schwabbe and Michael May was 
 
         properly excluded as their names did not appear on a timely 
 
         witness list.
 
         
 
              Summarily reviewing the objections to various exhibits, it 
 
         is accepted exhibits A, B and C were properly admitted as 
 
         impeachment; exhibit 3 was properly admitted as it goes to 
 
         credibility; and the evidence of claimant's felony convictions 
 
         also goes to credibility and may be admitted for its probative 
 
         value.  See Iowa Code section 17A.14.
 
         
 
              The second issue to be resolved is the extent of claimant's 
 
         industrial disability.  Claimant argues that he has met his 
 
         burden of establishing a prima facie showing to place him in the 
 
         odd-lot category.  A review of the evidence establishes claimant 
 
         has not met his burden in this regard.  Claimant's only evidence 
 
         is that he applied for one job, did not get it, and inquired 
 
         about three others; that he receives social security disability 
 
         payments; and that a vocational rehabilitation office declined 
 
         him services.  This evidence falls tar short of that needed to 
 
         establish a prima facie showing that he is unemployable in the 
 
         sense contemplated in Guyton v. Irving Jensen Co., 373 N.W.2d 101 
 
         (Iowa 1985).  Even if claimant had made a prima facie showing, 
 
         the defendants presented sufficient evidence to overcome 
 
         claimant's prima facie showing.  claimant is not unemployable 
 
         merely because he can no longer drive a truck.
 
         
 
              In determining industrial  disability, the deputy 
 
         concluded:
 
         
 
                 It was stated by several authorities that the 
 
              claimant will not be able to return to the job of an 
 
              over-the-road truck driver.  However, claimant has 
 
              indicated that he would like to try to see if he could 
 
              do it.  Nevertheless, he will probably need 
 
              rehabilitation services in order to find a job other 
 
              than driving a truck.  The claimant did make one job 
 
              application and a few other inquiries but otherwise has 
 
              not made a serious or sustained attempt to find 
 
              employment within the trucking industry.  He has made 
 
              virtually no attempt to find employment outside of 
 
              trucking.
 
         
 
                 ....
 
         
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE   7
 
         
 
              Dr. Bickel found that the claimant had a 15 percent 
 
              permanent partial impairment of the lumbosacral spine.  
 
              Dr. Marsh determined that the claimant had a 15 to 20 
 
              percent rating based upon the Workman's Compensation 
 
              Guidelines published by the Minnesota Medical 
 
              Association.  No medical evidence was introduced to 
 
              explain the comparison between the Minnesota standard 
 
              and the Iowa standard of determining or evaluating 
 
              impairment.  All we know is that Dr. BickelOs number 
 
              and Dr. Marsh's number are approximately the same 
 
              numerically for whatever that is worth.  Dr. Wirtz 
 
              thought that the claimant's lumbosacral strain should 
 
              have resolved itself in six to 12 weeks.
 
         
 
              When all factors of industrial disability are considered 
 
         including claimant's functional disability, age, education, 
 
         qualifications, experience, and ability to engage in employment 
 
         for which he is fitted, the deputy was correct in determining 
 
         that claimant had sustained a permanent partial disability of 20 
 
         percent for industrial purposes.
 
         
 
              The third and final issue to be resolved is healing period 
 
         benefits.  Claimant initially returned to work but was later 
 
         unable to do his job, and Dr. Bickel indicated that claimant had 
 
         reached maximum recuperation by October 27, 1983.  Dr. Bickel 
 
         later wrote on February 10, 1984 that claimant had reached 
 
         maximum recovery.  There is no explanation as to why Dr. Bickel 
 
         may have changed his impression.  More importantly, there is no 
 
         indication that claimant's condition improved between October 27, 
 
         1983 and February 10, 1984 or any other later date.  It is 
 
         therefore accepted that claimant had reached maximum recovery on 
 
         October 27, 1983.
 
         
 
              Claimant, however, had two other surgical procedures related 
 
         to pain for his work-related injury.  While hospitalized for the 
 
         surgeries and reasonable recovery time thereafter, claimant would 
 
         be eligible for temporary total disability benefits.  Therefore, 
 
         claimant was admitted to the hospital on July 1, 1984 through 
 
         July 4, 1984 (the dates of the myelogram) and from November 26, 
 
         1984 to May 26, 1985 (the date of the exploratory surgery at Mayo 
 
         Clinic and six months for recovery from surgery that Dr. Marsh 
 
         said would be appropriate).  It should be noted that Dr. Marsh's 
 
         letter of January 3, 1986 did not extend the recovery time from 
 
         the surgery, but merely indicated that claimant would have 
 
         reached maximum medical improvement by that time.  Accordingly, 
 
         the deputy's decision is modified to treat the benefits for these 
 
         surgeries as temporary total disability and to include the dates 
 
         of the surgery for the myelogram.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by defendants as a truck driver on 
 
         May 31, 1983 and, while unloading empty beer kegs by stacking 
 
         them on pallets, one or more of the kegs struck claimant in the 
 
         back and legs.
 
         
 
              2.  Claimant immediately suffered low back pain, leg 
 
         numbness and pain and urinated blood.
 
         
 
              3.  Claimant reported this injury to his wife and his 
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE   8
 
         
 
         employer within a few hours after the injury and went to see Yang 
 
         Ahn, M.D., the following day on June 1, 1983.
 
         
 
              4.  Dr. Ahn reported that claimant suffered a contusion, 
 
         spasm of the lumbar area and hematuria and treated claimant from 
 
         June 1, 1983 with bed rest, medications and acupuncture, 
 
         releasing him to return to work on June 21, 1983.
 
         
 
              5.  Claimant worked again and performed his job as a truck 
 
         driver from approximately June 25, 1983 to August 4, 1983.
 
         
 
              6.  On August 5, 1983, a dispute arose between the employee 
 
         and the employer and as a result of the dispute claimant's 
 
         employment was terminated.
 
         
 
              7.  Claimant's separation from employment was not related to 
 
         his work injury.
 
         
 
              8.  On the day claimant learned that his employment was 
 
         terminated, he began medical treatment again for his injury by 
 
         returning to Dr. Ahn who referred claimant to Earl H. Bickel, 
 
         M.D.
 
         
 
              9.  Dr. Bickel determined claimant had degenerative disc 
 
         disease and lumbosacral strain and later determined that a disc 
 
         was injures but not ruptured or compressed and phrased his 
 
         diagnosis as discogenic disease,stating that claimant had a 
 
         congenital anomaly or spondylosis, early facet changes and a 
 
         strong psychosomatic overlay.
 
         
 
             10.  Even though the phrasing of the diagnosing changed, 
 
         claimant's symptoms, complaints and condition neither changed nor 
 
         improved.
 
         
 
             11.  The injury it May 31, 1983 was the cause of claimant's 
 
         back and leg condition.
 
         
 
             12.  Claimant reached his maximum medical improvement on 
 
         October 27, 1983.
 
         
 
             13.  Although claimant continued to see many doctors and even 
 
         underwent exploratory surgery at the Mayo Clinic largely due to 
 
         his own insistence, he never demonstrated any significant 
 
         improvement of his condition.
 
         
 
             14.  Claimant had surgery at Mayo Clinic on November 26, 
 
         1984, and his healing period ended May 25, 1985.
 
         
 
             15.  Claimant was hospitalized for a myelogram from July 1, 
 
         1984 through July 4, 1984.
 
         
 
             16.  Claimant sustained a permanent partial impairment as a 
 
         result of the injury of May 31, 1983.
 
         
 
             17.  Claimant had not shown that he is unemployable.
 
         
 
             18.  Claimant has not made a serious or sustained effort to 
 
         find employment.
 
         
 
             19.  Claimant incurred the medical expenses and mileage as 
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE   9
 
         
 
         shown on the attachments to paragraph eight and paragraph D of 
 
         the prehearing order.
 
         
 
             20.  Claimant did not submit proof of payment of his itemized 
 
         list of costs.
 
         
 
             21.  Claimant, currently 50 years old, with a fifth grade 
 
         education, has sustained a permanent partial disability of 20 
 
         percent for industrial purposes.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on May 31, 1983.
 
         
 
              The injury is the cause of both temporary and permanent 
 
         disability.
 
         
 
              Claimant is entitled to healing period benefits for the 
 
         period from June 1, 1983 through June 20, 1983 and again from 
 
         August 10, 1983 through October 27, 1983.
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         for the periods July 1, 1984 through July 4, 1984 and November 
 
         26, 1984 through May 25, 1985.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits for industrial disability of 20 percent of the body as a 
 
         whole for a total of 100 weeks (.20 x 500).
 
         
 
              Claimant is entitled to medical expenses and mileage 
 
         expenses as shown on the itemization referred to as attachments 
 
         to paragraph 8 of the prehearing report in the amount of 
 
         $9,885.36 and a total of 3,688 miles.
 
         
 
              Claimant is entitled to the costs of this action, but the 
 
         exact amount cannot be determined because no proof of payment has 
 
         been submitted.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay healing period benefits to claimant for 
 
         the period June 1, 1983 through June 20, 1983, which is two point 
 
         eight-five-seven (2.857) weeks, at the rate of two hundred 
 
         sixty-nine and 18/100 dollars ($269.18) per week for a total 
 
         payment of seven hundred sixty-nine and 05/100 dollars 
 
         ($769.05).
 
         
 
              That defendants pay healing period benefits to claimant for 
 
         the period August 10, 1983 through October 27, 1983, which is 
 
         eleven point two-eight-six (11.286) weeks, at the rate of two 
 
         hundred sixty-nine and 18/100 dollars ($269.18) per week for a 
 
         total payment of three thousand thirty-seven and 97/100 dollars  
 
         ($ 3,037.89).
 
         
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE  10
 
         
 
              That defendants pay temporary total disability benefits to 
 
         claimant for the periods July 1, 1984 through July 4, 1984 and 
 
         November 26, 1984 through May 25, 1985, which is twenty-six point 
 
         four-two-eight (26.428) weeks, at the rate of two hundred 
 
         sixty-nine and 18/100 dollars ($269.18) per week for a total 
 
         payment of seven thousand one hundred thirteen and 89/100 dollars 
 
         ($7,113.89).
 
         
 
              That defendants pay to claimant one hundred (100) weeks (.20 
 
         x 500) of permanent partial disability benefits for industrial 
 
         disability beginning on October 28, 1983 at the rate of two 
 
         hundred sixty-nine and 18/100 dollars ($269.18) per week for a 
 
         total payment of twenty-six thousand nine hundred eighteen 
 
         dollars and 00/100 dollars ($26,918.00).
 
         
 
              That defendants pay claimant's medical expenses in the 
 
         amount of nine thousand eight hundred eighty-five and 36/100 
 
         dollars ($9,885.36) as shown on the attachment to paragraph eight 
 
         of the prehearing report.
 
         
 
              That defendants pay claimant three thousand six hundred 
 
         eighty-eight (3,688) miles of travel expense at the rate of 
 
         twenty-four cents ($.24) per mile for a total payment of eight 
 
         hundred eighty-five and 12/100 dollars ($885.12).
 
         
 
              That defendants are entitled to credit for any benefits 
 
         previously paid.
 
         
 
              That defendants pay the accrued benefits in a lump sum.
 

 
         
 
         
 
         
 
         BASCOM V LEONARD FEED & GRAIN, INC.
 
         PAGE  11
 
         
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendants will pay the costs of the arbitration 
 
         proceeding in accordance with Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              That both parties equally share the costs of this appeal 
 
         including the costs of transcription of the arbitration hearing.
 
         
 
              That defendants file activity reports pursuant to Division 
 
         of Industrial Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 17th day of August, 1988.
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas Wertz
 
         Attorney at Law
 
         4089 21st Avenue SW
 
         Suite 114
 
         Cedar Rapids, Iowa 52404
 
         
 
         Mr. Thomas M. Currie
 
         Attorney at Law
 
         P.O. Box 998
 
         3401 Williams Blvd, SW
 
         Cedar Rapids, Iowa 52406-0998
 
         
 
         Mr. Anthony A. Longnecker
 
         Attorney at Law
 
         2600 Ruan Center
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
                                                  2900; 4100; 1803;
 
                                                  1801
 
                                                  Filed August 17, 1988
 
                                                  Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH D. BASCOM,
 
         
 
              Claimant,                            File No. 735545
 
         
 
         vs.
 
                                                    A P P E A L
 
         LEONARD FEED & GRAIN, INC.,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         GREAT WEST CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2900
 
         
 
              Deposition interrogatories and testimony not in compliance 
 
         with the hearing assignment order was not allowed into evidence.
 
         
 
         4100
 
         
 
              Claimant failed to sustain his burden he was an odd-lot 
 
         employee where his only evidence on the issue was that he applied 
 
          for one job, did not get it, and inquired about three others; 
 
         that he received social security disability payments; and that a 
 
         vocational rehabilitation office declined him services.  It was 
 
         found this evidence falls short of that needed to establish a 
 
         prima facie showing that he is unemployable in the sense 
 
         contemplated in Guyton.
 
         
 
         1803
 
         
 
              Claimant, who sustained an injury which arose out of an in 
 
         the course of his employment when he was struck by empty beer 
 
         kegs while unloading them, was found to have a permanent partial 
 
         disability of 20% for industrial purposes.  Claimant was found to 
 
         have degenerative disc disease and lumbosacral strain and it was 
 
         found that as a result of the injury a disc was injured but not 
 
         ruptured or compressed.
 
         
 
         
 
                                                
 
         
 
         
 
         1801                                                
 
         
 
              Claimant was entitled to temporary total disability benefits 
 
         for the period of time he was hospitalized due to a myelogram and 
 
         for the period of time he recovered from exploratory surgery 
 
         since his healing period is the result of the injury and did some 
 
         nine months prior to hospitalization for a myelogram.
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH D. BASCOM,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 735545
 
         
 
         LEONARD FEED & GRAIN, INC.,                     O R D E R
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        APR 25 1988
 
         GREAT WEST CASUALTY CO.,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier ,
 
              Defendants.
 
         
 
         
 
              Because the undersigned made oral rulings regarding the 
 
         admission of evidence and testimony at the arbitration hearing on 
 
         March 19, 1986 which are on appeal along with the arbitration 
 
         decision filed June 30, 1986, it is necessary to invoke the 
 
         provisions of Iowa Code section 86.3.
 
         
 
              You are, therefore, advised that Deputy Industrial 
 
         Commissioner Deborah Dubik has been delegated the authority to 
 
         issue the final agency decision in this matter on appeal.
 
         
 
              If you believe there is any reason for Deputy Dubik to be 
 
         disqualified from reviewing this matter and issuing the final 
 
         agency decision on appeal, you have twenty (20) days from the 
 
         date of this order to communicate those reasons in writing.  If 
 
         such reasons are justified, the appeal matter will either be 
 
         retained by the industrial commissioner or reassigned to another 
 
         deputy.
 
         
 
              If no written objections to Deputy Dubik presiding over the 
 
         final agency decision are received within the allotted time, then 
 
         she shall be considered invested with those powers of the 
 
         industrial commissioner but limited to matters related to and 
 
         necessary for the disposition of this appeal.
 
         
 
         
 
              Signed and filed this 25th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                                
 
                                                         
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave. SW, Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. Thomas J. Currie
 
         Attorney at Law
 
         3401 Williams Blvd. SW
 
         P.O. Box 998
 
         Cedar Rapids, Iowa  52406-0998
 
         
 
         Mr. Anthony A. Longnecker
 
         Attorney at Law
 
         2600 Ruan Center
 
         Des Moines, Iowa  50309
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed May 29, 1992
 
            BYRON K. ORTON
 
            JMI
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEWEY D. SMITHWICK,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 735926
 
            CLOVERLEAF COLD STORAGE CO.,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD COMPANIES,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            15, 1992.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH J. HESSE,
 
                                                 FILE NOS. 736110 &  
 
                                                           702793
 
              Claimant,
 
                                                A R B I T R A T I 0 N
 
         VS.
 
                                                       A N D
 
         MAYTAG COMPANY,
 
                                                    R E V I E W -
 
              Employer,
 
                                                 R E 0 P E N I N G 
 
         and
 
                                                  D E C I S I O N
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a combined proceeding in review-reopening and 
 
         arbitration brought by Joseph J. Hesse, claimant, against maytag 
 
         Company, employer (hereinafter referred to as Maytag), and 
 
         Travelers Insurance Company, insurance carrier, defendants, for 
 
         the recovery of further benefits as a result of injuries on April 
 
         22, 1982 and June 9, 1983.  A memorandum of agreement for the 
 
         April 22, 1982 injury was filed on June 4, 1982.  On May 15, 
 
         1987, 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 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: James Duncan, William Martin and Mary Cobbs.  
 
         The exhibits received into the evidence at hearing are listed in 
 
         the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations:
 
         
 
              1.  On April 22, 1982, and again on June 9, 1983, claimant 
 
         received injuries which arose out of and in the course of his 
 
         employment with Maytag;
 
         
 
              2.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this combined 
 
         proceeding;
 
         
 
         
 
              3.  If the 1982 injury is found to cause permanent 
 
         disability, the disability is a scheduled member disability to 
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   2
 
         
 
         
 
         the right hand.  If the 1983 injury is found to cause permanent 
 
         disability, the disability is a scheduled member disability to 
 
         the left elbow;
 
         
 
              4.  The commencement date for permanent partial disability 
 
         benefits if awarded herein shall be December 18, 1984 for the 
 
         1982 injury and October 3, 1983 for the 1983 injury;
 
         
 
              5.  Claimant's rate of compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $273.74 
 
         for the 1982 injury and $294.60 for the 1983 injury; and,
 
         
 
              6.  All requested benefits have been or will be paid by 
 
         defendants.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability.
 
         
 
             II.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              From his demeanor while testifying, claimant appeared to be 
 
         truthful.  Claimant's testimony was consistent with histories 
 
         provided to physicians during treatment and evaluation of his 
 
         injuries.
 
         
 
              2.  Claimant has been employed by Maytag since July, 1971, 
 
         and remains employed at Maytag at the present time.
 
         
 
              There is little dispute among the parties as to the nature 
 
         of claimant's employment at Maytag.  Claimant has been a utility 
 
         operator of many machines and since January of 1982, an operator 
 
         of a "Buhr" machine.  Claimant testified his duties on the Buhr 
 
         machine consist of placing parts with his right hand into the 
 
         machine approximately 1,000 to 1,600 times per day.  Some parts 
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   3
 
         
 
         
 
         had to be lightly pushed into the machine in order for the 
 
         machine to operate properly.
 
         
 
              3.  On April 22, 1982, claimant suffered an injury 
 
         consisting of carpal tunnel syndrome of the right hand which 
 
         arose out of and in the course of his employment with Maytag.
 
         
 
              Claimant testified that soon after his assignment to the 
 
         Buhr machine, claimant began to experience difficulties with 
 
         numbness and tingling in conjunction with pain in his right hand 
 
         and fingers and that he started to lose his grip in his right 
 
         hand.  This problem persisted for several months and he 
 
         eventually began to have difficulty sleeping.  After reporting to 
 
         Maytag's medical department several times with these complaints, 
 
         he was referred to Albert Clemens, M.D., a board certified 
 
         general surgeon.  After a diagnosis of carpal tunnel syndrome on 
 
         the right, Dr. Clemens performed a surgical release to correct 
 
         the problem in May, 1982.  Claimant then returned to work without 
 
         restrictions but experienced a recurrence of symptoms in June, 
 
         1984, of the right hand.  Thomas Summers, M.D., examined claimant 
 
         in June, 1984, and stated that he could not identify any active 
 
         ongoing neurologic disorder but noted claimant's continued 
 
         symptoms and suggested further evaluation by an orthopedic hand 
 
         surgeon.  In July, 1984, claimant was examined by Scott Neff, 
 
         M.D., an orthopedic surgeon who diagnosed recurrent right carpal 
 
         tunnel syndrome and, despite a normal EMG test, recommended 
 
         surgery.
 
         
 
              After his diagnosis of recurrent right carpal tunnel 
 
         syndrome, Dr. Clemens performed a second surgery on claimant in 
 
         October, 1984.  This was described by Dr. Clemens in his reports 
 
         as "right recurrent carpal tunnel release and right transection 
 
         of the volar carpal ligament.O  From the history of claimant's 
 
         work provided to him by claimant, Dr. Clemens opined that the 
 
         original carpal tunnel syndrome and recurrence in 1984 was work 
 
         related.  In December, 1984, claimant was examined by Bruce 
 
         Sprague, M.D., another hand surgeon, but he did not render a 
 
         causal connection opinion subsequent to this examination.
 
         
 
              In January, 1987, three physicians from the Iowa Foundation 
 
         for Medical Care, an organization whose purpose and function was 
 
         not shown in the record, opined in a "consensus" report that 
 
         there were "insufficient facts upon which to conclude that the 
 
         carpal tunnel syndrome was work related.O  These physicians did 
 
         not examine claimant.  They base their opinions on the review of 
 
         claimant's past medical records.  These physicians did, however, 
 
         make a reference to a description of claimant's job at Maytag.  
 
         Unfortunately, they did not include in their reports their 
 
         understanding of claimant's work.  This report is somewhat 
 
         confusing as earlier reports from two members of the panel had 
 
         stated that there was a causal connection between claimant's work 
 
         and his right carpal tunnel syndrome.
 
         
 
              The consensus views of the three physicians from the Iowa 
 
         Foundation were given little weight.  The consensus report was 
 
         inconsistent with prior reports by individuals on that panel 
 
         without sufficient explanation as to the change in opinions.  The 
 
         consensus report does not fully describe the physicians' 
 
         understanding as to the type of work claimant was performing.  
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   4
 
         
 
         
 
         The treating physician's views must be given the greater weight 
 
         due to greater clinical familiarity with claimant's symptoms.  
 
         Consequently, the preponderance of the evidence established that 
 
         claimant's right carpal tunnel syndrome in 1982 and the 
 
         recurrence in 1984 were work related.
 
         
 
              4.  The work injury of April 22, 1982 was a cause of a 10 
 
         percent permanent partial impairment to claimant's right hand.
 
         
 
              Claimant stated that he had no previous medical history of 
 
         any hand problems before the work injury herein.  This testimony 
 
         is uncontroverted.  Despite two surgeries to alleviate the 
 
         problem, claimant complains of persistent tingling and numbness 
 
         in his hands and fingers; loss of strength in his hands; and, 
 
         severe pain after certain types of hand activity.  After his last 
 
         examination of claimant, Dr. Clemens opined that due to these 
 
         complaints and his objective findings using his Dynamometer, 
 
         claimant has suffered a 20 percent permanent partial impairment 
 
         to his right hand as a result of the 1982 and 1984 carpal tunnel 
 
         syndromes.
 
         
 
              After his single examination of claimant in December, 1984, 
 
         Dr. Sprague opined initially that claimant has a five percent 
 
         permanent partial impairment to the right hand due to a loss of 
 
         sensation but he could not identify a loss of grip strength.  
 
         There is no mention as to whether or not Dr. Sprague utilized an 
 
         objective device to measure grip strength.  Dr. Sprague later 
 
         stated without explanation that under AMA Guidelines, claimant 
 
         would have no measurable functional impairment.  It is not clear 
 
         from the evidence why Dr. Sprague feels that this agency only 
 
         recognizes impairments measured under the AMA Guidelines.  It was 
 
         the view of the three physicians from the Iowa Foundation 
 
         referred to above that claimant's impairment was "less than 10 
 
         percent of the right hand" due to a loss of sensation.
 
         
 
              All of the various impairment opinions set forth above 
 
         establish by a preponderance of the evidence that claimant 
 
         suffered a 10 percent permanent partial impairment to the right 
 
         hand.  Dr. Summers and Dr. Neff did not examine claimant 
 
         subsequent to the second surgery on the right hand and did not 
 
         render an impairment opinion.
 
         
 
              5.  On June 9, 1983, claimant suffered an injury to the left 
 
         arm which arose out of and in the course of his employment with 
 
         Maytag.
 
         
 
              After the October, 1983, surgery on the right hand, claimant 
 
         began to notice difficulties with his left hand and arm 
 
         consisting of numbness and pain extending from the elbow to the 
 
         fingers.  Claimant returned to Dr. Clemens who diagnosed early 
 
         ulnar nerve neuropathy and left carpal tunnel syndrome and 
 
         prescribed an elbow pad and medication.  Dr. Clemens also 
 
         discussed with claimant the possibility of undergoing an ulnar 
 
         nerve transplant in the area of the left elbow.  However, an EMG 
 
         study in May, 1983, found no objective evidence of left sided 
 
         neuropathy and no surgery was scheduled as a result.  Claimant 
 
         continued working during this period of time and claimant 
 
         testified that his condition improved after the treatment he 
 
         received from Dr. Clemens.
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   5
 
         
 
         
 
         
 
              Claimant testified that on June 9, 1983 a conveyor near his 
 
         work station accidentally moved turning a crank which repeatedly 
 
         struck claimant on the left arm in an area extending from just 
 
         above the elbow to six inches below the elbow on the inside 
 
         portion of the forearm.  Claimant testified that he immediately 
 
         experience pain and swelling in the area of the forearm and elbow 
 
         and reported it to the Maytag medical department.  The physician 
 
         assistant and nurse at the department testified that they treated 
 
         claimant for bruises and contusions on the left forearm 
 
         approximately two inches below the elbow, not in the area of the 
 
         elbow.  Claimant's pain and swelling complaints continued and 
 
         claimant was referred to Dr. Clemens.  After his examination of 
 
         claimant, Dr. Clemens again diagnosed ulnar nerve neuropathy but 
 
         felt that claimant's current aggravated symptoms were 
 
         attributable to the crank incident of June 9, 1983.  According to 
 
         Dr. Clemens' deposition testimony this causally connection 
 
         opinion was based upon his observations of claimant's bruising, 
 
         claimant's description of the incident and a positive EMG 
 
         performed after the crank incident.  The physician assistant 
 
         testified at the hearing that he believed that the extensive 
 
         bruising which extended to the claimant's elbow was natural 
 
         enlargement, of bruising beyond the original trauma site which 
 
         occurs in any injury.
 
         
 
              Dr. Sprague did not render a causal connection opinion as to 
 
         claimant's left elbow difficulties.  The three physicians from 
 
         the Iowa Foundation referred to above felt that the left elbow 
 
         and hand problems were not work related in their consensus report 
 
         which again differed from their individual reports.  This 
 
         difference again was not fully explained in the consensus report. 
 
          In the report of the chairman, Dr. Gilson, the panel did not 
 
         give much weight to claimant's description of the incident and 
 
         they stated in the report that claimant's account of the incident 
 
         was "suspect with all due courtesy.O  Also, none of the 
 
         physicians actually examined claimant.  For these reasons, the 
 
         views of the treating physician, Dr. Clemens, must be given the 
 
         greater weight over the views of the panel.  Dr. Clemens' views 
 
         as to the significance of claimant's bruising after he examined 
 
         claimant following the crank injury must be given more weight 
 
         than the views of a physician assistant.  The panel's views were 
 
         confusing and unlike the panel members, this deputy commissioner 
 
         felt that claimant's account of the incident was truthful.  
 
         Furthermore, claimant's story was buttressed to some extent by 
 
         the testimony of a fellow employee who likewise indicated that he 
 
         observed injuries close to the elbow after the incident.
 
              6.  The work injury of June 9, 1983 was a cause of a three 
 
         percent permanent partial impairment to claimant's left arm.
 
         
 
              Claimant, at the present time, complains of continuing 
 
         problems with his left arm and hand consisting of numbness, 
 
         tingling, pain and weakness.  After tests of grip strength again 
 
         using a Dynamometer, Dr. Clemens opined that claimant has a 10 
 
         percent permanent partial impairment to the "left forearm" due to 
 
         persistent pain, loss of sensation, loss of grip strength and the 
 
         need to be careful when using his left hand and arm.  Dr. Clemens 
 
         did not feel this was directly convertible to a permanent 
 
         impairment to the left arm but did not attempt to make a 
 
         conversion of his rating to the upper extremity.  Claimant's 
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   6
 
         
 
         
 
         attorney, in his brief, suggests that the conversion should be 
 
         from 10 percent to nine percent using the AMA Guidelines for 
 
         converting a hand impairment to an upper extremity impairment.  
 
         This, however, would not be appropriate as Dr. Clemens testified 
 
         that he did not base his impairment rating entirely upon AMA 
 
         Guidelines.  Therefore, his actual permanent partial impairment 
 
         to the arm would be somewhat less than 10 percent.
 
         
 
              Dr. Sprague again could not identify any loss of grip 
 
         strength and only opined that under AMA Guidelines claimant has 
 
         no impairment.  When you consider Dr. Sprague's earlier 
 
         statements concerning the right hand impairment, one is left with 
 
         the thought that Dr. Sprague is again of the opinion that this 
 
         agency only recognizes impairments measured under the AMA 
 
         Guidelines.  This is not the case as will be explained in the 
 
         conclusions of law section.
 
         
 
              The panel of the three doctors from the Iowa Foundation 
 
         again found no impairment despite the lack of an examination of 
 
         claimant.  These views were given weight but not as much as those 
 
         of the examining physician.
 
         
 
              The preponderance of the evidence described above 
 
         demonstrates that claimant's actual impairment is probably three 
 
         percent of the left arm giving greater weight to the views of Dr. 
 
         Clemens but giving as well, adequate weight to the views of the 
 
         other qualified physicians rendering opinions in this case.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              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 
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   7
 
         
 
         
 
         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).
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  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, 997 (Iowa 1983).
 
         When the result of an injury is loss to a scheduled member, the 
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   8
 
         
 
         
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union, C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v.Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              It should be noted that although this agency recognizes the 
 
         AMA Guidelines for the Evaluation of Permanent Impairments as a 
 
         valid tool for measuring impairment, it is not the only method to 
 
         measure such impairment.  Views of qualified physicians are 
 
         valuable in the determination.  See Division of Industrial 
 
         Services Rule 343-2.4.
 
         
 
              Based upon a finding of a 10 percent loss of the use of the 
 
         right hand, claimant is entitled as a matter of law to 19 weeks 
 
         of permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(1) which is 10 percent of the 190 weeks allowable for an 
 
         injury to the hand in that subsection.
 
         
 
              Based upon a finding of a three percent loss of use to the 
 
         left upper extremity, claimant is entitled as a matter of law to 
 
         seven point five weeks of permanent partial disability benefits 
 
         under Iowa Code section 85.34(2)(m) which is three percent of the 
 
         250 weeks allowable for an injury to the arm in that subsection.
 
         
 
              According to the prehearing reports submitted by the 
 
         parties, no permanent disability benefits have been paid by 
 
         defendants prior to the hearing.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant nineteen (19) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventy-three and 74/100 dollars ($273.74) per week from December 
 
         18, 1984 and seven point five (7.5) weeks of permanent partial 
 
         disability benefits at a rate of two hundred ninety-four and 
 
         60/100 dollars ($294.60) per week from October 3, 1983.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3.  Defendants shall pay interest on benefits awarded herein 
 
         as setforth in Iowa Code section 85.30.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  Defendants shall file activity reports upon the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 14th day of August, 1987.
 
         
 

 
         
 
         
 
         
 
         HESSE V. MAYTAG COMPANY
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
                                             LARRY P. WALSHIRE
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 
         Mr. Mark T. Hedberg
 
         Attorneys at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309-1398
 
         
 
         Mr. Terry L. Monson
 
         Attorney at Law
 
         300 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803
 
                                                   Filed August 14, 1987
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOSEPH J. HESSE,
 
                                                  FILE NOS. 736110 & 
 
                                                            702793
 
              Claimant,
 
                                                    A R B I T R A T I 0 N
 
         VS.
 
                                                           A N D
 
         MAYTAG COMPANY,
 
                                                        R E V I E W -
 
              Employer,
 
                                                     R E 0 P E N I N G
 
         and
 
                                                      D E C I S I 0 N
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded permanent partial disability benefits for a 
 
         10 percent loss of use to the right hand and a 3 percent loss of 
 
         use to the left arm as a result of carpal tunnel syndrome and 
 
         ulnar neuropathy.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER SCRIVEN,
 
         
 
             Claimant,
 
         VS.
 
                                                 File No. 736203
 
         WILSON FOODS CORPORATION,
 
         
 
              Employer,
 
         
 
              Self-Insured,
 
              Defendant.
 
         _______________________________
 
         
 
         ROGER L. SCRIVEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 773539
 
         CEDAR RAPIDS MEATS,
 
                                                  A P P E A L
 
         Employer,
 
                                                  R U L I N G
 
         and
 
         
 
         SENTRY INSURANCE
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         _______________________________
 
         
 
         ROGER L. SCRIVEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         FARMSTEAD FOODS,
 
                                                 File No. 814542
 
         
 
              Employer,
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         SCRIVEN V. WILSON FOODS CORP/CEDAR RAPIDS MEATS/FARMSTEAD FOODS 
 
         Page 2
 
                                                
 
                                                         
 
         
 
         
 
              Rule 500-4.27 states in part: "No appeal shall be separately 
 
         taken under this or 4.25 (17A, 86) from an interlocutory 
 
         decision, order or ruling of a deputy industrial commissioner.  A 
 
         decision, order or ruling is interlocutory if it does not dispose 
 
         of the contested case."
 
         
 
              The ruling filed June 2, 1987 which is the subject matter of 
 
         this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
         THEREFORE, the appeal filed July 16, 1987 is hereby dismissed.
 
         
 
         Signed and filed this 28th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                            ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas B. Read
 
         Attorney at Law
 
         1710 IE Tower
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Bldg.
 
         P.O. Box 2107
 
         Cedar Rapid, Iowa 52406