BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA A. CARTER,
 
         
 
              Claimant,
 
                                                        FILE NO. 753620
 
         VS.
 
                                                    A R B I T R A T I O N
 
         OSCAR MAYER FOODS CORPORATION,
 
                                                        D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Patricia A. Carter, 
 
         claimant, against Oscar Mayer Foods Corporation, employer and 
 
         self-insured defendant, for benefits as a result of an alleged 
 
         injury of a cumulative nature, which manifested itself about 
 
         November 1, 1983 according to the petition.  A hearing was held 
 
         at Davenport, Iowa on October 14, 1986 and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         joint exhibits 1 through 14; defendant's exhibits 15 and 16; and 
 
         the testimony of Patricia A. Carter (claimant), Vernon Keller 
 
         (safety/security manager) and Monica Murphy (supervising nurse).
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That the times off work for which the employee seeks 
 
         temporary disability benefits are: November 14, 1983 to April 15, 
 
         1984; April 30, 1984 to July 17, 1984; July 19, 1984 to July 29, 
 
         1984; and November 17, 1984 to November 18, 1984.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $249.05.
 
         
 
              That the medical benefits are not in dispute.
 
         
 
              That the defendant is entitled to a section 85.38(2) 
 
         credit for previous payments under non-occupational group plans 
 
         in the amount of $6,807.86 for income disability and $4,863.27 
 
         for medical expenses.
 
         
 
                                    ISSUES
 
         
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   2
 
         
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether claimant sustained an injury of a cumulative nature 
 
         that manifested itself about November 1, 1986 which arose out of 
 
         and in the course of employment with the employer.
 
         
 
              Whether the alleged injury is the cause of any temporary or 
 
         permanent disability.
 
         
 
              Whether the claimant is entitled to temporary or permanent 
 
         disability benefits.
 
         
 
              Whether the employer had actual knowledge of the injury or 
 
         the employee gave notice of the injury within 90 days as required 
 
         by Iowa Code section 85.23.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant is approximately 43 years old, separated and has 
 
         one dependent son age 11.  She has worked as a "stacker" in the 
 
         "slice pack" (sliced meat) department for approximately 17 years. 
 
          In March of 1979, while working in another department 
 
         temporarily, she was involved in a work related accident that 
 
         resulted in the amputation of all of the middle finger on her 
 
         left hand and approximately one-half of the index finger on the 
 
         left hand.  She was paid workers' compensation benefits and both 
 
         parties agreed that the former injury has no connection with the 
 
         current action.  Claimant's job as a stacker requires repetitive 
 
         use of both hands on a production line in the plant in 
 
         approximately 45 degree temperatures seven hours a day and five 
 
         days a week.  A two foot wide plastic belt delivers sliced meat 
 
         to her in one pound stacks.  The stacks are approximately four or 
 
         five inches high and the meat is cold.  She wears gloves provided 
 
         by the employer but her hands still get cold.  Her job is to pick 
 
         up a stack of sliced meat with her right hand and grasp it 
 
         securely with that hand.  Then with both hands she straightens up 
 
         the stack and passes it to her left hand which places the stack 
 
         in a plastic bubble, while her right hand reaches for the next 
 
         stack of sliced meat.  Both hands are constantly in motion.
 
         
 
              Claimant testified that she first started having 
 
         difficulties in about 1981 to the best of her recollection.  She 
 
         experienced pain in the crease in the palms of her hands, her 
 
         wrists and up into her arms.  There was numbness and tingling in 
 
         her thumb and forefinger.  She reported this to First Aid and 
 
         went there a number of times.  She told them "my hands hurt."  
 
         She testified that "I had no idea what it was."  As a consequence 
 
         she did not report it as a work related injury because she did 
 
         not know what it was.  At First Aid the nurse would wrap her 
 
         hands and send her back to work.
 
         
 
              She first saw her family physician, Duane Manlove, D.O., for 
 
         the condition on November 10, 1983.  He diagnosed carpal tunnel 
 
         syndrome of the right wrist and took her off work on November 14, 
 
         1983.  On November 18, 1983, he referred her to Richard T. Beaty, 
 
         D.O., an orthopedic surgeon (Joint Exhibits 1 & 3).
 
         
 
               Dr. Beaty saw claimant on November 22, 1983 and he also 
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         ,diagnosed right carpal tunnel syndrome (Jt. Ex. 5) and later 
 
         also diagnosed left carpal tunnel syndrome (Jt. Ex. 7).  He 
 
         performed a right carpal tunnel release and median nerve 
 
         neurolysis as an outpatient on December 1, 1983 (Jt. Ex. 4) and 
 
         left carpal tunnel release and median nerve neurolysis on January 
 
         18, 1984 (Jt. Ex. 6).
 
         
 
              Claimant testified that Dr. Manlove told her this could 
 
         happen from the type of work that she did.  However, she did not 
 
         ask him and he did not say what caused her condition.
 
         
 
              Claimant testified that she did not ask Dr. Beaty if it was 
 
         work related and he did not offer her an opinion on whether it 
 
         was work related or not.
 
         
 
              Claimant testified that she first reported this condition to 
 
         the employer about the end of November, 1983, when she learned 
 
         that she had to have surgery.  She reported the injury in order 
 
         to obtain medical and income disability benefits.  Defendant's 
 
         exhibit 15 is a claim statement completed by the claimant on 
 
         December 30, 1983 signed by the claimant which indicates the 
 
         disability was not caused by work and that no claim has been or 
 
         will be filed with a workers' compensation carrier by placing an 
 
         x in the no box in answer to these questions.
 
         
 
              Apparently claimant never did tell the employer or any of 
 
         its representatives that she had a work related injury until she 
 
         filed her petition.  The petition was signed by her attorney on 
 
         January 9, 1984.  According to the proof of service it was mailed 
 
         to the employer on January 16, 1984.
 
         
 
              Monica Murphy, head nurse, filed a first report of injury on 
 
         January 20, 1984 which states that she first learned of this 
 
         injury on January 18, 1984.  Murphy also testified at the hearing 
 
         that her first knowledge of a work related injury was when the 
 
         petition was received.  Murphy granted that claimant had 
 
         complained of sore wrists and hands at work and that she had 
 
         wrapped her hands to give them support, like in extra muscle, but 
 
         the claimant never stated that it was job related.  Murphy did 
 
         not know claimant had been treated by Dr. Manlove or Dr. Beaty.  
 
         Murphy conceded that the symptoms of carpal tunnel are numbness 
 
         and tingling in the fingers and waking up at night.  She did not 
 
         know if claimant complained of numbness or tingling or not.  If 
 
         claimant would have said this was a work related injury they have 
 
         their own doctors other than Dr. Manlove and Dr. Beaty to treat 
 
         the claimant.  A company doctor is not required for non-work 
 
         related injuries.  Murphy testified that the company has had at 
 
         least eight cases of carpal tunnel syndrome and possibly more.
 
         
 
              Vernon Keller, safety and security manager for the employer, 
 
         testified that the company has had eight cases of carpal tunnel 
 
         in the last five years.  He also stated that all carpal tunnel is 
 
         not caused by work.  When an employee reports an,injury or 
 
         distress to First Aid it does not necessarily mean it is work 
 
         related.  It may well have been something that occurred at home. 
 
          He received the claimant's accident and illness reports from Dr. 
 
         Manlove (Jt. Ex. 1) and Dr. Beaty (Jt. Ex. 5) and the statement 
 
         of claim (Def. Ex. 15), but none of these reports indicated a 
 
         work related injury.  Claimant did not seek the help of the 
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   4
 
         
 
         
 
         employer for carpal tunnel syndrome, but rather pursued it on her 
 
         own through her attorney.  Keller stated his first knowledge of a 
 
         claim for a work related injury was when he received the original 
 
         notice and petition.
 
         
 
              Claimant testified that she received payment of all of her 
 
         medical bills and also income disability payments through the 
 
         employer non-occupational group health plan and not through 
 
         workers' compensation payments.
 
         
 
              Claimant testified that she is now back to work and she is 
 
         doing the same job at the same pay.  Both hands ache most of the 
 
         time and pain goes up into her wrists, the left more than the 
 
         right.  She thinks her motion is the same as before but her hands 
 
         fatigue and get tired easier.  She does not get paid by the 
 
         piece.  She still goes to First Aid to get her hands wrapped.  
 
         She is not seeing a doctor now.
 
         
 
              Dr. Beaty, the treating physician, stated generally that the 
 
         etiology of carpal tunnel syndrome is not clear.  Repetitive 
 
         trauma is considered to be one cause, however, the vast majority 
 
         of cases are idiopathic.  The type of work claimant did could be 
 
         a cause of carpal tunnel syndrome.  Dr. Beaty made the following 
 
         specific determination with respect to the claimant's carpal 
 
         tunnel syndromes:
 
         
 
         
 
              MY Position in this case is basically this: that Mrs. Carter 
 
              is working in a job activity which would involve a 
 
              repetitive trauma to the palms of the hand.  This either 
 
              caused or aggravated carpal tunnel syndromes necessitating 
 
              the surgery which she has subsequently undergone.
 
              (Jt. Ex. 9)
 
         
 
              Dr. Beaty did not indicate whether claimant suffered any
 
              permanent impairment or not and he did not give a permanent 
 
              impairment rating.
 
         
 
              Claimant was examined by William F. Blair, M.D., of the 
 
         Division of Hand Surgery of the University of Iowa Hospitals and 
 
         Clinics, Department of Orthopaedic Surgery on September 18, 1984.  
 
         He made the following report on September 28, 1984:
 
         
 
              Mrs. Carter described to us ten years of employment on the 
 
              production line at Oscar Mayer prior to the development of 
 
              her symptoms which were consistent with carpal tunnel 
 
              syndrome.  The job of packing meat which she explained to us 
 
              appeared to require repetitive flexion and extension 
 
              activities of the wrist, while grasping packages.  Although 
 
              we would consider this to be a "idiopathic" type of carpal 
 
              tunnel syndrome, the prolonged and repetitive nature of her 
 
              job was a possible contributing factor.  It is possible that 
 
              the activities of the job either caused the syndrome or 
 
              aggravated [sic] to some degree a syndrome that would have 
 
              developed anyway.
 
         
 
              Mrs. Carter has recovered nicely from her surgical 
 
              procedures.  I would ascribe no impairment to either of her 
 
              hands as a result of her syndrome or surgeries.
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   5
 
         
 
         
 
              (Jt. Ex. 14)
 
         
 
              The defendants have pointed out that several of the 
 
         insurance forms completed by Dr. Manlove, Dr. Beaty and the 
 
         claimant either indicate that the carpal tunnel syndromes are not 
 
         work related or they do not answer this question.  This is true 
 
         and will be addressed in the discussion that follows.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on November 1, 1983 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa,
 
         
 
         
 
         249,Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties,
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971), 
 
         Musselman, 261 Iowa 352, 154 W.2d 128 (1967).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v  United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 1, 1983 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   6
 
         
 
         
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is-for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              Iowa Code section 85.23 provides:
 
         
 
              Unless the employer or his representative shall have actual 
 
              knowledge of the occurrence of an injury received within 
 
              ninety days from the date of the occurrence of the injury, 
 
              or unless the employee or someone on his behalf or a 
 
              dependent or someone on his behalf shall give notice thereof 
 
              to the employer within ninety days from the date of the 
 
     
 
         
 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   7
 
         
 
         
 
              occurrence of the injury, no compensation shall be allowed.
 
         
 
              In Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 548, 47 
 
         N.W.2d 236 (1951) it was determined that the 90 day period does 
 
         not begin to run until the employee finds out about or discovers 
 
         the injury.  Substantially the same rule in somewhat more detail 
 
         appears in Volume III, Larson, section 78.40, paragraph 15-155:
 
         
 
              The time period for notice or claim does not begin to run 
 
              until the claimant, as a reasonable person, should recognize 
 
              the nature, seriousness and probable compensable character 
 
              of his injury or disease.
 
         
 
              The rule in Jacques and the rule in Larson quoted above were 
 
         adopted and further clarified in Robinson v. Department of 
 
         Transp., 296 N.W.2d 809, 812 (Iowa 1980).  There the court said 
 
         the reasonableness of the claimant's conduct is judged in the 
 
         light of his or her own education and intelligence.  Claimant 
 
         must know enough about the injury to realize it is both serious 
 
         and work connected.
 
         
 
              McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 
 
         1985) not only judicially adopted the cumulative injury rule but 
 
         held that the date of occurrence of injury is when the employee 
 
         is no longer able to work due to the injury.
 
         
 
              Claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury on or 
 
         about November 1, 1983 which arose out of and in the course of 
 
         her employment with the employer.
 
         
 
              Her treating physician, Dr. Beaty, unequivocally stated that 
 
         claimant's job involved repetitive trauma to the palms of her 
 
         hands which either caused or aggravated the carpal tunnel 
 
         syndromes necessitating surgery (Jt. Ex. 9).  This evidence is 
 
         not refuted, rebutted, controverted or contradicted by any other 
 
         evidence.
 
         
 
              Dr. Blair stated that although he considered her carpal 
 
         tunnel syndrome to be "idiopathic"; nevertheless, the possible 
 
         repetitive nature of her job was a possible contributing factor.
 
         
 
         
 
         Idiopathic is interpreted to mean of unknown origin, but peculiar 
 
         to the individual for purposes of this decision.  Dr. Blair 
 
         stated it is possible that the activities of her job either 
 
         caused or aggravated her condition that would have developed 
 
         anyway.  Therefore, Dr. Blair does not dispute Dr. Beaty's 
 
         opinion, but rather says that it is possible that he is correct.
 
         
 
              The employment need only be a proximate contributing cause. 
 
          Musselman, 261 Iowa 352, 360, 154 N.W.2d 128, 132 (1967).  A 
 
         cause is proximate if it is a substantial factor in bringing 
 
         about a result.  It only needs to be one cause; it does not have 
 
         to be the only cause.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980).  It is difficult to say that the 
 
         same hand motions that are made by an employee seven hours a day, 
 
         five days a week for 17 years are not a substantial factor under 
 
         the facts of this case.
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   8
 
         
 
         
 
         
 
              Dr. Manlove did not give a definite opinion on causation by 
 
         way of a dictated report or a deposition.  Claimant testified 
 
         that Dr. Manlove told her that her work could have caused her 
 
         carpal tunnel.  However, he did not clarify in his opinion to her 
 
         personally whether it did, or whether it did not, cause it.  He 
 
         did not volunteer an opinion and she did not ask for one.  
 
         Therefore, what Dr. Manlove told the claimant does not definitely 
 
         support causation nor does it definitely negate causation.  If it 
 
         is anything other than neutral, it tends to support causation 
 
         rather than negate it for the reason that he took the risk to 
 
         tell her that her work could be a possible cause of her injury.  
 
         In any event, it does not controvert Dr. Beaty, the treating 
 
         surgeon, who plainly stated that her job either caused it or 
 
         aggravated it.
 
         
 
              In the illness and disability accident report signed by Dr. 
 
         Manlove on November 18, 1983, he did not check either the yes or 
 
         no block to the question of whether this was or was not an 
 
         occupational injury (Jt. Ex. 1).  On the group health claim form 
 
         signed by Dr. Manlove on November 27, 1983, there is an x marked 
 
         in the no block to the question of whether this condition is due 
 
         to an injury arising out of employment (Jt. Ex. 3).  These are 
 
         both routine insurance forms.  It is noted that the signature of 
 
         Dr. Manlove on each of these two forms is totally different, 
 
         which raises the inference that either one, or possibly both of 
 
         the signatures, do not belong to Dr. Manlove, but rather might be 
 
         the signature of one or more clerical assistants in his office 
 
         (Jt. Ex. 1 & 3).  Therefore, little or no weight can be given to 
 
         the probative value of either one of these forms on the issue of 
 
         causation.
 
         
 
              Dr. Beaty's combined bill and medical report for November 
 
         22, 1983, (claimant's first visit) says bilateral carpal tunnel 
 
         but did not check either the yes or no block behind the words 
 
         work related (Jt. Ex. 2).  The combined bill and report for the
 
         
 
         right carpal tunnel surgery on December 1, 1983, put an x in the 
 
         no block behind the words work related (Jt. Ex. 4).  The combined 
 
         bill and report for the left carpal tunnel surgery on January 18, 
 
         1983, also put an x in the no block behind the words work related 
 
         (Jt. Ex. 6).  None of these three forms is signed by Dr. Beaty or 
 
         anyone else.  The preparer of these forms is unknown.  Therefore, 
 
         these forms have little or no probative value.
 
         
 
              An illness and accident disability report dated December 21, 
 
         1983, for the right carpal tunnel syndrome (Jt. Ex. 5) and 
 
         another one dated January 31, 1984, for left carpal tunnel 
 
         syndrome (Jt. Ex. 7 ) both have an x in the no block, after the 
 
         words occupational injury.  Both of these forms bear Dr. Beaty's 
 
         signature, but the signature on each form is so perfectly 
 
         identical in every detail that it has to be a rubber-stamp 
 
         signature.  This raises the inference that both of these reports 
 
         were prepared by a clerical assistant rather than by Dr. Beaty 
 
         himself.  Therefore, they must be given very little or no weight 
 
         on the issue of causation.
 
         
 
              When Dr. Beaty did express his own personal, professional 
 
         medical opinion by dictating a letter which specifically 
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page   9
 
         
 
         
 
         addressed the subject of causation he clearly stated that the 
 
         claimant's job either caused or aggravated the carpal tunnel 
 
         syndromes that resulted in her surgeries (Jt. Ex. 9).
 
         
 
              Two more insurance forms which show by an x in the no block 
 
         behind the words occupational injury which are dated after Dr. 
 
         Beaty's dictated letter are also most likely done by clerical 
 
         assistants rather than the doctor who signed these forms (Jt. Ex. 
 
         11 & 12).  Therefore, they bear little or no weight on the issue 
 
         of causation.
 
         
 
              Consequently, it is found that claimant did sustain the 
 
         burden of proof by a preponderance of the evidence that she did 
 
         sustain an injury on or about November 1, 1983, which arose out 
 
         of and in the course of her employment with the employer as a 
 
         stacker in the slice pack department; that this injury is the 
 
         cause of temporary total disability on the dates stipulated by 
 
         the parties in the prehearing report; and that claimant is 
 
         entitled to temporary total disability benefits for these dates.
 
         
 
              Claimant introduced no medical evidence to prove the injury 
 
         was the cause of permanent disability.  Dr. Beaty was silent on 
 
         this matter.  He never mentioned it (Jt. Ex. 9).  Dr. Blair 
 
         definitely states that he would ascribe "no impairment to either 
 
         of her hands as a result of her syndrome and surgeries" (Jt. Ex. 
 
         14).  Consequently, the claimant has not sustained the burden of 
 
         proof by a preponderance of the evidence that she has suffered 
 
         any permanent disability or that she is entitled to any permanent 
 
         disability benefits.
 
              
 
              Defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that the claimant failed to give 
 
         notice as required by Iowa Code section 85.23.  Even though 
 
         claimant had pain in her palms, wrists and arms from 1981 to 
 
         1983, she testified that she did not know what it was.  She had 
 
         them wrapped at First Aid a number of times.  Apparently, the 
 
         medically trained people at First Aid did not know what it was 
 
         either, or if they did know, they chose not to tell her.
 
         
 
              All of the critical dates occurred within a 90 day period.
 
         
 
              The petition alleges an approximate injury date of November 
 
         1, 1983.  Claimant saw Dr. Manlove on November 10, 1983.  Dr. 
 
         Manlove told her that she had carpal tunnel and that it could 
 
         have been caused by work and sent her to Dr. Beaty.  Dr. Beaty 
 
         saw claimant for the first time on November 22, 1983, and 
 
         performed outpatient surgery on December 1, 1983 and again on 
 
         January 18, 1984.  The original notice and petition was signed 
 
         January 9, 1984, served January 16, 1984 and the first report of 
 
         injury was filed January 20, 1984.
 
         
 
              The best evidence of when claimant knew the nature of her 
 
         injury was when she saw Dr. Manlove and Dr. Beaty in November of 
 
         1983 and they told her that she had carpal tunnel syndrome.  The 
 
         best evidence of when she knew it was serious was after she saw 
 
         Dr. Beaty and he told her that she needed surgery which resulted 
 
         in her reporting the condition to the employer in order to obtain 
 
         medical and income disability benefits.  The best, and indeed the 
 
         only, evidence of when claimant considered the injury was work 
 
         related and compensable was when she served the original notice 
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page  10
 
         
 
         
 
         and petition on the defendant on January 16, 1984.  All of these 
 
         events occurred within a period of less then 90 days.
 
         
 
              In McKeever, 379 N.W.2d 368, 374 (Iowa 1985) the court not 
 
         only upheld the commissioner's adoption of the cumulative injury 
 
         rule, which applies to the facts in this case, but also found 
 
         that the injury occurs when the injury prevents the employee from 
 
         continuing to work.  In this case the injury occurred when 
 
         claimant ceased to work at Dr. Manlove's direction on November 
 
         14, 1983.  Notice of injury was given to the defendants when the 
 
         original notice and petition was served on January 16, 1984, 
 
         approximately two months later.  Consequently, claimant did give 
 
         notice by filing her petition within 90 days of when she 
 
         discovered the nature, seriousness and compensable nature of her 
 
         injury and also within 90 days of the occurrence of the injury 
 
         itself.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
              That claimant was employed by the employer on the date of 
 
         the injury as a stacker in the slice pack department.
 
         
 
              That the job of a stacker requires constant repetitive 
 
         motions with both hands everyday seven hours a day, five days a 
 
         week in a cold temperature environment of approximately 45 
 
         degrees.
 
         
 
              That the claimant has performed the same hand motions 
 
         repetitively for approximately 17 years.
 
         
 
              That Dr. Beaty, the treating physician and surgeon, found 
 
         that claimant's job either caused or aggravated her bilateral 
 
         carpal tunnel syndromes which required the surgeries on December 
 
         1, 1983 and January 18, 1984.
 
         
 
              That Dr. Blair, an evaluating physician, granted that 
 
         claimant's employment could have caused her bilateral carpal 
 
         tunnel condition.
 
         
 
              That claimant has proven by a preponderance of the evidence 
 
         that her bilateral carpal tunnel condition was caused by her 
 
         employment.
 
         
 
              That the parties stipulated that the claimant was off work 
 
         for this injury for the periods of time stipulated to in the 
 
         prehearing report.
 
         
 
              That no medical evidence was presented that indicated that 
 
         the claimant was permanently impaired.
 
         
 
              That Dr. Blair stated that the claimant was not permanently 
 
         impaired.
 
         
 
              That the injury occurred on November 14, 1983 when claimant 
 
         was forced to leave work and that she gave notice of the injury 
 
         by serving her petition on January 16, 1984.
 
         
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page  11
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That claimant sustained an injury on November 14, 1983 which 
 
         arose out of and in the course of her employment with the 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability on the 
 
         dates stipulated to in the prehearing report.
 
         
 
              That the injury was not the cause of any permanent 
 
         disability.
 
         
 
              That the claimant is entitled to temporary total disability 
 
         benefits for the dates stipulated to in the prehearing report.
 
         
 
              That the claimant is not entitled to any permanent 
 
         disability benefits.
 
         
 
              That claimant gave notice within 90 days of the occurrence 
 
         of the injury and also within 90 days of when she discovered the 
 
         nature, seriousness and compensable character of the injury.
 
         
 
                                      ORDER
 
         
 

 
         
 
         
 
         
 
         CARTER V. OSCAR MAYER FOODS CORPORATION
 
         Page  12
 
         
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant thirty-four point 
 
         eight-five-seven (34.857) weeks of temporary total disability for 
 
         the dates stipulated to at the rate of two hundred forty-nine and 
 
         05/100 dollars ($249.05) per week in the total amount of eight 
 
         thousand six hundred eighty-one and 14/100 dollars ($8,681.14), 
 
         less credit under Iowa Code section 85.38 as stipulated in the 
 
         prehearing report in the amount of six thousand eight hundred 
 
         seven and 86/100 dollars ($6,807.86).
 
         
 
              That the defendant pay the accrued benefits in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendant will pay the cost of this action in 
 
         accordance with Division of Industrial Services Rule 343-4.33, 
 
         formerly Iowa Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1.
 
         
 
              Signed and filed this 9th day of February, 1987.
 
         
 
         
 
         
 
         
 
                                             WALTER R.McMANUS, JR.
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Albert J. Stafne, Jr.
 
         Attorney at Law
 
         2535 Tech Drive, Suite 200
 
         Bettendorf, Iowa 52722
 
         
 
         Mr.:Richard M. McMahon
 
         Ms. Vicki L. Seeck
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1106; 1108.50;  1402.20
 
                                              1402.40; 1402.50;  1403.30
 
                                              1801; 1803; 2209; 2801; 2802 
 
                                              Filed February 9, 1987 
 
                                              WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PATRICIA A. CARTER,
 
         
 
              Claimant,
 
         
 
         VS.                                           FILE NO. 753620
 
         
 
         OSCAR MAYER FOODS CORPORATION,            A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1106; 1108.50; 1402.20; 1402.40; 1403.30; 1801; 1803
 
         
 
              Claimant performed the same repetitive hand movements seven 
 
         hours a day, five days a week, for approximately 17 years as a 
 
         stacker in the sliced meat department.  Treating physician stated 
 
         that two carpal tunnel surgeries, right and left, were either 
 
         caused by or aggravated by her work activities.  Evaluating 
 
         physician said her condition was idiopathic, but her work could 
 
         be a possible contributing factor.  Neither physician found any 
 
         permanent impairment.  Claimant found to have sustained an injury 
 
         arising out of and in the course of her employment and was 
 
         awarded TTD as stipulated and no PPD.
 
         
 
         1402.50; 2209; 2801; 2802
 
         
 
              Injury found to occur when it prevented her from working 
 
         (McKeever) on November 14, 1983.  Original notice and petition 
 
         served January 16, 1984.  Therefore, section 85.23 notice given 
 
         within 90 days of occurrence of the injury by filing workers' 
 
         compensation action.  Also, claimant found to have given notice 
 
         within 90 days of when she learned of the nature, seriousness and 
 
         compensability of the injury by filing workers' compensation 
 
         action. (Jacques, Larson, Robinson)
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VASILIOS KARRAS/KARYDAKIS,    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 717004
 
                                          :                753628
 
            ITT CONTINENTAL BAKING        :                753629
 
            CO., INC.,                    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant appeals from an arbitration decision denying 
 
            claimant disability benefits for alleged work injuries on 
 
            August 19, 1981, October 8, 1982 and March 15, 1983.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits 1 through 96.  Both 
 
            parties filed briefs on appeal. 
 
            
 
                                      issues
 
            
 
                 The issues on appeal are:
 
            
 
                   I.  Whether claimant suffered a work injury of March 
 
            15, 1983 which arose out of and in the course of claimant's 
 
            employment with the defendants?
 
            
 
                  II.  Whether the work injuries of August 19, 1981, 
 
            October 8, 1982 and March 15, 1983 are the cause of 
 
            permanent disability?
 
            
 
                 III.  Whether claimant is entitled to benefits for 
 
            permanent disability as a result of the alleged August 19, 
 
            1981, October 8, 1982, and March 15, 1983 work injuries?
 
            
 
                  
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            review of the evidence
 
            
 
                 The arbitration decision dated December 30, 1988 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  Applicable Law
 
            
 
                 The citations of the law in the arbitration decision 
 
            are appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant has had a number of work-related and 
 
            non-work-related accidents and injuries beginning in 1969 
 
            when he underwent a hemilaminectomy as a result of a work 
 
            injury.
 
            
 
                 2.  As early as 1975, treating physicians found 
 
            degenerative changes in claimant's cervical and lumber 
 
            spine.
 
            
 
                 3.  Since his 1969 injury claimant has never been pain 
 
            free and has seen a myriad of doctors complaining of 
 
            multiple symptoms from head to toe.
 
            
 
                 4.  Claimant sustained an injury arising out of and in 
 
            the course of his employment on August 19, 1981, when he 
 
            twisted his back while pulling out a metal shelf.
 
            
 
                 5.  Claimant sought medical treatment as a result of 
 
            the injury.
 
            
 
                 6.  Claimant suffers extensively from degenerative disc 
 
            disease and physicians could not, with any degree of medical 
 
            certainty, specify how claimant's injury of August 19, 1981 
 
            contributed to his present condition.
 
            
 
                 7.  Claimant sustained a temporary aggravation of a 
 
            preexisting condition as a result of the injury of August 
 
            19, 1981.
 
            
 
                 8.  Claimant sustained an injury arising out of and in 
 
            the course of his employment on October 8, 1982, when he 
 
            fell.
 
            
 
                 9.  Claimant sought medical treatment as a result of 
 
            the injury.
 
            
 
                 10. Claimant suffers extensively from degenerative disc 
 
            disease and physicians could not, with any degree of medical 
 
            certainty, specify how claimant's injury of October 8, 1982 
 
            contributed to his present condition.
 
            
 
                 11. Claimant sustained a temporary aggravation of a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            preexisting condition as a result of the injury of October 
 
            8, 1982.
 
            
 
                 12. Claimant injured his knee in November 1980 and 
 
            sought medical treatment therefor.
 
            
 
                 13. Claimant was diagnosed as having a tearing of the 
 
            medial meniscus which was found to be degenerative in 
 
            character.
 
            
 
                 14. Claimant alleged he injured his knee on March 15, 
 
            1983, the last day he worked for defendants.
 
            
 
                 15. The damages to claimant's knee could have occurred 
 
            as a result of normal wear and tear on the joint, with or 
 
            without a contributing injury.
 
            
 
                 16. Claimant's credibility is suspect.
 
            
 
                 17. Claimant has developed a fixation on his symptoms.
 
            
 
                 18. No casual connection exists between claimant's 
 
            alleged March 15, 1983 work injury and his knee problems.
 
            
 
                                conclusions of law
 
            
 
                 Claimant failed to prove that he sustained any 
 
            permanent partial disability as a result of the injury of 
 
            August 19, 1981.
 
            
 
                 Claimant failed to prove that he sustained any 
 
            permanent partial disability as a result of the injury of 
 
            October 8, 1982.
 
            
 
                 Claimant proved that he sustained a temporary 
 
            aggravation of a preexisting condition as a result of the 
 
            injuries of August 19, 1981 and October 8, 1982 for which he 
 
            has been compensated.
 
            
 
                 Claimant failed to prove that he sustained an injury 
 
            which arose out of and in the course of his employment on 
 
            March 15, 1983.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from this proceeding.
 
            
 
                 That claimant pays the costs of this appeal including 
 
            the costs of the transcription of the arbitration hearing.
 
            
 
                 That defendants pay all other costs of this proceeding 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David Gill
 
            Attorney at Law
 
            300 Badgerow Building
 
            P.O. Box 328
 
            Sioux City, Iowa 51102
 
            
 
            Mr. James M. Cosgrove
 
            Mr. M. James Daley
 
            Attorneys at Law
 
            1109 Badgerow Building
 
            P.O. Box 1828
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1402.30;5-1402.40;5-1801
 
                                          Filed August 31, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VASILIOS KARRAS/KARYDAKIS,    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 717004
 
            ITT CONTINENTAL BAKING        :                753628
 
            CO., INC.,                    :                753629
 
                                          :
 
                 Employer,                :        A P P E A L
 
                                          :
 
            and                           :      D E C I S I O N
 
                                          :
 
            ,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1402.30, 5-1402.40 and 5-1801
 
            Affirmed the deputy's decision which held that claimant 
 
            sustained a temporary total injuries on August 19, 1981 and 
 
            October 8, 1982 but failed to prove a permanent partial 
 
            disability as a result of the work injuries.  Claimant 
 
            failed to prove that he sustained an injury which arose out 
 
            of and in the course of his employment on March 15, 1983.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        KEVIN J. MOUDRY,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 753632
 
        
 
        PROTIVIN FIRE DEPARTMENT,           A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        IOWA MUTUAL AND TORNADO
 
        INSURANCE 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.
 
        
 
        Defendants appealed from an arbitration decision filed November 
 
        20, 1986, which found claimant sustained injuries in the nature 
 
        of burns and a fracture of the scaphoid bone in his left wrist on 
 
        November 26, 1982, which arose out-of and in the course of his 
 
        employment. The record on appeal consists of the transcript of 
 
        the hearing; joint exhibits 1 through 10, inclusive; claimant's 
 
        exhibits 11 through 20, inclusive; and, defendants' exhibit 21 
 
        and 22.
 
        
 
                                      ISSUES
 
                                                
 
        Defendants state the following issues on appeal:
 
        
 
        1. The deputy industrial commissioner erred in their July 14, 
 
        1986 order and the November 20, 1986 arbitration decision in 
 
        ruling that the defendants not be permitted to raise sections 
 
        85.23 or 85.26 issues as to a second injury which the claimant 
 
        had never plea; and,
 
        
 
        2. The deputy industrial commissioner in his order of November 
 
        20, 1986 erred by failing to rule that the claimant was barred 
 
        from recovery from a second injury for failure to give
 
        
 
        MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
        Page 2
 
        
 
        
 
        notice pursuant to section 85.23 or filing timely petition 
 
        pursuant to 85.26.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be fully set forth herein.
 

 
        
 
 
 
 
 
        
 
        Claimant, a member of the Protivin, Iowa volunteer fire 
 
        department, was responding to a fire alarm on November 26, 1982, 
 
        when he slipped and fell while running to the fire station. 
 
        Claimant felt pain in his left wrist but continued with his 
 
        duties as a fire fighter, entering a burning corn bin in order to 
 
        install a sweep auger. While he was handling the auger, it 
 
        tipped, pinning the fingers of his left hand to the floor causing 
 
        burns. Claimant was taken by ambulance to the hospital where his 
 
        burns were treated and where he complained of left wrist pain. It 
 
        was assumed claimant's wrist pain was a result of the burns and 
 
        no further inquiry of the pain was made at that time. 
 
        Approximately five months later claimant was still complaining of 
 
        left wrist pain. On June 6, 1983, his treating physician took 
 
        x-rays and discovered a fracture which eventually was treated 
 
        with a surgical fixation on January 7, 1985.
 
        
 
        Claimant filed an original notice and petition January 30, 1984 
 
        pleading an injury date of November 27, 1982, that the injury 
 
        occurred "responding to fire call on a grain bin" and that the 
 
        left index and middle fingers over the middle phalangeal joints 
 
        were the body parts affected or disabled. Claimant, obviously, 
 
        made no specific mention of the wrist fracture and at no time 
 
        amended his petition to specifically refer to the fracture.
 
        
 
        In its answer, defendants admitted the injury date and how the 
 
        injury occurred while denying the parts of the body affected or 
 
        disabled. Defendants raised no affirmative defenses in the 
 
        answer. Prehearings were held in this matter on October 31, 1984, 
 
        January 9, 1985, August 7, 1985 and May 13, 1986. On May 15, 
 
        1986,a hearing assignment order was entered which confined the 
 
        issues at hearing to whether claimant received an injury which 
 
        arose out of and in the course of employment; whether there is a 
 
        causal relationship between the alleged injury and the 
 
        disability; whether claimant is entitled to temporary total 
 
        disability or healing period benefits or permanent partial or 
 
        permanent total disability benefits; and, section 85.27 benefits. 
 
        On June 23, 1986 defendants filed an amendment to answer (and 
 
        concomitantly an Application to Modify Hearing Assignment Order) 
 
        stating:
 
        
 
        3. The respondent and insurance carrier assert the following 
 
        affirmative defenses, if, in fact, they represent affirmative 
 
        defenses.
 
        
 
        MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
        Page 3
 
        
 
        a) The employer and his representative did not have actual 
 
        knowledge of the occurrence of an injury received within 90 days 
 
        from the date of the occurrence of the injury, nor did the 
 
        employee or someone on his behalf give notice within 90 days of 
 
        the date of the occurrence of the injury pursuant to Code of Iowa 
 
        Section 85.23.
 
        
 
        b) Employee failed to commence original proceeding for benefits 
 
        within two years from the date of the occurrence of the injury 
 
        for which benefits are claimed in violation of Code of Iowa 
 
        Section 85.26(1).
 
        
 
        Defendants argued:
 
        
 
        1. Claimant has never plead or amended the original notice and 
 
        petition filed on 1-27-84 to raise the issue of a fractured 
 
        wrist to which the respondent/insurance carrier could raise 
 
        affirmative defenses.
 

 
        
 
 
 
 
 
        
 
        2. The respondent/insurance carrier's amendment to answer 
 
        represents an attempt to raise the issue of notice if in fact the 
 
        claimant does attempt to introduce evidence of an injury over and 
 
        above a burned hand.
 
        
 
        3. There is no prejudice to claimant, as the facts have been 
 
        known and cannot be altered on the issue of notice and what the 
 
        respondent/insurance carrier is attempting to do by amendment to 
 
        answer is to raise the issue well enough in advance of hearings 
 
        so the claimant cannot claim prejudice or surprise at the time of 
 
        hearing.
 
        
 
        On July 14, 1985, then Deputy Industrial Commissioner David E. 
 
        Linquist ruled:
 
        
 
        Defendants have failed to give claimant timely notice that they 
 
        were going to raise sections 85.23 or 85.26 as issues to be heard 
 
        at the time of hearing. The undersigned, at the time of 
 
        prehearing, asked the parties if they knew of any other issues. 
 
        Defendants had over two years to amend their answer but failed to 
 
        do so.
 
        
 
        Furthermore, it is apparent that defendants do not understand 
 
        that notice and the statute of limitations apply to an injury; 
 
        not any particular impairment that might result from the injury.
 
        
 
        MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
        Page 4
 
        
 
        
 
        WHEREFORE, defendants' amendment to the answer is not allowed. 
 
        Defendants' application to modify the hearing assignment order is 
 
        denied.
 
        
 
        At hearing, defendants again raised their objections to any 
 
        testimony on the wrist fracture stating:
 
        
 
        MR. BURNS: I am going to object to the testimony as to the 
 
        nonunion. Testimony of the nonunion is irrelevant and immaterial 
 
        in this case. It goes beyond the claimed injuries in the original 
 
        petition. The original petition claims injuries for a burn, for 
 
        left index and middle fingers of the phalangeal joints.
 
        
 
        He is claiming injuries from a separate time at a separate place. 
 
        It is not a claim brought by petition for other injuries, other 
 
        than the burns, and I object to the testimony. (Transcript, page 
 
        15)
 
        
 
        After some discussion, the hearing deputy ruled:
 
        
 
        THE COURT: This is an administrative proceeding, technical rules 
 
        of pleading generally don't apply here.
 
        
 
        I believe there is a Yeager versus Firestone case that is 
 
        authority for that proposition, among others. (Tr., p. 18)
 
        
 
        For that reason I am going to rule the claim for anything dealing 
 
        with the wrist fracture is properly before me for consideration, 
 
        even though it is not specifically pleaded.
 
        
 
        I find the defense has had knowledge that the claim for the wrist 
 
        fracture was made since June of '84 and has had adequate time to 
 
        perform whatever discovery or investigation it deemed 
 
        appropriate.
 
        
 

 
        
 
 
 
 
 
        For that reason, any and all objections to evidence dealing with 
 
        the wrist fracture as alleged as far as being relevant and 
 
        material, objections on that basis, are overruled, have been and 
 
        will continue to be. (Tr., p. 19)
 
        
 
        I believe there was a previous attempt to modify the answer to 
 
        cover the notice defense and statute of limitation defense. I 
 
        believe that attempt was
 
        
 
        MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
        Page 5
 
        
 
        
 
        overruled at that time and I am not inclined to reconsider or 
 
        otherwise modify or change a ruling made by another deputy 
 
        commissioner at an earlier time. So that prior ruling will stand. 
 
        (Tr., p. 20)
 
        
 
        The deputy held that this case dealt with two separate and 
 
        distinct injuries which arose out of the same occurrence and 
 
        concluded defendants were liable for both the burns and the 
 
        fractured wrist.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
        Division of Industrial Services Rule 343-4.22 dictates that the 
 
        deputy commissioner or industrial commissioner may enter an order 
 
        reciting any action taken at the prehearing conference or 
 
        pursuant to any other procedures prescribed which will control 
 
        the subsequent course of action relative to matters which it 
 
        includes, unless modified to prevent manifest injustice. 
 
        (Emphasis added) The hearing assignment order which was entered 
 
        in this matter advised the parties that only those issues listed 
 
        shall be considered at the hearing. Clearly the parties must have 
 
        been aware that any issue not listed would not be heard. This is 
 
        not only what the order dictates but has been the policy of the 
 
        industrial commissioner's, according to rule, for some time. In 
 
        Joseph Presswood v. Iowa Beef Processors (Appeal Decision filed 
 
        November 14, 1986), it was held that an issue not noted on the 
 
        hearing assignment order is an issue waived. The issues, namely 
 
        Iowa Code sections 85.23 and 85.26, were, without dispute, not 
 
        raised and were therefore waived.
 
        
 
        The above cited rule provides one exception: that of manifest 
 
        injustice. The question thus turns on whether it was a 
 
        demonstration of manifest injustice for the deputy to deny 
 
        claimant's application to modify the hearing assignment order. 
 
        This question must be answered in the negative.
 
        
 
        First, in Mefferd v. Ed Miller & Sons Inc., Thirty-third Biennial 
 
        Report of the Industrial Commissioner 191 (Appeal Decision 1977), 
 
        cited in Presswood, supra, it was held that failure to give 
 
        notice pursuant to Iowa Code section 85.23 is an affirmative 
 
        defense which therefore must be pled and which is subject to the 
 
        prehearing process. See also Reddick v. Grand Union Tea Co., 230 
 
        Iowa 108, 296 N.W. 800 (1941) which sets forth the rule for 
 
        dealing with affirmative defenses. By not even attempting to 
 
        amend its answer until after the prehearing process was complete 
 
        and a hearing assignment order was entered, defendants attempted 
 
        to obviate the entire process. There can be no abuse of 
 
        discretion where the deputies who ruled on the matter were 
 
        following the procedures governing pleadings.
 
        
 
        Secondly, defendants clearly had the opportunity to amend
 
        
 
        MOUDRY V. PROTIVIN FIRE DEPARTMENT
 

 
        
 
 
 
 
 
        Page 6
 
        
 
        
 
        its answer to raise the affirmative defense much sooner in the 
 
        contested case process and cannot now place the blame for its own 
 
        failures on alleged manifest injustice. Even accepting defendants 
 
        contentions that they were not aware claimant was seeking 
 
        recovery for the wrist fracture until claimant's answers to 
 
        interrogatories were served on June 1, 1984, this was almost two 
 
        years before the hearing assignment order was entered and, even 
 
        more interesting, five months before the first, of four, 
 
        prehearing conference was held. It cannot be considered 
 
        manifestly unjust to deny defendants' pleadings when they could 
 
        have acted for such a considerable period of time and, for 
 
        reasons not explained, elected not to.
 
        
 
        Defendants, therefore, clearly failed to comply with the rule of 
 
        pleading as found in Mefferd, supra, and pursuant to Division of 
 
        Industrial Services Rule 343-4.22 and Presswood, supra, waived 
 
        the issues of Iowa Code sections 85.23 and 85.26 for failing to 
 
        make them issues by the prehearing process. There was no error in 
 
        ruling defendants not be permitted to raise the issues.
 
        
 
        However, even if defendants had been permitted to raise the 
 
        defenses of Iowa Code sections 85.23 and 85.26, they would not be 
 
        entitled to prevail on the issue. The deputy correctly stated 
 
        that an application for arbitration of a claim for workers' 
 
        compensation is not a formal pleading and is not to be judged by 
 
        the technical rules of pleading; nor is the same conformity of 
 
        proof to allegation necessary as in ordinary cases, citing Yeager 
 
        v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 
 
        (1961). Claimant appropriately brought his action for injuries 
 
        resulting from "responding" to a fire call in November, 1982, 
 
        notwithstanding the wrist fracture was not mentioned. Claimant 
 
        did not limit his pleading to what occurred while he was fighting 
 
        the fire but sufficiently extended his allegation so as to 
 
        include his response time, i.e. the period of time it took to 
 
        arrive at the fire station. The parties went through months, 
 
        indeed years, of discovery. Claimant cannot be cited for failing 
 
        to amend his petition when there was no question, if not from the 
 
        original petition then from the interrogatories, he was claiming 
 
        benefits for the wrist fracture. Defendants, on the other hand, 
 
        aid not put claimant on any notice they might be claiming 85.23 
 
        and/or 85.26 as a defense until the proposed amendment to the 
 
        answer was filed.
 
        
 
        Further, the deputy specifically found claimant to be a credible 
 
        witness. Claimant testified he fell while running to the fire 
 
        house with Kenny Fencil, that he told Kenny his hand hurt and 
 
        that it must have happened from the fall. Claimant further 
 
        testified no one was "in charge" of the fire scene. Sufficient 
 
        notice was thus given to the employer. Dillinger v. City of Sioux 
 
        City, 368 N.W.2d 176 (Iowa 1985).
 
        
 
        MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
        Page 7
 
        
 
        
 
        There being no other errors cited and none being found, the 
 
        deputy's decision filed November 20, 1986, is affirmed.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. While responding to a fire call on November 20, 1982, claimant 
 
        fell fracturing his wrist while he was with another fire fighter.
 
        
 

 
        
 
 
 
 
 
        2. Claimant complained of wrist pain to other volunteers.
 
        
 
        3. Claimant later, while fighting the fire, sustained burns to 
 
        his left hand.
 
        
 
        4. Claimant filed an original notice and petition seeking 
 
        compensation for injuries sustained while responding to the fire 
 
        call and specifically listed his burn injury.
 
        
 
        5. Claimant made known to defendants, at the very latest, in 
 
        answers to interrogatories his intention to claim benefits for 
 
        the wrist fracture.
 
        
 
        6. A hearing assignment order was filed May 13, 1986, listing 
 
        arising out of and in the course of employment, etc., as the only 
 
        issues to be discussed at hearing pursuant to Division of 
 
        Industrial Services Rule 343-4.22.
 
        
 
        7. Defendants, on June 23, 1986, sought to amend its answer and 
 
        modify the hearing assignment order by adding Iowa Code sections 
 
        85.23 and 85.26 as issues.
 
        
 
        8. Claimant's motion to amend and application to modify were 
 
        denied.
 
        
 
        9. The hearing deputy denied defendants the opportunity to raise 
 
        Iowa Code sections 85.23 and 85.26 at the hearing.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        1. An issue not raised at the time of prehearing is an issue 
 
        waived at hearing absent manifest injustice.
 
        
 
        2. It cannot constitute manifest injustice to deny defendants the 
 
        opportunity to amend pleadings after orders are entered where 
 
        defendants had two years prior to the filing of orders to do so 
 
        and elected not to.
 
        
 
        Wherefore, the decision of the deputy is affirmed.
 
        
 
        MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
        Page 8
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant one and five-sevenths (1 5/7) weeks 
 
        of compensation for healing period at the rate of three hundred 
 
        seventy-nine and 16/100 dollars ($379.16) per week with 
 
        five-sevenths (5/7) weeks thereof being payable commencing 
 
        November 26, 1982 and with one (1) week thereof payable 
 
        commencing January 7, 1985.
 
        
 
        That defendants pay claimant twenty point nine (20.9) weeks of 
 
        compensation for permanent partial disability at the rate of 
 
        three hundred seventy-nine and 16/100 dollars ($379.16) per week 
 
        payable commencing January 14, 1985.
 
        
 
        That defendants pay all past due amounts in a lump sum together 
 
        with interest pursuant to section 85.30 for all amounts that were 
 
        unpaid at the time the same became due.
 
        
 
        That defendants pay claimant four thousand four hundred forty-one 
 
        and 48/100 dollars ($4,441.48) for medical and travel expenses 
 
        under section 85.27.
 

 
        
 
 
 
 
 
        
 
        That defendants pay the costs of this action including this 
 
        appeal pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants file claim activity reports as requested by this 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 16th day of August, 1988.
 
        
 
        
 
        
 
                                        DEBORAH A. DUBIK
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KEVIN J. MOUDRY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 753632
 
         PROTIVIN FIRE DEPARTMENT,
 
                                                        A P P E A L
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         IOWA MUTUAL AND TORNADO
 
         INSURANCE 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.
 
         
 
              Defendants appealed from an arbitration decision filed 
 
         November 20, 1986, which found claimant sustained injuries in the 
 
         nature of burns and a fracture of the scaphoid bone in his left 
 
         wrist on November 26, 1982, which arose out of and in the course 
 
         of his employment.  The record on appeal consists of the 
 
         transcript of the hearing; joint exhibits 1 through 10, 
 
         inclusive; claimant's exhibits 11 through 20, inclusive; and, 
 
         defendants' exhibit 21 and 22.
 
         
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  The deputy industrial commissioners erred in their July 
 
         14, 1986 order and the November 20, 1986 arbitration decision in 
 
         ruling that the defendants not be permitted to raise sections 
 
         85.23 or 85.26 issues as to a second injury which the claimant 
 
         had never pled; and,
 
         
 
              2.  The deputy industrial commissioner in his order of 
 
         November 20, 1986 erred by failing to rule that the claimant was 
 
         barred from recovery from a second injury for failure to give 
 
         notice pursuant to section 85.23 or filing timely petition 
 
         pursuant to 85.26.
 
         
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         PAGE   2
 
         
 
 
 
                               REVIEW OF THE EVIDENCE
 
                 
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be fully set forth 
 
         herein.
 
         
 
              Claimant, a member of the Protivin, Iowa volunteer fire 
 
         department, was responding to a fire alarm on November 26, 1982, 
 
         when he slipped and fell while running to the fire station.  
 
         Claimant felt pain in his left wrist but continued with his 
 
         duties as a fire fighter, entering a burning corn bin in order to 
 
         install a sweep auger.  While he was handling the auger, it 
 
         tipped, pinning the fingers of his left hand to the floor causing 
 
         burns.  Claimant was taken by ambulance to the hospital where his 
 
         burns were treated and where he complained of left wrist pain.  
 
         It was assumed claimant's wrist pain was a result of the burns 
 
         and no further inquiry of the pain was made at that time.  
 
         Approximately five months later claimant was still complaining of 
 
         left wrist pain.  On June 6, 1983, his treating physician took 
 
         x-rays and discovered a fracture which eventually was treated 
 
         with a surgical fixation on January 7, 1985.
 
         
 
              Claimant filed an original notice and petition January 30, 
 
         1984 pleading an injury date of November 27, 1982, that the 
 
         injury occurred "responding to fire call on a grain bin" and that 
 
         the left index and middle fingers over the middle phalangeal 
 
         joints were the body parts affected or disabled.  Claimant, 
 
         obviously, made no specific mention of the wrist fracture and at 
 
         no time amended his petition to specifically refer to the 
 
         fracture.
 
         
 
              In its answer, defendants admitted the injury date and how 
 
         the injury occurred while denying the parts of the body affected 
 
         or disabled.  Defendants raised no affirmative defenses in the 
 
         answer.  Prehearings were held in this matter on October 31, 
 
         1984, January 9, 1985, August 7, 1985 and May 13, 1986.  On May 
 
         15, 1986, a hearing assignment order was entered which confined 
 
         the issues at hearing to whether claimant received an injury 
 
         which arose out of and in the course of employment; whether there 
 
         is a causal relationship between the alleged injury and the 
 
         disability; whether claimant is entitled to temporary total 
 
         disability or healing period benefits or permanent partial or 
 
         permanent total disability benefits; and, section 85.27 benefits.  
 
         On June 23, 1986 defendants tiled an amendment to answer (and 
 
         concomitantly an Application to Modify Hearing Assignment Order) 
 
         stating:
 
         
 
              3.  The respondent and insurance carrier assert the 
 
              following affirmative defenses, if, in fact, they 
 
              represent affirmative defenses.
 
         
 
              a)  The employer and his representative did not have 
 
              actual knowledge of the occurrence of an injury 
 
              received within 90 days from the date of the occurrence 
 
              of the injury, nor did the employee or someone on his 
 
              behalf give notice within 90 days of the date of the 
 
              occurrence of the injury pursuant to Code of Iowa 
 
              Section 85.23.
 
         
 
              b)  Employee failed to commence original proceeding for 
 
              benefits within two years from the date of the 
 
              occurrence of the injury for which benefits are claimed 
 
              in violation of Code of Iowa Section 85.26(l).
 
         
 
              Defendants argued:
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         PAGE   3
 
         
 
         
 
         
 
              1.  Claimant has never plead or amended the original 
 
              notice and petition filed on 1-27-84 to raise the issue 
 
              of a fractured wrist to which the respondent/insurance 
 
              carrier could raise affirmative defenses.
 
         
 
              2.  The respondent/insurance carrier's amendment to 
 
              answer represents an attempt to raise the issue of 
 
              notice if in fact the claimant does attempt to 
 
              introduce evidence of an injury over and above a burned 
 
              hand.
 
         
 
              3.  There is no prejudice to claimant, as the facts 
 
              have been known and cannot be altered on the issue of 
 
              notice and what the respondent/insurance carrier is 
 
              attempting to do by amendment to answer is to raise the 
 
              issue well enough in advance of hearings so the 
 
              claimant cannot claim prejudice or surprise at the time 
 
              of hearing.
 
         
 
              On July 14, 1985, then Deputy Industrial Commissioner David 
 
         E. Linquist ruled:
 
         
 
                 Defendants have failed to give claimant timely 
 
              notice that they were going to raise sections 85.23 or 
 
              85.26 as issues to be heard at the time of hearing.  
 
              The undersigned, at the time of prehearing, asked the 
 
              parties if they knew of any other issues.  Defendants 
 
              had over two years to amend their answer but failed to 
 
              do so.
 
         
 
                 Furthermore, it is apparent that defendants do not 
 
              understand that notice and the statute of limitations 
 
              apply to an injury; not any particular impairment that 
 
              might result from the injury.
 
         
 
                 WHEREFORE, defendants' amendment to the answer is 
 
              not allowed.  Defendants' application to modify the 
 
              hearing assignment order is denied.
 
         
 
              At hearing, defendants again raised their objections to any 
 
         testimony on the wrist fracture stating:
 
         
 
              MR. BURNS:  I am going to object to the testimony as to 
 
              the nonunion.  Testimony of the nonunion is irrelevant 
 
              and immaterial in this case.  It goes beyond the 
 
              claimed injuries in the original petition.  The 
 
              original petition claims injuries for a burn, for left 
 
              index and middle fingers of the phalangeal joints.
 
         
 
              He is claiming injuries from a separate time at a 
 
              separate place.  It is not a claim brought by petition 
 
              for other injuries, other than the burns, and I object 
 
              to the testimony.
 
         (Transcript, page 15)
 
         
 
              After some discussion, the hearing deputy ruled:
 
         
 
              THE COURT:  This is an administrative proceeding, 
 
              technical rules of pleading generally don't apply 
 
              here.
 
         
 
              I believe there is a Yeager versus Firestone case that 
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         PAGE   4
 
         
 
         
 
              is authority for that proposition, among others.
 
              (Tr., p. 18)
 
         
 
              For that reason I am going to rule the claim for 
 
              anything dealing with the wrist fracture is properly 
 
              before me for consideration, even though it is not 
 
              specifically pleaded.
 
         
 
              I find the defense has had knowledge that the claim for 
 
              the wrist fracture was made since June of 184 and has 
 
              had adequate time to perform whatever discovery or 
 
              investigation it deemed appropriate.
 
         
 
              For that reason, any and all objections to evidence 
 
              dealing with the wrist fracture as alleged as far as 
 
              being relevant and material, objections on that basis, 
 
              are overruled, have been and will continue to be.
 
              (Tr., p. 19)
 
         
 
              I believe there was a previous attempt to modify the 
 
              answer to cover the notice defense and statute of 
 
              limitation defense.  I believe that attempt was 
 
              overruled at that time and I am not inclined to 
 
              reconsider or otherwise modify or change a ruling made 
 
              by another deputy commissioner at an earlier time.  So 
 
              that prior ruling will stand.
 
         (Tr., p. 20)
 
         
 
              The deputy held that this case dealt with two separate and 
 
         distinct injuries which arose out of the same occurrence and 
 
         concluded defendants were liable for both the burns and the 
 
         fractured wrist.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Division of Industrial Services Rule 343-4.22 dictates that 
 
         the deputy commissioner or industrial commissioner may enter an 
 
         order reciting any action taken at the prehearing conference or 
 
         pursuant to any other procedures prescribed which will control 
 
         the subsequent course of action relative to matters which it 
 
         includes, unless modified to prevent manifest injustice. 
 
         (Emphasis added).  The hearing assignment order which was entered 
 
         in this matter advised the parties that only those issues listed 
 
         shall be considered at the hearing.  Clearly the parties must 
 
         have been aware that any issue not listed would not be heard.  
 
         This is not only what the order dictates but has been the policy 
 
         of the industrial commissioner's, according to rule, for some 
 
         time.  In Joseph Presswood v. Iowa Beef Processors (Appeal 
 
         Decision filed November 14, 1986), it was held that an issue not 
 
         noted on the hearing assignment order is an issue waived.  The 
 
         issues, namely Iowa Code sections 85.23 and 85.26, were, without 
 
         dispute, not raised and were therefore waived.
 
         
 
              The above cited rule provides one exception: that of 
 
         manifest injustice.  The question thus turns on whether it was a 
 
         demonstration of manifest injustice for the deputy to deny 
 
         claimant's application to modify the hearing assignment order.  
 
         This question must be answered in the negative.
 
         
 
              First, in Mefferd v. Ed Miller & Sons Inc., Thirty-third 
 
         Biennial Report of the Industrial Commissioner 191 (Appeal 
 
         Decision 1977), cited in Presswood, supra, it was held that 
 
         failure to give notice pursuant to Iowa Code section 85.23 is an 
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         PAGE   5
 
         
 
         
 
         affirmative defense which therefore must be pled and which is 
 
         subject to the prehearing process.  See also Reddick v. Grand 
 
         Union Tea Co., 230 Iowa 108, 296 N.W. 600 (1941) which sets forth 
 
         the rule for dealing with affirmative defenses.  By not even 
 
         attempting to amend its answer until after the prehearing process 
 
         was complete and a hearing assignment order was entered, 
 
         defendants attempted to obviate the entire process.  There can be 
 
         no abuse of discretion where the deputies who ruled on the matter 
 
         were following the procedures governing pleadings.
 
         
 
              Secondly, defendants clearly had the opportunity to amend 
 
         its answer to raise the affirmative defense much sooner in the 
 
         contested case process and cannot now place the blame for its own 
 
         failures on alleged manifest injustice.  Even accepting 
 
         defendants contentions that they were not aware claimant was 
 
         seeking recovery for the wrist fracture until claimant's answers 
 
         to interrogatories were served on June 1, 1984, this was almost 
 
         two years before the hearing assignment order was entered and, 
 
         even more interesting, five months before the first, of four, 
 
         prehearing conference was held.  It cannot be considered 
 
         manifestly unjust to deny defendants' pleadings when they could 
 
         have acted for such a considerable period of time and, for 
 
         reasons not explained, elected not to.
 
         
 
              Defendants, therefore, clearly failed to comply with the 
 
         rule of pleasing as found in Mefferd, supra, and pursuant to 
 
         Division of Industrial Services Rule 343-4.22 and Presswood, 
 
         supra, waived the issues of Iowa Code sections 85.23 and 85.26 
 
         for failing to make them issues by the prehearing process.  There 
 
         was no error in ruling defendants not be permitted to raise the 
 
         issues.
 
         
 
              However, even if defendants had been permitted to raise the 
 
         defenses of Iowa Code sections 85.23 and 85.26, they would not be 
 
         entitled to prevail on the issue.  The deputy correctly stated 
 
         that an application for arbitration of a claim for workers' 
 
         compensation is not a formal pleading and is not to be judged by 
 
         the technical rules of pleading; nor is the same conformity of 
 
         proof to allegation necessary as in ordinary cases, citing Yeager 
 
         v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 
 
         (1961).  Claimant appropriately brought his action for injuries 
 
         resulting from "responding" to a fire call in November, 1982, 
 
         notwithstanding the wrist fracture was not mentioned.  Claimant 
 
         did not limit his pleading to what occurred while he was fighting 
 
         the fire but sufficiently extended his allegation so as to 
 
         include his response time, i.e. the period of time it took to 
 
         arrive at the fire station.  The parties went through months, 
 
         indeed years, of discovery.  Claimant cannot be cited for failing 
 
         to amend his petition when there was no question, it not from the 
 
         original petition then from the interrogatories, he was claiming 
 
         benefits for the wrist fracture.  Defendants, on the other hand, 
 
         did not put claimant on any notice they might be claiming 85.23 
 
         and/or 85.26 as a defense until the proposed amendment to the 
 
         answer was filed.
 
         
 
              Further, the deputy specifically found claimant to be a 
 
         credible witness.  Claimant testified he fell while running to 
 
         the fire house with Kenny Fencil, that he told Kenny his hand 
 
         hurt and that it must have happened from the fall.  Claimant 
 
         further testified no one was "in charge" of the fire scene.  
 
         Sufficient notice was thus given to the employer. Dillinger v. 
 
         City of Sioux City, 368 N.W.2d 176 ( Iowa 1985).
 
         
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         PAGE   6
 
         
 
         
 
              There being no other errors cited and none being found, the 
 
         deputy's decision filed November 20, 1986, is affirmed.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  While responding to a fire call on November 20, 1982, 
 
         claimant tell fracturing his wrist while he was with another fire 
 
         fighter.
 
         
 
              2.  Claimant complained of wrist pain to other volunteers.
 
         
 
              3.  Claimant later, while fighting the fire, sustained burns 
 
         to his left hand.
 
         
 
              4.  Claimant filed an original notice and petition seeking 
 
         compensation for injuries sustained while responding to the fire 
 
         call and specifically listed his burn injury.
 
         
 
              5.  Claimant made known to defendants, at the very latest, 
 
         in answers to interrogatories his intention to claim benefits for 
 
         the wrist fracture.
 
         
 
              6.  A hearing assignment order was filed May 13, 1986, 
 
         listing arising out of and in the course of employment, etc., as 
 
         the only issues to be discussed at hearing pursuant to Division 
 
         of Industrial Services Rule 343-4.22.
 
         
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         PAGE   7
 
         
 
         
 
              7.  Defendants, on June 23, 1986, sought to amend its answer 
 
         and modify the hearing assignment order by adding Iowa Code 
 
         sections 85.23 and 85.26 as issues.
 
         
 
              8.  Claimant's motion to amend and application to modify 
 
         were denied.
 
         
 
              9.  The hearing deputy denied defendant's the opportunity to 
 
         raise Iowa Code sections 85.23 and 85.26 at the hearing.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Ail issue not raised at the time of prehearing is an 
 
         issue waives at nearing absent manifest injustice.
 
         
 
              2.  It cannot constitute manifest injustice to deny 
 
         defendants the opportunity to amend pleadings after orders are 
 
         entered where defendants had two years prior to the filing of 
 
         orders to do so and elected not to.
 
         
 
              Wherefore, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant one and five-sevenths (1 5/7) 
 
         weeks of compensation for healing period at the rate of three 
 
         hundred seventy-nine and 16/100 dollars ($379.16) per week with 
 
         five-sevenths (5/7) weeks thereof being payable commencing 
 
         November 26, 1982 and with one (1) week thereof payable 
 
         commencing January 7, 1985.
 
         
 
              That defendants pay claimant twenty point nine (20.9) weeks 
 
         of compensation for permanent partial disability at the rate of 
 
         three hundred seventy-nine and 16/100 dollars ($379.16) per week 
 
         payable commencing January 14, 1985.
 
         
 
              That defendants pay all past due amounts in a lump sum 
 
         together with interest pursuant to section 85.30 for all amounts 
 
         that were unpaid at the time the same became due.
 
         
 
              That defendants pay claimant four thousand four hundred 
 
         forty-one and 48/100 dollars ($4,441.48) for medical and travel 
 
         expenses under section 85.27.
 
         
 
              That defendants pay the costs of this action including this 
 
         appeal pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.i.
 
         
 
         
 
              Signed and filed this 16th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         PAGE   8
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Richard R. Phillips
 
         Attorney at Law
 
         1235 West Meseto
 
         Mesa, Arizona 85210
 
         
 
         Mr. James Burns
 
         Attorney at Law
 
         301 W. Broadway
 
         P. O. Box 28
 
         Decorah, Iowa 52101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1600; 2900; 2901
 
                                                 Filed August 16, 1988
 
                                                 Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KEVIN J. MOUDRY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 753632
 
         PROTIVIN FIRE DEPARTMENT,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         IOWA MUTUAL AND TORNADO
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1600
 
         
 
              Pursuant to Mefford v. Ed Miller & Sons Inc., failure to 
 
         give notice under Iowa Code section 85.23 is an affirmative 
 
         defense which therefore must be pled and is subject to the 
 
         prehearing process.
 
         
 
         2900
 
         
 
              Pursuant to Division of Industrial Services Rule 343-4.22, 
 
         the hearing assignment order will control the subsequent course 
 
         of action relative to the hearing unless modified to prevent 
 
         manifest injustice.  Defendants sought to file an amended answer 
 
         and an application to amend hearing assignment order a short time 
 
         before hearing which was denied.  The hearing assignment order 
 
         which was entered did not include Iowa Code sections 85.23 and 
 
         85.26 as issues and therefore those issues were waived.  There 
 
         was no finding of manifest injustice where defendants clearly 
 
         have the opportunity to raise the affirmative defense sooner in 
 
         the contested case process and elected not to.
 
         
 
         2901
 
         
 
              Citing Yeager v. Firestone Tire & Rubber Co., an application 
 
         for arbitration of a claim for workers compensation is not a form 
 
         of pleading and is not to be judged by the technical rules of 
 
         pleading; nor is the same conformity of proof to allegation 
 
         necessary as in ordinary cases.  It was found claimant 
 
         sufficiently extended his allegations so as to include an injury 
 
         to the hand and one to the wrist.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KEVIN J. MOUDRY,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         PROTIVIN FIRE DEPARTMENT,                   File No. 753632
 
         
 
               Employer,                                0 R D E R
 
         
 
         and
 
         
 
         IOWA MUTUAL AND TORNADO
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
              As the undersigned was the one who filed the order of July 
 
         14, 1986 which is on appeal along with the arbitration decision 
 
         filed November 20, 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:
 

 
         
 
         
 
         
 
         MOUDRY V. PROTIVIN FIRE DEPARTMENT
 
         Page   2
 
         
 
         
 
         Mr. Richard R. Phillips
 
         Attorney at Law
 
         1235 West Meseto
 
         Mesa, AZ 85210
 
         
 
         Mr. James Burns
 
         Attorney at Law
 
         301 West Broadway
 
         P.O. Box 28
 
         Decorah, Iowa 52101