BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE MILBRODT,
 
         
 
              Claimant,
 
         
 
         vs.                                      File No. 778256
 
         
 
         ROBERTS DAIRY, INC.,                       A P P E A L
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on October 22, 1984.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits 1 through 22.  Both 
 
         parties filed briefs on appeal.  Defendants filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              1.  Can speculation as to whether the claimant will 
 
              lose his job with his employer at some time in the 
 
              future be used as a factor in determining industrial 
 
              disability?
 
         
 
              2.  If speculation as to whether the claimant will lose 
 
              his job with the employer is considered, is there 
 
              sufficient evidence to support an award of twenty-five 
 
              percent permanent partial disability to the body as a 
 
              whole?
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.  Defendants urge on appeal that the deputy industrial 
 
         commissioner based the decision in part on speculation as to 
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         PAGE   2
 
         
 
         
 
         claimant's future employment situation.
 
         
 
              In making a determination of industrial disability, a 
 
         distinction must be made between a loss of earnings and a loss of 
 
         earning capacity.  The fact that claimant's present job may be 
 
         less than secure involves speculation as to a possible future 
 
         loss of earnings.  A determination of industrial disability must 
 
         be made based on claimant's condition at the time of the hearing 
 
         and not on future events.
 
         
 
              A determination of industrial disability is based on a loss 
 
         of earning capacity.  In this regard, consideration is properly 
 
         given to what effect claimant's condition has on jobs he might 
 
         perform.  This is not speculation, as the focus is on the effects 
 
         of claimant's present condition.  Claimant's condition after the 
 
         injury, as compared to his condition before the injury, is 
 
         ascertainable at the time of the hearing and does not require 
 
         speculation.  The deputy industrial commissioner's decision 
 
         properly considered the effect of claimant's present condition on 
 
         his earning capacity.
 
         
 
              Defendants also urge that the award of 25 percent industrial 
 
         disability is not supported by the evidence.  The deputy 
 
         industrial commissioner's analysis in regard to this issue is 
 
         adopted.
 
                                 
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received an injury on October 20, 1984 arising 
 
         out of and in the course of his employment when he was crushed in 
 
         the pelvic area when his truck rolled and he was caught for 
 
         approximately 40 minutes.
 
         
 
              2.  Claimant was initially off work from the date of injury 
 
         to December 2, 1985 and then from March 26, 1986 to May 1, 1986 
 
         and then from June 16, 1986 to June 23, 1986 for medical 
 
         treatment and recuperation on account of his work injury.
 
         
 
              3.  As a. result of the work injury, claimant has a healed 
 
         fracture of the pelvis, a urethral tear, a bleeding duodenal 
 
         ulcer and ileus.
 
         
 
              4.  As a result of the urethral tear, claimant suffers from 
 
         impotence, incontinence and urethral stricture.
 
         
 
              5.  As a result of the urethral.stricture, claimant needs 
 
         intermittent dilation of his urethra and will likely require such 
 
         throughout his lifetime.
 
         
 
              6.  As a result of his urethral stricture, claimant is 
 
         likely to be more subject to urinary tract infection than would 
 
         the general population.
 
         
 
              7.  As a result of his urethral stricture, claimant has 
 
         problems with frequency of urination, often needing to urinate as 
 
         many as 12 to 15 times per day.
 
         
 
              8.  Claimant was 55 years old at the time of the hearing and 
 
         a high school graduate.
 
         
 
              9.  Claimant has no formal education beyond high school and 
 
         no training other than work experience.
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         PAGE   3
 
         
 
         
 
         
 
             10.  Claimant has worked predominantly in the dairy industry, 
 
         working in jobs ranging from night cleanup to pasteurizing room 
 
         operator to route and contract salesperson.
 
         
 
             11.  Claimant worked as a supervisor for approximately one 
 
         year before leaving such work.
 
         
 
             12.  Claimants earnings have increased slightly subsequent to 
 
         his injury.
 
         
 
             13.  Claimant returned to work at Roberts Dairy and continued 
 
         to work after the dairy's reorganization, an event which required 
 
         him to work longer hours.
 
         
 
             14.  Claimant has stiffness and fatigue following his longer 
 
         work hours.
 
         
 
             15.  Claimant discontinued his part-time job at the greyhound 
 
         track subsequent to his work injury.
 
         
 
             16.  Claimant's choice at the time of reorganization was 
 
         either to accept the larger route or to take a layoff.
 
         
 
             17.  Claimant's age, work experience and problems related to 
 
         his work injury decrease his job mobility.
 
         
 
             18.  Claimant is unlikely to be able to secure or obtain 
 
         employment at or near his present wage, should his job at Roberts 
 
         Dairy cease.
 
         
 
             19.  Claimant has not shown that his impotence is a factor 
 
         which affects his earning capacity, either physically or 
 
         psychologically.
 
         
 
             20.  Claimant has sustained a loss of earning capacity on 
 
         account of his work injury of 25 percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established a causal relationship between his 
 
         work injury of October 20, 1984 and his claimed permanent partial 
 
         disability.
 
              The arbitration decision filed May 27, 1988, did not 
 
         improperly rely on speculation.
 
         
 
              Claimant has sustained a permanent partial disability of 25 
 
         percent on account of his October 20, 1984 work injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant one hundred twenty-five (125) 
 
         weeks of permanent partial disability benefits with those 
 
         benefits to commence on December 2, 1985 and to be paid at the 
 
         applicable rate of three hundred twenty-five and 10/100 dollars 
 
         ($325.40).  Permanent partial disability benefits shall not be 
 
         payable during those periods following December 2, 1985 during 
 
         which claimant received healing period benefits.  Permanent 
 
         partial disability benefits shall again commence on the first 
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         PAGE   4
 
         
 
         
 
         date subsequent to each period during which claimant received 
 
         healing period benefits following December 2, 1985.
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to section 85.30.
 
         
 
              That defendants pay the costs of this action including the 
 
         costs of the transcription of the hearing proceeding.
 
         
 
              That defendants file claim activity reports as required by 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 31st day of October, 1988.
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. William Kevin Stoos
 
         Mr. Roger L. Carter
 
         Attorneys at Law
 
         300 Jackson Plaza
 
         P.O. Box 327
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803 - 2906
 
                                                 Filed October 31, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE MILBRODT,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 778256
 
         
 
         ROBERTS DAIRY, INC.,                         A P P E A L
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         1803 - 2906
 
         
 
              Held that deputy did not improperly engage in speculation 
 
         where award of benefits was based on consideration of loss of 
 
         earning capacity and was not based on possibility of future loss 
 
         of earnings from job loss.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE MILBRODT,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 778256
 
         
 
         ROBERTS DAIRY, INC.,                   A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Wayne Milbrodt, against his employer, Roberts Dairy, Inc., and 
 
         its insurance carrier, National Union Fire Insurance, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on October 20, 1984.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner at 
 
         Sioux City, Iowa on February 4, 1988.  A first report of injury 
 
         was filed on October 26, 1984.  At hearing, the parties 
 
         stipulated that claimant was entitled to temporary total 
 
         disability from October 20, 1984 through December 2, 1985; from 
 
         March 26, 1986 through May 1, 1986; and, from June 16, 1986 to 
 
         June 23, 1986.  They further stipulated that claimant has been 
 
         paid 64.37 weeks of either healing period or temporary total 
 
         disability benefits.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of Louis Welch as well as of joint exhibits 1 
 
         through 22 as identified in the submitted exhibit list.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         as stated above as to entitlement to causally related temporary 
 
         total disability benefits.  They further stipulated that claimant 
 
         did receive an injury arising out of and in the course of his 
 
         employment; that claimant's rate of weekly compensation is 
 
         $325.40; and, that claimant's entitlement to permanent partial 
 
         disability began on December 2, 1985, but for those intermittent 
 
         periods subsequent thereto in which he was entitled to temporary 
 
         total disability.  The issues remaining to be decided are whether 
 
         there is a causal relationship between claimant's injury and 
 
         permanent partial disability; and, whether claimant is entitled 
 
         to permanent partial disability benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 

 
         
 
              Claimant reported that he is 55 years old and married.  He 
 
         reported he graduated from high school in 1951, having taken 
 
         general courses only and has had no other formal education and 
 
         no military service.  Claimant's work history has predominantly 
 
         been in the dairy industry.  He began work for Roberts Dairy in 
 
         approximately 1953, originally working night clean up and later 
 
         working in the pasteurizing room as an operator and then as a 
 
         vacation reliefperson.  He eventually did supervisory work, 
 
         contract sales work and route sales.  Claimant continued in 
 
         route sales and was a route salesperson at the time of his 
 
         October 20, 1984 injury.  Claimant reported that, in October, 
 
         1984, he worked from approximately 6:30 a.m. until 4:00 p.m., 
 
         six days per week with a rotating day off during the week.  He 
 
         indicated that he had 25-30 stops per day with one of three 
 
         routes covering approximately 100 miles round trip and with two 
 
         routes consisting of approximately 150-160 miles round trip.  
 
         Claimant testified his job involved constant lifting of milk 
 
         cases weighing from 34-36 pounds as well as unloading and 
 
         offloading his delivery truck.  He reported that a two-wheeler 
 
         was used for loading, but that one had to push or pull with the 
 
         two-wheeler as well as maneuver it up and down stairs.  
 
         Claimant reported that he was a commissioned route salesperson 
 
         receiving a base pay of approximately $600 per month with 
 
         commission on milk of approximately 3 3/4 (percent), on cheese 
 
         and butter of approximately 1 3/4 (percent) and on filled 
 
         orders of approximately two percent.  Claimant's customers were 
 
         schools, grocery stores, cafes, nursing homes and like 
 
         institutions.  In October, 1984, claimant.was also working 
 
         part-time as a ticket salesperson at a local greyhound park 
 
         earning approximately $23-$24 per night, three or four nights 
 
         per week.  Claimant worked throughout the 1984 season and had 
 
         worked in this employment for a number of years.  Until 1973, 
 
         claimant had also worked at various automobile dealerships 
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page   3
 
         
 
         repairing used cars for the sales lot.
 
         
 
              On October 20, 1984, claimant was injured when he 
 
         attempted to place a brick under a wheel of his running truck.  
 
         Claimant was subsequently off work until December 2, 1985 when 
 
         he returned to his route sales position.  Claimant continues to 
 
         undergo medical treatment periodically for problems with his 
 
         urethra.
 
         
 
              In January, 1986, Roberts Dairy merged three routes into 
 
         two with claimant's route then consisting of two days of 
 
         "country run" and three days of "city routes."  Claimant 
 
         reported that he continues to start work at 3:30 a.m., but that 
 
         his afternoon quitting time varies from 1:30 to 6:00 or 7:00 
 
         p.m.  Claimant indicated that Wednesday is his day off, but 
 
         that he generally works part of that day picking up empty cases 
 
         and dealing with invoices.  Claimant reported that his country 
 
         route is now approximately 220-230 miles per day.  He 
 
         characterized his work as the same, even though the route 
 
         itself has changed.  Claimant stated that he has pain and 
 
         always feels stiff in the pelvic region. he indicated he has to 
 
         urinate as many as 12-15 times per work day.  Claimant 
 
         described himself as very tired at day's end.  He reported that 
 
         he attempted to work at his former ticket sales job in Summer, 
 
         1986, but was unable to do so as he could not stand all night 
 
         long.  Claimant agreed that he works longer hours at the dairy 
 
         than he had prior to his injury and that his earnings at the 
 
         dairy are greater than they had been prior to his injury.  
 
         Claimant agreed that he does the same yard work at home as he 
 
         had done prior to his injury.  Claimant has had no medically 
 
         placed restrictions on lifting, standing, or other activity.
 
         
 
              Louis Welch testified that he is branch manager of the 
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page   4
 
         
 
         Sioux City Roberts Dairy and has worked for the company for 21 
 
         years.  He reported that, in his position, he has to maintain 
 
         sales and is in charge of sales and product distribution.  Mr. 
 
         Welch previously worked as a route sales supervisor, a sales 
 
         manager and a relief driver.  He reported that he still runs 
 
         his route salespersons' routes while the workers are on 
 
         vacation or have days off.  Welch reported that he knows 
 
         claimant both from work and socially and that he sees claimant 
 
         daily.  He reported that he has seen claimant since the 
 
         accident and has on occasion ridden claimant's route with him.  
 
         Mr. Welch reported that he had not observed differences in 
 
         claimant's work performance since his accident.  He 
 
         characterized claimant as doing a real good job and as having 
 
         the biggest route.  Mr. Welch characterized claimant's route 
 
         since his injury as a tough route and indicated that he himself 
 
         could not do the route as fast as claimant can do it.  Welch 
 
         reported that claimant's total earnings in 1983 were $25,367.56 
 
         and that claimant's total earnings in 1984 were $21,912.01.  
 
         Welch reported that claimant's route earned $26,402.82 in 1984. 
 
          Welch reported that claimant's total earnings in 1986 were 
 
         $23,128.29 with claimant's route earning $25,231.66.  Claimant 
 
         was oft two months on account of his injury in 1984 and was off 
 
         one month in 1986.  Welch reported that claimant's earnings in 
 
         1987 were $27,435.04. All earnings were as reflected on exhibit 
 
         18.  Welch reported that there have been base pay increases 
 
         since claimant's injury, one in February, 1987 and a second in 
 
         February, 1988, each equalling approximately $20 per month.  
 
         Welch indicated that claimant's earnings as reported on his W-2 
 
         statement and as reported on his commission sales statement 
 
         might be discrepant since earnings in December of one year 
 
         would not result in a settlement check until the following 
 
         year.  Commission statements for 1983, 1984, 1986 and 1987 were 
 
         reviewed.
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page   5
 
         
 
         
 
              Welch reported that he and claimant had cut wood during 
 
         the fall of 1987 using a chain saw and carrying the wood from 
 
         the wood lot to a truck.  Welch stated that claimant did not 
 
         complain about cutting and that both were tired when they were 
 
         done because it was hard work.  Welch indicated that claimant 
 
         had told him he had tried to continue work at ticket sales, but 
 
         had been too tired to do so.  He reported that claimant did not 
 
         say why, but that he kind of knew why as he had run claimant's 
 
         route.
 
         
 
              R. L. Morgan, M.D., reported that claimant's final 
 
         diagnosis regarding his injury was a fracture of the pelvis, 
 
         secondary to trauma; a urethral tear; upper GI bleed, secondary 
 
         to stress ulcer; and, ileus.  Dr. Morgan reported that claimant 
 
         continued under the care of Robert A. Boldus, M.D., as regards 
 
         the complications of the urethral tear, reciting those as 
 
         impotence, incontinence and urethral stricture.  As of June 12, 
 
         1985, Dr. Morgan reported that claimant's recovery from his 
 
         urethral tear was not complete and that such would probably 
 
         produce permanent disability.  On August 7, 1986, Dr. Boldus 
 
         reported that claimant had a stricture of the bulbous urethra 
 
         which had been treated intermittently with stretching of the 
 
         area through dilation.  The doctor opined such had been 
 
         effective in keeping the claimant voiding in a normal pattern, 
 
         but stated he was certain that throughout his lifetime claimant 
 
         would intermittently need to have the stricture dilated.  The 
 
         doctor opined that the presence of the stricture would 
 
         certainly make claimant more susceptible to urinary tract 
 
         infection.  Dr. Boldus stated claimant had recently been 
 
         hospitalized with epididymitis, an infection of the urinary 
 
         tract.  Dr. Boldus stated it would be difficult to put a 
 
         percentage disability on such an injury, but stated he felt it 
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page   6
 
         
 
         could not be overlooked in settlement of the case.
 
         
 
              On May 1, 1987, Dr. Boldus reported that he had followed 
 
         claimant.for a long time concerning his difficulties with 
 
         impotence and had been attempting to make a reasonable estimate 
 
         of claimant's disability with his known urethral stricture and 
 
         his total loss of penile erectile function.  Dr. Boldus 
 
         reported he had written to a Dr. Richard Williams, chairman of 
 
         the department of urology at the University of Iowa and had, as 
 
         of that date, received his reply.  He then stated that it would 
 
         be reasonable that claimant would have a 50% "disability 
 
         impairment" with his known injuries.
 
         
 
              On March 4, 1985, Don E. Boyle, M.D., opined that claimant 
 
         developed a bleeding duodenal ulcer, secondary to the stress of 
 
         his accident and injuries.
 
         
 
         APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is the causal relationship issue.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 20, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (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 v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The parties do not appear to dispute seriously that 
 
         claimant's problems consisting of a healed fracture of the 
 
         pelvis, the urethral tear, the bleeding duodenal ulcer and the 
 
         ileus resulting from his work-related injury.  Likewise, they do 
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page   7
 
         
 
         not disagree that claimant has had complications from the 
 
         urethral tear, that is, impotence, incontinence and urethral 
 
         stricture requiring periodic dilation of the urethra.  Medical 
 
         reports of Drs. Morgan, Boldus and Boyle support the causal 
 
         relationship and are not contested in the record.  Hence, a 
 
         causal relationship is found.  The fighting issue then is the 
 
         nature and extent of claimant's permanent partial disability.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of, 
 
         earning capacity, but consideration must also be given to the 
 
         insured employeeOs age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page   8
 
         
 
              Claimant is 55 years old and has had a high school 
 
         education, but no other formal training.  His work experience has 
 
         been, virtually all in dairy work, beginning as a night cleanup 
 
         person going through pasteurization room operator to route and 
 
         contract sales.  Claimant also worked for approximately one year 
 
         as a supervisor.  Testimony would suggest that claimant felt that 
 
         position was not enjoyable and that he did not have the necessary 
 
         aptitude for supervisory work.  The evidence suggests that 
 
         claimant's overall earnings have increased slightly subsequent to 
 
         his work return following his injury when both gross earnings and 
 
         net settlements are considered.  Such has resulted due to a 
 
         reorganization at Roberts Dairy which increased claimant's route 
 
         sales work.  Claimant's alternative to participation in that 
 
         reorganization and taking on longer hours was to accept layoff, 
 
         however.  Claimant no longer works his part-time job at the local 
 
         greyhound track.  Defendants suggest that such was impossible, 
 
         given claimant's longer work hours at the dairy and did not 
 
         relate to any effects of claimant's injury.  Claimant testified 
 
         that increased fatigue and stiffness from the injury caused him 
 
         to no longer participate in such work.  The evidence suggests 
 
         that both are likely factors in claimant's decision to 
 
         discontinue his part-time work.  Claimant does not have medical 
 
         restrictions on lifting, standing or other activities.  He 
 
         apparently is able to satisfactorily perform his job duties with 
 
         Roberts Dairy.  Claimant requires intermittent dilation of his 
 
         urethra.  He also has a great susceptibility to urinary tract 
 
         infections than does the general population.  However, he has not 
 
         lost time from work on account of these conditions since June, 
 
         1986.  Claimant testified that he has a problem with frequency of 
 
         urination and that such requires him to make special 
 
         accommodations in order to carry out his route sales work.  
 
         Claimant also has problems with impotency.
 
         
 
              Nothing in the record suggests that claimant's urinary 
 
         frequency substantially interferes with claimant's ability to 
 
         perform his present job.  Unfortunately, it could well interfere 
 
         with claimant's ability to secure and maintain other employment, 
 
         should his job at Roberts Dairy cease to exist.  The evidence 
 
         does not suggest that such is a remote possibility.  Subsequent 
 
         to his injury, claimant had to participate in one reorganization 
 
         at the dairy and, as noted above, had the choice of working a 
 
         larger route or of being laid off.  Further reorganization, with 
 
         a similar choice, might well make claimant unable to continue 
 
         working, given claimant's problems with urinary frequency, his 
 
         age, and stiffness and fatigue subsequent to his pelvic fracture, 
 
         to which he testified.  Were such to happen, those factors, 
 
         coupled with claimant's lack of experience outside of the dairy 
 
         industry, could well impact on his ability to obtain or maintain 
 
         other employment at or near his present income.  As defendants 
 
         stress, claimant's increased earnings following his injury are a 
 
         factor to be considered in assessing any industrial disability.  
 
         We believe claimant's reduction in earning capacity would have 
 
         been substantially greater had the employer not returned him to 
 
         work.  We commend the employer for doing so.  Nevertheless,.that 
 
         factor must be balanced with other factors, including claimant's 
 
         lack of job mobility as a result of his injury, in determining 
 
         whether claimant's earning capacity has actually decreased on 
 
         account of his injury.  Claimant's inability to continue his 
 
         second job suggests a decrease in claimant's actual job options 
 
         following his injury.
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page   9
 
         
 
         
 
              Claimant stressed his impotence and suggested that such 
 
         should be considered in assessing industrial disability.  
 
         However, no evidence was introduced showing how the impotence 
 
         either physically or psychologically affects claimant's earning 
 
         capacity.  Without such, we are unable to consider the impotence 
 
         in assessing claimant's industrial loss on account of his injury.  
 
         Dr. Boldus is the only individual who supplied an impairment 
 
         rating.  He stated that claimant had a 50% "disability 
 
         impairment" on account of his urethral stricture and his 
 
         impotence.  The record does not suggest that Dr. Boldus consulted 
 
         the AMA guides in arriving at that rating.  Furthermore, it must 
 
         be discounted for impotence.  Similarly, permanent physical 
 
         impairment or functional impairment is not the same as industrial 
 
         loss.  Industrial loss is loss of earning capacity.  When all 
 
         factors noted above are considered, claimant's loss of earning 
 
         capacity on account of his injury results in a 25% permanent 
 
         partial disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant received an injury on October 20, 1984 arising out 
 
         of and in the course of his employment when he was crushed in the 
 
         pelvic area when his truck rolled and he was caught for 
 
         approximately 40 minutes.
 
         
 
              Claimant was initially off work from the injury to December 
 
         2, 1985 and then from March 26, 1986 to May 1, 1986 and then from 
 
         June 16, 1986 to June 23, 1986 for medical treatment and 
 
         recuperation on account of his work injury.
 
         
 
              As a result of the work injury, claimant has a healed 
 
         fracture of the pelvis, a urethral tear, a bleeding duodenal 
 
         ulcer and ileus.
 
         
 
              As a result of the urethral tear, claimant suffers from 
 
         impotence, incontinence and urethral stricture.
 
         
 
              As a result of the urethral stricture, claimant needs 
 
         intermittent dilation of his urethra and will likely require such 
 
         throughout his lifetime.
 
         
 
              As a result of his urethral stricture, claimant is likely to 
 
         be more subject to urinary tract infection than would the general 
 
         population.
 
         
 
              As a result of his urethral stricture, claimant has problems 
 
         with frequency of urination, often needing to urinate as many as 
 
         12-15 times per day.
 
         
 
              Claimant is 55 years old and a high school graduate.
 
         
 
              Claimant has no formal education beyond high school and no 
 
         training other than work experience.
 
         
 
              Claimant has worked predominantly in the dairy industry, 
 
         working in jobs ranging from night cleanup to pasteurizing room 
 
         operator to route and contract salesperson.
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page  10
 
         
 
         
 
              Claimant worked as a supervisor for approximately one year 
 
         before leaving such work.
 
         
 
              Claimant's earnings have increased slightly subsequent to 
 
         his injury.
 
         
 
              Claimant returned to work at Roberts Dairy and continued to 
 
         work after the dairy's reorganization, an event which required 
 
         him to work longer hours.
 
         
 
              Claimant has stiffness and fatigue following his longer work 
 
         hours.
 
         
 
              Claimant discontinued his part-time job at the greyhound 
 
         track subsequent to his work injury.
 
         
 
              Claimant's choice at the time of reorganization was either 
 
         to accept the larger route or to take a layoff.
 
         
 
              Claimant's job at Roberts Dairy is not wholly secure.
 
         
 
              Claimant's age, work experience and problems related to his 
 
         work injury decrease his job mobility.
 
         
 
              Claimant is unlikely to be able to secure or obtain 
 
         employment at or near his present wage, should his job at Roberts 
 
         Dairy cease.
 
         
 
              Claimant has not shown that his impotence is a factor which 
 
         affects his earning capacity, either physically or 
 
         psychologically.
 
         
 
              Claimant has sustained a loss of earning capacity on account 
 
         of his work injury of 25%.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established a causal relationship between his 
 
         work injury of October 20, 1984 and his claimed permanent partial 
 
         disability.
 
         
 
              Claimant has sustained a permanent partial disability of 25% 
 
         on account of his October 20, 1984 work injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant one hundred twenty-five (125) weeks 
 
         of permanent partial disability benefits with those benefits to 
 
         commence on December 2, 1985 and to be paid at the applicable 
 
         rate of three hundred twenty-five and 40/100 dollars ($325.40). 
 
         Permanent partial disability benefits shall not be payable during 
 
         those periods following December 2, 1985 during which claimant 
 
         received healing period benefits.  Permanent partial disability 
 
         benefits shall again commence on the first date subsequent to 
 
         each period during which claimant received healing period 
 

 
         
 
         
 
         
 
         MILBRODT V. ROBERTS DAIRY, INC.
 
         Page  11
 
         
 
         benefits following December 2, 1985.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file Claim Activity Reports as required by 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 27th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           HELEN JEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Alan D. Hallock
 
         Mr. William Kevin Stoos
 
         Attorneys at Law
 
         300 Jackson Plaza
 
         P.O. Box 327
 
         Sioux City, Iowa 51102
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1108 1803
 
                                                      Filed May 27, 1988
 
                                                      HELEN JEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE MILBRODT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File No. 778256
 
         ROBERTS DAIRY, INC.,
 
                                               A R B I T R A T I 0 N
 
               Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108, 1803
 
         
 
              Claimant awarded 25% permanent partial disability subsequent 
 
         to injury resulting in healed fractured pelvis and permanent 
 
         urinary stricture requiring intermittent urethral dilation and 
 
         resulting in very frequent urination and susceptibility to 
 
         urinary tract infection.  Impotence not considered in assessing 
 
         industrial loss as not shown to impact either physically or 
 
         emotionally on claimant's earning capacity.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EVERT McCARL,
 
         
 
              Claimant,
 
                                                   File No. 778922
 
         vs.
 
                                                 A R B I T R A T I O N
 
         FIRESTONE TIRE & RUBBER CO.,
 
                                                    D E C I S I O N
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      AUG 22 1989
 
         CIGNA/INA,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Evert McCarl, against Firestone Tire & Rubber Co., employer, and 
 
         Cigna/INA, insurance carrier, to recover benefits as a result of 
 
         an alleged injury on October 29, 1984.  This matter came on for 
 
         hearing before the deputy industrial commissioner in Des Moines., 
 
         Iowa, on June 28, 1989.  The record consists of the testimony of 
 
         claimant and joint exhibits 1 through 7.
 
         
 
                                    ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's alleged permanent disability is 
 
         causally connected to the October 29, 1984 injury; and
 
         
 
              2.  The extent of claimant's permanent disability.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified to the,various manual labor jobs he had 
 
         before he began as a banner-loader for defendant employer on 
 
         October 4, 1976.  Claimant described the various jobs he 
 
         performed for the employer up to the date of his alleged injury 
 
         on October 29, 1984.  Claimant stated his work prior to October 
 
         29, 1984 involved very physical work including loading rolls of 
 
         fabric rubber and building passenger and tractor tires.  Claimant 
 
         said these tires weigh from 50 to 100 pounds (car tires) and 120 
 
         to 130 pounds (tractor tires).  Claimant testified that two men 
 
         handle the heavier tires.  Claimant indicated these jobs involved 
 
         a lot of bending, twisting and pulling.
 
         
 
              Claimant indicated he had no injuries prior to October 29, 
 
                                                
 
                                                         
 
         1984, except for a carpal tunnel syndrome and hemorrhoids and has 
 
         had no injuries since October 29, 1984.  Claimant testified that 
 
         on the date of his injury, October 29, 1984, he was building 
 
         ten-ply dual bead truck tires.  Claimant said he bent over and 
 
         twisted to pull out a tire and felt a pain in his back.  Claimant 
 
         explained that when a tire is done it must be taken off the drum 
 
         at an angle by pulling the tire toward you.  Claimant said he 
 
         felt the pressure and pain when the tire was half off the drum, 
 
         and that he was getting it ready for the hoist to lift it.
 
         
 
              Claimant reported the incident to his supervisor and nurse 
 
         and was told to return to the work floor.  Claimant said the pain 
 
         down the lower.right side to his leg was so bad that he went 
 
         home. Claimant was off work for approximately seven months up to 
 
         May 30, 1985, except for one week when he attempted to work.  
 
         Claimant testified he attempted to return to work but Thomas A. 
 
         Carlstrom, M.D., would not release him to work so he went to 
 
         Marvin H. Dubansky, M.D., for a second opinion.  Dr. Dubansky 
 
         sent claimant to a pain clinic and for more therapy.  Claimant 
 
         said he then obtained a back brace and reported back to Dr. 
 
         Dubansky, who released him for light duty around June 13, 1985.  
 
         Claimant said his light duty job for several months consisted of 
 
         sweeping and scraping floors due to the rubber buildup.  Claimant 
 
         said he never went back to building tires, except he tried it 
 
         once.  Claimant said later in 1985 or 1986 his light duty work 
 
         involved picking up papers and instructing new workers on how to 
 
         build tractor tires.
 
         
 
              Claimant stated he also saw William R. Boulden, M.D., and 
 
         Scott B. Neff, M.D., in 1985 and 1986.  Claimant said he sought a 
 
         second opinion in Iowa City in reference.to Dr. Neff's opinion. 
 
         Claimant testified that the University of Iowa Hospital suggested 
 
         claimant go to an Iowa City pain center, which claimant refused 
 
         due to the driving and hotel expense.  Claimant said he went to a 
 
         six week Program at Mercy Hospital Pain Center, in Des Moines, 
 
         Iowa, which concluded around the first of the year 1987.  
 
         Claimant went back to work on May 4, 1987 as a production carder.  
 
         Claimant explained this job as basically counting and identifying 
 
         tires under a ten digit code.  Claimant said he must be able to 
 
         climb a ladder to see the side of a tire in order to obtain the 
 
         code number, but lifting is not required.  Claimant indicated he 
 
         can do this job, which pays $90 per day plus one-half hour 
 
         overtime and amounts to $100 per day.  Claimant compared this pay 
 
         rate to the $150 to $200 per day he would make if he were 
 
         physically able to perform his former tire building job.  
 
         Claimant emphasized the former tire building job paid $120 to 
 
         $130 at the time he was injured.  Claimant said his hourly wage 
 
         in 1984 was $15.30 per hour and that he is now making 
 
         approximately $10.45 per hour. Claimant said the physical 
 
         requirements of the tire building job are beyond the pain 
 
         clinic's restrictions and he could not now build tires.  Claimant 
 
         acknowledged that there was a $1.90 per hour wage decrease at 
 
         Firestone in May 1985 due to contract negotiations.  Claimant 
 
         admitted he has not seen a treating physician for his back since 
 
         May 1987.  Claimant emphasized that his present production 
 
                                                
 
                                                         
 
         carding job is a medically placed job and that the only way he 
 
         could lose this job would be if someone with higher seniority bid 
 
         on it.  Claimant said the company doctor placed him with his 
 
         permanent restriction in a medically placed job.  Claimant said 
 
         this means he can no longer build tires. Claimant said he has not 
 
         looked for work anywhere else.  Claimant indicated he presently 
 
         has low back pain and his symptoms have not changed.  Claimant 
 
         said he has a checkup once a year now.  Claimant stated that he 
 
         has had no back surgery and nobody has recommended it.
 
         
 
              Claimant testified that because of his injury on October 29, 
 
         1984, he does not fish or hunt anymore, cannot do a lot of yard 
 
         work, does not have a garden, cannot drive more than one-half 
 
         hour, and cannot mow his lawn.  Claimant did state he is the 
 
         assistant coach for his daughter's softball team but cannot be 
 
         very active physically.
 
         
 
              On November 11, 1984, an x-ray of claimant's thoracic spine 
 
         by Radiology, P.C., indicated:
 
         
 
              11/13/84 THORACIC SPINE:  There is slight anterior wedging 
 
              of the body of T5 and this apparently represents a recent 
 
              compression fracture.  The thoracic segments and interspaces 
 
              are otherwise normal.
 
         
 
              LUMBOSACRAL SPINE:  The bond and joint structures and the 
 
              intervertebral disc spaces are normal.
 
         
 
         (Joint Exhibit 1, page 28)
 
         
 
              Thomas A. Carlstrom, M.D., a neurosurgeon, saw claimant for 
 
         the last time on April 15, 1985, and wrote on June 17, 1985:
 
         
 
                   I saw Evert Mc Carl last on the 15th of April, 1985.  At 
 
              that time he was admitted for a complete myelogram which was 
 
              performed at Iowa Methodist Medical Center and was normal.  
 
              He had continued to experience pain up to that time and had a 
 
              normal bone scan, normal standing, flexion and extension 
 
              lumbosacral spine x-rays, and a normal SMA12.  It was my 
 
              conclusion at that time that the patient was experiencing 
 
              myofascial low back pain.
 
         
 
         (Jt. Ex. 1, p. 19)
 
         
 
              Dr. Carlstrom wrote on October 13, 1987:
 
         
 
                   I recently reviewed some material with respect to Mr. 
 
              Evert Frank McCarl and his low-back problem, which had been 
 
              generated by Dr. Scott Neff here in Des Moines.  I last saw 
 
              this patient in April of 1985.  At that time, he had been 
 
              hospitalized at Methodist Hospital for a myelogram, which 
 
              was normal.  Since then, Dr. Neff has seen him on numerous 
 
              occasions, and has performed a discogram, and has suggested 
 
              injections, and has discouraged any consideration for 
 
              surgery.  These conclusions are the same conclusions I 
 
                                                
 
                                                         
 
                   probably would have reached, based upon Dr. Neff's exams.
 
         
 
                   I think this patient is experiencing myofascial 
 
              symptoms.  On the last time I saw him, he had good range of 
 
              motion of his back, and therefore, probably does not warrant 
 
              an impairment rating, and I would think that the normal 
 
              duties of his occupation should be encouraged, rather than 
 
              discouraged.  He probably reached maximum benefits of 
 
              healing sometime in the Spring of 1985.
 
         
 
         (Jt. Ex. 1, p. 17)
 
         
 
              Dr. Carlstrom wrote on October 10, 1988:
 
         
 
                   His exam is the same, and basically is normal except 
 
              for mildly restricted motion in his low-back.
 
         
 
                   I think this patient is experiencing chronic myofascial 
 
              low-back pain.  I see little likelihood of any specific 
 
              treatment being significantly beneficial to him and would 
 
              recommend no further work-up or treatment.  I do think he 
 
              has suffered a small permanent impairment, and would rate 
 
              that at 2-3% of the body as a whole based upon slightly 
 
              diminished range of motion of his back.
 
         
 
                         
 
                                                         
 
         (Jt. Ex. 1, p. 17)
 
         
 
              Marvin H. Dubansky, M.D., wrote on June 18, 1985:
 
         
 
                   I feel that the SLR being positive at 30 degrees and 
 
              not being improved with flexion of the knees is rather 
 
              difficult to accept as this is not the usual thing, but then 
 
              having a sitting SLR to 90 degrees, I feel without question 
 
              it is difficult for me to accept this man's story as the 
 
              physical findings do not agree.  I told him that f there was 
 
              some difficulty in my trying to adjust all of the findings, 
 
              he didn't know what it would mean, and I said, well, it just 
 
              doesn't check out and I told him to check with the Medical 
 
              Department at Firestone.
 
         
 
                   At present, I think the statement I could make is that 
 
              I am unable to find any objective abnormality in 
 
              relationship to this man and his back.  I think there are 
 
              some questions in his physical examination that do not 
 
              balance out correctly.  As a consequence I have no further 
 
              recommendations for treatment.
 
         
 
         (Jt. Ex. 1, p. 13)
 
         
 
              Scott B. Neff, D.O., wrote on July 28, 1986, "I do not see 
 
         anything on the studies that could be directly related to the 
 
         work injury."  (Jt. Ex. 1, p. 3)
 
         
 
              James L. Blessman, M.D., noted on December 3, 1986, on the 
 
         Mercy Hospital Medical Center Pain Clinic records:  "IMPRESSION: 
 
         1.  Chronic myofascial low back strain with moderate depression 
 
         and symptom magnification."  (Jt. Ex. 1, p. 42)  Claimant entered 
 
         the pain clinic on November 28, 1986 and was discharged January 
 
         8, 1987.  The nurse's notes at the pain clinic on date of 
 
         discharge indicated that claimant stated, "I am able to be more 
 
         active; the pain I have is about the same.  I don't think it's 
 
         ever going to change."  (Jt. Ex. 1, p. 64)  On January 9, 1987, 
 
         Dr. Blessman's discharge summary reflects the principal diagnosis 
 
         as:  "Chronic Myofascial Strain of the Lumbar Spine," the 
 
         secondary diagnosis as:  "Associated Depression" and states:
 
         
 
                   The patient is a 38 year old male who had been havig 
 
              [sic] trouble with his low.back since October of 1984.  He 
 
              initially injured it at Firestone where he was building 
 
              tractor tires.  It was a twisting, lifting type of injury. 
 
              His first consultation was with Dr. Carlstrom, neurosurgeon 
 
              who treated,him with physical therapy and excercise [sic] 
 
              program.  He had him off work for about 7 months on 
 
              Workman's [sic] Compensation Disability.  He did finally 
 
              return to light duty and was able to work a few months on 
 
              light duty, then there was a plant shutdown and when he came 
 
              back to work this spring, he came back to work at full duty.  
 
              He had been having a considerable amount of pain and his 
 
              work status has to be reduced to limited or light duty.  
 
              Prior to his admission here he had had multiple evaluations 
 
                                                
 
                                                         
 
                   by Dr. Boulden, Dr. Dubansky and Dr. Leeman in Iowa City.  
 
              He had had discograms done, trigger point injections and CT 
 
              and MRI scans.  He had also had a myelogram.  All of these 
 
              were essentially within normal limits.  He had had multiple 
 
              trials with physical therapy including TENS and exercises 
 
              and steroid treatments and anti-inflammatory drugs.  A 
 
              number of previous physicians had noted symptom 
 
              magnification particularly by Dr. Leeman, Dr. Neff and Dr. 
 
              Dubansky and also Dr. Jones.  All surgeons had recommended 
 
              nonsurgical or conservative medical therapy.
 
         
 
         (Jt. Ex. 1, p. 39)
 
         
 
              On January 8, 1987, Thomas W. Bower, LPT, wrote to Dr. 
 
         Blessman:
 
         
 
                   Enclosed you will find our Return to Work Assessment 
 
              that was performed on Mr. Evert McCarl, on January 8, 1987.
 
         
 
                   You will note, that the patient's maximum efforts are 
 
              recorded and he is functioning at approximately the zero 
 
              percentile level when comparing this individual to healthy 
 
              industrial males.  With the low maximum efforts that have 
 
              been attained through this examination, we would not 
 
              recommend any frequency of activity, particularly of the 
 
              lifting type.  We see no other demonstrable restrictions 
 
              related to the upper body.
 
         
 
                   Most of these restrictions were obtained through the 
 
              BTE work simulator with the exception of stair climbing and 
 
              the obvious sitting and standing requirements.
 
         
 
         (Jt. Ex. 1, p. 32)
 
         
 
              Martin S. Rosenfeld, D.O., an orthopedic surgeon, examined 
 
         claimant on January 3, 1989, and wrote:
 
         
 
                   On examination straight leg raising is negative 
 
              bilaterally.  Motor, sensory, and reflexes are intact 
 
              bilaterally.  He is able to toe and heel walk.  He has 
 
              marked pain over the right ilio-lumbar ligament complex, 
 
              L5-S1 on the right.
 
         
 
                   X-rays show facet arthritis bilaterally.
 
         
 
                   Impression:  Chronic right facet syndrome.
 
         
 
                   According to the Manual of Orthopaedic Surgeons in 
 
              Evaluating Permanent Physical Impairment, I feel he has a 
 
              ten (10) percent physical impairment to the body as a whole 
 
              as a result of this injury and subsequent modifications of 
 
              activities that are necessary so that he can continue 
 
              working.
 
         
 
                   ....
 
                                                
 
                                                         
 
         
 
                   I feel that the diagnosis and prognosis of Mr. McCarl 
 
              as well as the permanent impairment rating is based upon his 
 
              injury of October 29, 1984 and would agree with the 
 
              limitations as prescribed by the Work Capacity Evaluation at 
 
              Mercy Hospital carried out when he was in the Pain Clinic.
 
         
 
         (Jt. Ex. 1, pp. 1-2)
 
         
 
              The restrictions to which Dr. Rosenfeld referred are:
 
         
 
              We did set him up for a work capacity evaluation prior to 
 
              discharge and I have limited him from lifting more than 30 
 
              pounds from floor to waist and carrying more than 20 pounds 
 
              or lifting over head more than 20 pounds, pushing 25 pounds 
 
              or pulling 15 pounds.  A copy of the work restrictions were 
 
              sent out to work with him.
 
         
 
         (Jt. Ex. 1, p. 40)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 29, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. 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 v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
                                                
 
                                                         
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability.  
 
              This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
         
 
                         
 
                                                         
 
              Claimant is a 40 year old high school graduate who has 
 
         worked for defendant employer for approximately 13 years.  The 
 
         eight years claimant worked for Firestone Tire & Rubber Co. prior 
 
         to his October 29, 1984 injury involved tire building, which is 
 
         considered heavy duty work.
 
         
 
              Claimant injured his back on October 29, 1984 at Firestone, 
 
         when he was pulling a tire off a drum to place it on a hoist. 
 
         Claimant described the twisting and bending required to perform 
 
         this task.  Claimant then felt a pain in his back.  Claimant had 
 
         no back injuries prior to October 29, 1984 and no new injuries 
 
         subsequent to October 29, 1984.  Claimant was off work due to his 
 
         injury for approximately seven months except for a week in which 
 
         he attempted to return to work and was unable to perform his 
 
         required duties.  Claimant returned to light duty work around the 
 
         end of May 1985.  Claimant presently is performing light duty 
 
         work as a production carder.  This job was medically prescribed 
 
         by defendant employer's doctor and involves no lifting.  The job 
 
         complies with claimant's permanent restrictions.  Claimant will 
 
         no longer be able to build tires.
 
         
 
              The evidence shows claimant is making approximately $10.45 
 
         per hour.  At the time of claimant's injury, he was making $15.30 
 
         per hour.  There was a $1.90 general reduction in hourly pay due 
 
         to contract negotiations in May 1985.  It would appear that the 
 
         actual hourly reduction in pay is approximately 22 percent.
 
         
 
              Firestone is to be congratulated for working with claimant. 
 
         Its cooperation in keeping claimant employed and providing a 
 
         light duty job has a material effect on the extent of claimant's 
 
         industrial disability.
 
         
 
              The greater weight of medical evidence indicates claimant 
 
         has a chronic myofascial strain of the lumbar spine.  No one 
 
         recommended surgery.  There is a degree of symptoms 
 
         magnification.
 
         
 
              Dr. Jones and Dr. Rosenfeld causally connected claimant's 
 
         chronic low back strain to his October 29, 1984 injury.  Dr. 
 
         Jones advised claimant to avoid heavy work and possibly think 
 
         about getting into another line of work.  Dr. Carlstrom, a 
 
         neurologist, opined a 2 to 3 percent impairment to claimant's 
 
         body as a whole. Dr. Rosenfeld, an orthopedic surgeon, opined a 
 
         10 percent physical impairment to claimant's body as a whole as a 
 
         result of claimant's injury and subsequent modifications of 
 
         activities that were necessary so that claimant could continue 
 
         working.  Dr. Rosenfeld agreed with the limitations prescribed by 
 
         the work capacity evaluation that Mercy Hospital carried out when 
 
         claimant was in the pain clinic.  These restrictions limit 
 
         claimant to lifting nothing in excess of 30 pounds from floor to 
 
         waist, carrying no more than 30 pounds, no lifting overhead more 
 
         than 20 pounds, and no pushing 25 pounds or pulling 15 pounds.
 
         
 
              It is obvious claimant can no longer perform his job as a 
 
         tire builder.  He has permanent restrictions which would prevent 
 
                                                
 
                                                         
 
         him from performing heavy duty jobs at Firestone or at any other 
 
         employer.  Claimant is fortunate to be able to have a light duty 
 
         job that is in the tire industry.  Claimant has a loss of 
 
         earnings caused by his job transfer.  A job transfer by the 
 
         employer after an injury to the body as a whole because of the 
 
         injury which results in an actual reduction in earnings justifies 
 
         an award of industrial disability.  Taking into consideration all 
 
         those items which aid in the determination of industrial 
 
         disability, the undersigned finds that claimant incurred a 
 
         reduction in earning capacity which is causally connected to his 
 
         October 29, 1984 injury.
 
         
 
              Claimant has a 20 percent industrial disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received a work-related low back injury on 
 
         October 29, 1984 which resulted in a permanent impairment to his 
 
         body as a whole.
 
         
 
              2.  Claimant's permanent restrictions are no lifting in 
 
         excess of 30 pounds from floor to waist, carrying no more than 20 
 
         pounds, no lifting overhead more than 20 pounds, no pushing 25 
 
         pounds or pulling 15 pounds.
 
         
 
              3.  Due to claimant's October 29, 1984 work injury, claimant 
 
         was transferred by his employer from heavy work (building tires) 
 
         to light duty work, complying with claimant's permanent 
 
         restrictions.
 
         
 
              4.  Claimant has a 20 percent reduction in earning 
 
                    capacity.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant's permanent impairment to his body as a whole is 
 
         causally connected to his injury of October 29, 1984.
 
         
 
              Claimant has permanent restrictions of no lifting in excess 
 
         of 30 pounds from floor to waist, carrying no more than 20 
 
         pounds, no lifting overhead more than 20 pounds, no pushing 25 
 
         pounds, or pulling 15 pounds.
 
         
 
              Claimant is limited to light duty work.
 
         
 
              Claimant has a 20 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant one hundred (100) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred sixty-four and 09/100 dollars ($364.09) commencing 
 
         January 13, 1987.
 
                                                
 
                                                         
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for benefits 
 
         previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 34-3.1.
 
         
 
              Signed and filed this 22nd day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St, Ste 500
 
         West Des Moines, IA  50265
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Ave
 
         Des Moines, IA  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
            
 
 
 
                                            5-1108; 5-1803
 
                                            Filed August 22, 1989
 
                                            Bernard J. O'Malley
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EVERT McCARL,
 
         
 
              Claimant,
 
                                                 File No. 778922
 
         vs.
 
         
 
         FIRESTONE TIRE & RUBBER CO.,          A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         CIGNA/INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant proved a work-related low back injury resulting in 
 
         a 20 percent industrial disability.  Claimant is limited to light 
 
         duty work.
 
         
 
         5-1108
 
         
 
              Claimant proved his permanent partial disability was 
 
         causally connected to his work injury.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        MICHAEL J. ULRICH,
 
        
 
            Claimant,                    File No. 779183
 
        
 
        vs.                                  A P P E A L
 
        
 
        UNICOVER, INC.,                    D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision in which claimant 
 
        was awarded permanent partial disability of seven percent of the 
 
        body as a whole as the result of his injury and in which claimant 
 
        was awarded healing period benefits from October 31, 1984 until 
 
        April 3, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding: claimant's exhibits 1 and 2; and, 
 
        defendant's exhibits A and B. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the issue on appeal as:
 
        
 
        Whether the deputy's award of healing period benefits only to 
 
        April 3, 1985 is supported by substantial evidence.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence. It will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Section 85.34(1), Code of Iowa, provides that healing period 
 
        benefits are payable to an injured worker who has suffered 
 
        permanent partial disability until (l) he has returned to work; 
 
        (2) is medically capable of returning to substantially similar 
 
        employment; or, (3) has achieved maximum medical recovery. The 
 
        industrial commissioner has recognized that healing period 
 
        benefits can be interrupted or intermittent. Willis v. Lehigh 
 
        Portland Cement Company, Vol. 2-1, State of Iowa Industrial 
 
        Commissioner Decisions, 485 (1984).
 
        
 
        ULRICH V. UNICOVER, INC.
 
        Page 2
 
        
 
        
 
        Continuing to receive medical care which is maintenance in nature 
 
        does not extend the healing period beyond the point where 
 
        claimant actually stopped improving. Armstrong Tire & Rubber Co. 
 
        v. Kubli, Iowa App., 312 N.W.2d 60 (Iowa 1981); Derochie v. City 
 
        of Sioux City, II Industrial Commissioner Report, 112 (1982) 
 

 
        
 
 
 
 
 
        District Court Appeal, remanded for settlement.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence is consistent with the above cited 
 
        law and is adopted. As the deputy noted, after April 3, 1985, Dr. 
 
        Johnson was basing his release of claimant on factors other than 
 
        claimant's physical condition. As stated, Dr. Johnson was basing 
 
        later releases on claimant's actually having a job. Availability 
 
        of work is not the criterion which determines the end of healing 
 
        period. Where claimant has not returned to his former employment 
 
        and is not capable of returning to substantially similar 
 
        employment, maximum medical healing is the point of termination 
 
        of healing period. The record as a whole supports the conclusion 
 
        that claimant reached maximum healing on April 3, 1985.
 
        
 
        As the parties have not challenged the deputy's determinations 
 
        regarding other issues, the findings of fact and conclusions of 
 
        law in the arbitration decision are adopted as set forth in that 
 
        decision and will not be further discussed herein.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        WHEREFORE, it is found:
 
        
 
        1. On October 31, 1984, claimant was injured while driving a 
 
        truck for defendant.
 
        
 
        2. As a result of that injury, claimant has no permanent 
 
        impairment.
 
        
 
        3. As a result of that injury, defendant fired claimant.
 
        
 
        4. Claimant has been released to return to work without 
 
        restrictions.
 
        
 
        5. Claimant could not return to any of his former employments.
 
        
 
        6. On May 2, 1986, claimant went back to driving a tractor on a 
 
        farm.
 
        
 
        7. On April 3, 1985, Dr. Johnson recommended that claimant go 
 
        back to work if appropriate work were found.
 
        
 
        8. After April 3, 1985, Dr. Johnson based releases of claimant on 
 
        factors other than claimant's physical condition, generally the 
 
        availability or potential availability of employment.
 
        
 
        ULRICH V. UNICOVER, INC.
 
        Page 3
 
        
 
        
 
        9. Dr. Johnson was claimant's treating physician.
 
        
 
        10. Dr. Carlstrom opined that claimant reached maximum benefits 
 
        of healing in summer, 1985.
 
        
 
        11. Per Dr. Emerson, claimant would not be able to drive at night 
 
        on account of his medication, he might be able to do reasonably 
 
        well in a job involving only daytime work.
 
        
 
        12. Dr. Carlstrom and Dr. Emerson were examining physicians.
 
        
 
        13. Defendant has paid for care Dr. Johnson provided claimant.
 
        
 
        14. Claimant showed no reason for requesting alternate care.
 

 
        
 
 
 
 
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        THEREFORE, it is concluded:
 
        
 
        1. Claimant has met his burden of proving a permanent partial 
 
        disability of seven percent as the result of his injury.
 
        
 
        2. Claimant is entitled to healing period benefits from October 
 
        31, 1984 until April 3, 1985.
 
        
 
        3. Dr. Johnson will remain authorized to treat claimant.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        Defendant pay claimant thirty-five (35) weeks of permanent 
 
        partial disability benefits at the rate of two hundred 
 
        sixty-eight and 90/100 dollars ($268.90) per week and twenty-two 
 
        (22) weeks of healing period benefits at the rate of two hundred 
 
        sixty-eight and 90/100 dollars ($268.90) per week.
 
        
 
        Defendant is given credit for benefits previously paid.
 
        
 
        Dr. Johnson will continue to be an authorized treating physician 
 
        for any medical care causally related to claimant's injury.
 
        
 
        Defendant will reimburse claimant eighty-six and 40/100 dollars 
 
        ($86.40) for mileage.
 
        
 
        Accrued benefits are to be paid in a lump sum together with 
 
        statutory interest at the rate of ten percent (10%) per year 
 
        pursuant to section 85.30, Code of Iowa, as amended.
 
        
 
        ULRICH V. UNICOVER, INC.
 
        Page 4
 
        
 
        
 
        Costs of the original proceeding are taxed to defendant pursuant 
 
        to Division of Industrial Services Rule 343-4.33 Claimant is 
 
        taxed costa of the appeal pursuant to the cited rule.
 
        
 
        Defendant shall file a final report upon payment of this award.
 
        
 
        Signed and filed this 29th day of November, 1988.
 
        
 
        
 
        
 
                                       HELENJEAN WALLESER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LYLE DAUGHETEE,
 
         
 
              Claimant,
 
                                                      File No. 779848
 
         VS.
 
                                                        A P P E A L
 
         JOHN DEERE DUBUQUE WORKS,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision denying 
 
         claimant all compensation because this matter is not ripe for 
 
         adjudication under Iowa Code chapter 85B.  The deputy held 
 
         claimant failed to prove by a preponderance of the evidence the 
 
         occurrence of one of the triggering events set forth in section 
 
         85B.8, The Code.  The deputy dismissed claimant's case without 
 
         prejudice.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 23; and 
 
         defendant's exhibits 24 through 28.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              Claim has not been filed within two years of transfer from 
 
         excessive noise level employment as required by Iowa Code SS85B.5 
 
         and SS85B.8.
 
         
 
              The statute of limitations manifests an intention to set a 
 
         definite limitation to the period within which compensation 
 
         proceedings may be commenced.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant is 47 years old and has been 
 
         employed by defendant for over 21 years.  His current job with 
 
         defendant is touch-up painting tractors.  Over the course of his 
 
         employment with defendant claimant has been exposed to noise 
 
         levels as high as 100 decibels. (See claimant's exhibit 20) The 
 
         following portion of claimant's exhibit 21 shows the duration and 
 
         extent of claimant's exposure to noise in his employment with 
 
         defendant since 1977:
 

 
         
 
         
 
         
 
         DAUGHETEE V. JOHN DEERE DUBUQUE WORKS
 
         Page   2
 
         
 
         
 
         
 
                                                   Noise           Reason
 
                                         Approx.  Exposure (dBA)     for
 
            Job                          No. of By Class.-By Dept  
 
         Leaving
 
         Description  Dept.    Dates       Days           Avg.      Dept.
 
         
 
         35  Manual    94   28 Jun 1976-   113      91            Job Bid
 
             Arc             9 Jan 1977
 
             Welder
 
         
 
         36  Painter  148   10 Jan 1977-   918      86            
 
         Optional
 
                            14 Dec 1980                           Leave
 
         
 
         37  Optional ---   15 Dec 1980-    56      --      --      ----
 
             Leave          15 Mar 1981
 
         
 
         38  Painter**148   16 Mar 1981-   135      78            Cutback
 
                            14 Nov 1982
 
         
 
         39  Auto.     10   15 Nov 1982-     5      88            Cutback
 
             Cutoff         21 Nov 1982
 
             Mach.
 
         
 
         40  Semi      20   22 Nov 1982-     8      86            Dis-
 
             Chuck           6 Dec 1982                           
 
         Qualified
 
             Mach.
 
         
 
         41  Flame    107    7 Dec 1982-    61      86            Return
 
             Cut            13 Mar 1983                            to
 
             Oper.                                                Classi-
 
                                                                  
 
         fication
 
         
 
         42  Painter   43   14 Mar 1983-   108      82            Return
 
                             7 Sep 1983                            to
 
                                                                  Classi-
 
                                                                  
 
         fication
 
         
 
         43  Painter***149   8 Sep 1983-   356      84            --
 
                             Present      (as of
 
                                          21 Jan
 
                                          1985)
 
         (Cl. Ex. 21)
 
         
 
              Claimant has had three audiograms since he became employed 
 
         with defendant.  The following are the results of those 
 
         audiograms:
 
         
 
                 Date             Percent Hearing Loss:  Total, Binaural
 
          
 
                 2/18/76                         17.8%
 
                12/01/82                         24.6%
 
                12/09/82                         24.6%
 
          
 
         (Defendant's Exs. 24, 25, 26)
 

 
         
 
         
 
         
 
         DAUGHETEE V. JOHN DEERE DUBUQUE WORKS
 
         Page   3
 
         
 
         
 
         
 
              Claimant does not recall having any audiograms performed 
 
         prior to his employment with defendant.  Claimant's exhibits 1 
 
         through 4 are medical reports of claimant's physical condition 
 
         prior to 1976.  There is no indication in these reports by 
 
         claimant or any medical examiner that claimant was suffering from 
 
         any hearing loss or difficulty at that time.
 
         
 
              Claimant states that his uncle on his mother's side suffered 
 
         a permanent hearing loss after contracting German Measles but no 
 
         other family members have had difficulties with their hearing.  
 
         Claimant states that he currently wears a hearing aid when he has 
 
         to go somewhere "that you got to hear" or where he has to listen 
 
         to a woman speak.  He does not wear a hearing aid at work.  
 
         However, he states that he does wear hearing protection at work 
 
         and has done so since December 1982 when James E. Spoden, M.D., 
 
         told him that he should wear hearing protection.
 
         
 
              Dr. Spoden conducted an audiogram on December 9, 1982.  He 
 
         opines that claimant has moderately-severe sensorineural hearing 
 
         loss.
 
         
 
              M. L. McClenahan, M.D., is the medical director for 
 
         defendant and has treated claimant for his hearing loss.  Dr. 
 
         McClenahan states that he advised claimant of his hearing loss on 
 
         December 6, 1982 both orally and in writing.  He states that he 
 
         told claimant that the hearing loss was probably sensorineural 
 
         but wanted confirmation from an expert.  Therefore, he referred 
 
         claimant to Dr. Spoden.  Dr. McClenahan states that he has no 
 
         knowledge that claimant's hearing loss is attributable to disease 
 
         or hereditary factors.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An occupational hearing loss is a sensorineural one which 
 
         arises out of and in the course of employment due to prolonged 
 
         exposure to excessive noise levels.  Excessive noise levels are 
 
         those which are capable of producing occupational hearing loss.
 
         
 
              The table in section 85B.5 lists times and durations which, 
 
         if met, will be presumptively excessive noise levels requiring 
 
         the employer to inform the employee of the existence of such 
 
         levels.   It is not a minimum exposure level necessary to 
 
         establish excessive noise levels.
 
         
 
              If the legislature had intended the tables to be the minimum 
 
         standard, the definition of excessive noise level in section 
 
         85B.4(2) could have easily so stated.  Morrision v. Muscatine 
 
         County, Iowa, Appeal Decision October 7, 1985.  See also Furry 
 
         v. John Deere Dubuque Works of Deere and Company, Appeal Decision 
 
         November 12, 1986.
 
         
 
              The preceding citations reveal the subsequent history of the 
 
         Morrison v. Muscatine County, Iowa, Declaratory Ruling which is 
 
         cited in the arbitration decision.
 
         
 
              Iowa Code section 85B.8 (1985) states:
 
         
 
                 A claim for occupational hearing loss due to excessive 
 

 
         
 
         
 
         
 
         DAUGHETEE V. JOHN DEERE DUBUQUE WORKS
 
         Page   4
 
         
 
         
 
              noise levels may be filed six months after separation from 
 
              the employment in which the employee was exposed to 
 
              excessive noise levels.  The date of the injury shall be the 
 
              date of occurrence of any one of the following events:
 
         
 
                 1.  Transfer from excessive noise level employment by an 
 
              employer.
 
         
 
                 2.  Retirement.
 
         
 
                 3.  Termination of the employer-employee relationship.
 
         
 
                 The date of injury for a layoff which continues for a 
 
              period longer than one year shall be six months after the 
 
              date of the layoff.  However, the date of the injury for any 
 
              loss of hearing incurred prior to January 1, 1981 shall not 
 
              be earlier than the occurrence of any one of the above 
 
              events.
 
         
 
              The mere requirement that an employee wear hearing 
 
         protection is not a Otransfer" within the meaning of section 
 
         85B.8(l).  Even though an employee may be required to wear 
 
         hearing protection, if he is still working in employment where he 
 
         is exposed to excessive noise levels, the cause of action is not 
 
         ripe.  When section 85B.8(l) is read in conjunction with 
 
         subsections (2) and (3) it is clear that the legislature 
 
         contemplated removal of the person from excessive noise level 
 
         employment.  To interpret the rule otherwise would raise a host 
 
         of collateral issues that would not otherwise arise such as 
 
         whether the requirement to wear hearing protection is enforced 
 
         and whether the hearing protection is adequate.  In Re 
 
         Declaratory Ruling of George Peters Filed March 5, 1986.
 
         
 
                                     ANALYSIS
 
         
 
              Defendant argues that claimant transferred from an 
 
         excessive
 
         noise level employment as defined in section 85B.5, The Code, in 
 
         1977, and therefore, claimant's action which was filed in 1984 is  
 
         not timely.  This argument relies on the assumption that the 
 
         tables set out in section 85B.5 are the minimum times and 
 
         intensities to which one must be exposed in order to produce an 
 
         occupational hearing loss.  This assumption is mistaken.
 
         
 
              The second argument which defendant makes on appeal concerns 
 
         the running of the statute of limitations on claimant's hearing 
 
         loss claim.  The statute of limitations on a hearing loss claim 
 
         runs from the date of the occurrence of one of the events set out 
 
         in 85B.8.  Since claimant has neither retired nor terminated his 
 
         employment with defendant, this case turns upon whether or not 
 
         there has been a transfer from excessive noise level employment. 
 
          In his decision the deputy stated:
 
         
 
                 The facts in this case show that claimant has suffered a 
 
              noise induced hearing loss.  This was Dr. McClenahan's 
 
              assessment which he confirmed with another medical expert 
 
              and an industrial hygienist.  Claimant was last exposed to 
 
              noise levels in excess of 90 dba in January 1977.  Since 
 
              that time claimant has been exposed to noise levels as high 
 

 
         
 
         
 
         
 
         DAUGHETEE V. JOHN DEERE DUBUQUE WORKS
 
         Page   5
 
         
 
         
 
              as 88 dba and as low as 78 dba.  He is presently working in 
 
              an environment with an average noise level exposure of 84 
 
              dba.
 
         
 
                 In addition, the record shows that in February 1976 
 
              claimant had a noise induced hearing loss of 17.8%. By 
 
              December 1, 1982 his noise induced hearing loss had 
 
              increased to 24.6%. Although Dr. McClenahan indicated that 
 
              this difference is medically insignificant, it is a 
 
              difference of almost eleven weeks of compensation and is 
 
              material to a determination under chapter 85B, The Code.  
 
              This increase in hearing loss indicates that claimant's 
 
              condition has not stabilized [sic) and that he continues to 
 
              be exposed to noise levels sufficient to produce hearing 
 
              loss.  The noise level exposure he has experienced at work 
 
              between 1977 and the present, although not above 90 dba, is 
 
              still significant and may well be the cause of the increased 
 
              hearing loss.  He has not been out of this high noise level 
 
              environment for more than six months.  Dr. McClenahan's 
 
              testimony that noise levels less than 80 dba is not likely 
 
              to produce noise induced hearing loss is not particularly 
 
              helpful.  Claimant's noise exposure has exceeded 80 dba for 
 
              all but 135 days in 1982.  This would have been for less 
 
              than six months.
 
         
 
              The deputy's factual determination that claimant has not 
 
              been transferred from excessive noise level employment by 
 
              defendant is accurate and it is adopted herein.
 
         
 
         
 
         
 
              As claimant has not established the occurrence of one of the 
 
         triggering events set out in section 85B.8 his claim is not ready 
 
         for adjudication.
 
         
 
              The findings of fact, conclusions of law and order are 
 
         adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has not terminated his employment with 
 
         defendant.
 
         
 
              2.  Claimant has not retired from his employment with 
 
         defendant.
 
         
 
              3.  Defendant has not transferred claimant from excessive 
 
         noise level employment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that six months has passed after one of the three 
 
         triggering events set forth in section 85B.8, The Code, and thus 
 
         this matter is not ripe for adjudication under chapter 85B, The 
 
         Code.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 

 
         
 
         
 
         
 
         DAUGHETEE V. JOHN DEERE DUBUQUE WORKS
 
         Page   6
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That this matter be and the same is hereby dismissed without 
 
         prejudice.
 
         
 
              That the costs of the arbitration proceeding are taxed 
 
         one-half to claimant and one-half to defendant and the costs of 
 
         the appeal, including the transcription of the hearing proceeding 
 
         is taxed to defendant.
 
         
 
         
 
              Signed and filed this 30th day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       DAVID E. LINQUIST
 
                                       ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Coyle
 
         Attorney at Law
 

 
         
 
         
 
         
 
         DAUGHETEE V. JOHN DEERE DUBUQUE WORKS
 
         Page   7
 
         
 
         
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Attorney at Law
 
         222 Fischer Building
 
         P.O. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     2208
 
                                                     Filed June 30, 1987
 
                                                     DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LYLE DAUGHETTE,
 
         
 
              Claimant,
 
                                                      File No. 779848
 
         VS.
 
                                                        A P P E A L
 
         JOHN DEERE DUBUQUE WORKS,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2208
 
         
 
              Defendant appealed from an arbitration decision which denied 
 
         claimant all compensation because this matter is not ripe for 
 
         adjudication under Iowa Code chapter 85B.  The deputy held that 
 
         claimant failed to prove by a preponderance of the evidence the 
 
         occurrence of one of the triggering events set forth in section 
 
         85B.8, The Code.  The deputy dismissed claimant's case without 
 
         prejudice.
 
         
 
              Defendant's argument that claimant transferred from 
 
         excessive noise level employment in 1977 and therefore, 
 
         claimant's action which was filed in 1984 is not timely.  This 
 
         argument was rejected as it relies on the mistaken assumption 
 
         that the tables set out in section 85B.5 are the minimum times 
 
         and intensities to which one must expose in order to produce an 
 
         occupational hearing loss.  See Morrison v. Muscatine County, 
 
         Appeal Decision, October 7, 1985.
 
         
 
              The deputy's factual determination that claimant has not 
 
         been transferred from excessive noise level employment by 
 
         defendant is accurate and it is adopted herein.