BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ________________________________________________________________
 
         
 
         FRANCIS MARION SHORT,
 
         
 
            Claimant,
 
                                                 File No. 779867
 
         VS.
 
                                                   A P P E A L
 
         ROADWAY EXPRESS,
 
                                                 D E C I S I 0 N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE  CASE
 
         
 
              Claimant appeals and defendant cross-appeals from an 
 
         arbitration decision awarding temporary total 
 
         disability,benefits, but denying permanent disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 and 2; and defendant's 
 
         exhibits A through 0 and Q. Both parties filed briefs on appeal.
 
         
 
                                  ISSUES
 
         
 
              Claimant states the issues on appeal are the nature and 
 
         extent of the disability and whether the issue of cumulative 
 
         injury was properly decided against claimant.  The defendant on 
 
         cross-appeal raises the additional issues of whether claimant 
 
         willfully intended to injure himself and whether the deputy erred 
 
         in failing to allow evidence post-hearing as offered by 
 
         defendant.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant has been employed by the defendant for nine years 
 
         and has worked out of the Fairfield terminal since 1979.  
 
         Claimant's principal work duties were to deliver and pick up 
 
         freight at Mount Pleasant and Washington, Iowa.  On November 21, 
 
         1984, while delivering three rolls of carpet, one of which 
 
         weighed 756 pounds, claimant injured his back.  When he 
 
         straightened up while lifting the roll of carpet with the 
 
         assistance of another person, he felt something go in his back 
 
         and he had pain down his right leg and in his right arm.  He was 
 
         assisted in moving the roll of carpet by employees of the store 
 
         which was receiving delivery. One of those persons noticed that 
 
         claimant had hurt himself while unloading the carpet.
 
         
 
              Koert R. Smith, M.D., first treated claimant as a patient 
 

 
         for a back injury in 1980.  He diagnosed claimant as having a 
 
         grade I spondylolisthesis with acute resolving strain.  He 
 
         provided care for claimant on November 27, 1984 when claimant 
 
         made a history of hurting his back on November 21, 1984.  At this 
 
         time, Dr. Smith diagnosed claimant as having a grade II 
 
         spondylolisthesis with a recent acute strain.  Dr., Smith 
 
         recommended bed rest, anti-inflammatory medication, and stated 
 
         that, in the long term, claimant would need a spinal fusion.  
 
         When seen on December 3, 1984, claimant reported reduced back 
 
         pain and stated that the aching pain in his legs was gone.  
 
         Motion of claimant's back was improving.  When seen on January 7, 
 
         1985, claimant indicated that he was getting along fairly well as 
 
         long as he did nothing heavy and took the Motrim medication as 
 
         prescribed.  Dr. Smith saw claimant two days prior to the date of 
 
         hearing and stated that claimant's condition had been unchanged 
 
         since he saw claimant on January 7, 1985.
 
         
 
              Dr. Smith defined spondylolisthesis as a defect that occurs 
 
         when bone is replaced by fibrous tissue or scarring which then 
 
         allows the front part of a vertebra to slip forward over the next 
 
         lower vertebra.  He stated that there are five grades of 
 
         spondylolisthesis and that the grades measure the amount of 
 
         slippage that has occurred.
 
         
 
              Dr. Smith testified at the arbitration hearing:
 
         
 
              Q.  What causes this defect?
 
         
 
              A. There can be a number of causes for spondylolysthesis 
 
              (sic], or the defect, to occur.  It can be an acute fracture 
 
              type of situation.  Far more commonly it's a developmental 
 
              condition that most likely begins sometime during the 
 
              growing years or adolescence.  Although no one knows for 
 
              sure, it is probably a stress fracture type of a situation.
 
         
 
         
 
         
 
              Q.  Okay. What do you feel the initial cause of the defect 
 
              in Marion's spine is?
 
         
 
              A.  I think, most likely, it was a developmental condition 
 
              that probably occurred sometime in his growing years.
 
         
 
              Q.  Does the type of work that a person does have an effect 
 
              on whether or not this defect develops further into a 
 
              spondylolysthesis [sic]?
 
         
 
              A.  Yes, I think it can.
 
         
 
         
 
              Q.  Excuse me.  Let me backtrack.  He would be more likely 
 
              to have the defect develop into a spondylolysthesis [sic]?
 
         
 
              A.  That's correct.  I think that the degree of slip--the 
 
              heavier the work he would be involved in, loading, unloading 
 
              trucks as opposed to a desk job, I think he would would be 
 
              more likely to have a progression of his slip.
 
         
 
         
 
         
 
              Q.  And you have no way of telling, by looking at the x-rays 
 
              themselves, exactly when that progression occurred?
 
         
 
              A.  Other than it's my opinion that most of the progression, 
 
     
 
         
 
         
 
         
 
         
 
         SHORT V. ROADWAY EXPRESS
 
         Page   3
 
         
 
         
 
              if not all of it, occurred between 1980 and 1984.  When 
 
              during that period, whether it was one sudden episode or 
 
              gradually over that four-year period of time, there is no 
 
              way to know.
 
         
 
         
 
         
 
              A.  My opinion is that the underlying defect of the 
 
              spondylolysthesis [sic] is a developmental problem that 
 
              preexisted his employment.  I think it's been significantly 
 
              aggravated by his work and his work injuries.
 
         
 
         
 
         
 
              Q.  And, other than the history that Mr. Short gave you on 
 
              that date, you can't determine when this progressive 
 
              slippage occurred, I gather?
 
         
 
              A.  As indicated in prior testimony, the only thing I can 
 
              say is that there was a significant increase in the slip, 
 
              from 1980 to 1984.  When during that time that occurred, I 
 
              can't tell.
 
         
 
         
 
         
 
              Q.  All right.  If I've understood what you've
 
         
 
              said, then, this morning, there is no question but that the 
 
              spondylolysthesis [sic] was a condition that predated this 
 
              incident of November, 1984?
 
         
 
              A.  That's correct.
 
         
 
              Q.  By at least 12 years, possibly more?
 
         
 
              A.  Yes.
 
              Q.  It's developmental in character and progressive in 
 
              character?
 
         
 
              A.  Yes.
 
         
 
              Q.  And it might have been a slowly progressive problem? 
 
              That's a possibility you can't rule out, if I understand 
 
              your testimony correctly?
 
         
 
              A.  My testimony is that the progression has occurred, based 
 
              on my review of the x-rays, between 1980 and 1984.
 
         
 
              Q.  But during that period, it may have been a slowly 
 
              progressive problem?
 
         
 
              A.  That's correct.
 
         
 
              Q.  All right.  And if I've understood the general dynamics 
 
              of this defect in the low back, any type of activity, or 
 
              activity in general, can cause such a progression?
 
         
 
              A.  That's a possibility.
 
         
 

 
         
 
         
 
         
 
         SHORT V. ROADWAY EXPRESS
 
         Page   4
 
         
 
         
 
         
 
         
 
              A.  I relate the progression of his spondylolysthesis [sic] 
 
              to his work, based on the history given to me, that at his 
 
              work he has to, on a repetitive basis, do heavy lifting, and 
 
              the two times that his back pain became severe enough that 
 
              he had to see a doctor, both of those episodes resulted from 
 
              injuries at work.
 
         
 
              Q.  Those would be the 1980 and 1984 incidents?
 
         
 
              A.  That's correct.
 
         (Transcript, pages 24-52)
 
         
 
              Martin F. Roach, M.D., indicated in his office notes 
 
              (defendant's Exhibit L):
 
         
 
              There definitely has been a change since his x-rays taken in 
 
              1980 in that the spondylolisthesis has progressed.  It is 
 
              difficult to say if this happened at one acute episode such 
 
              as his lifting.  However it is certainly possible.  More 
 
              likely it was probably a progressive increase in his 
 
              spondylolisthesis over the four year period.
 
         
 
         
 
         
 
                   I think he has a disability related to 
 
              spondylolisthesis but not related to this specific 
 
              incident.
 
         
 
              Two witnesses, Steve Lowe and Kenneth Watson, indicated that 
 
         claimant said to them, he would sure hate to have to hurt his 
 
         back on that carpet at Home Furniture the morning of the injury.  
 
         Claimant denies making that statement.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.  Additional citations 
 
         of law necessary to resolve issues raised on appeal follow.
 
         
 
              A statutory defense to compensation under the workers' 
 
         compensation law is found in Iowa Code section 85.16(l)(1983). 
 
         That section provides that there will be no compensation if an 
 
         injury is caused "[b]y the employee's willful intent to injure 
 
         himself." Employers have the burden of proving this affirmative 
 
         defense by the preponderance of the evidence.  Reddick v. Grand 
 
         Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941).
 
         
 
              Division of Industrial Services Rule 343-4.31 provides: "No 
 
         evidence shall be taken after the hearing."
 
         
 
                                  ANALYSIS
 
         
 
              The deputy correctly determined that the issue of cumulative 
 
         injury should not be considered.  The claim is not alleged in the 
 
         petition and in fact was not argued in the brief filed before the 
 
         deputy.  The deputy was correct in his determination that making 
 
         a finding on such an issue would be unfairly prejudicial to 
 

 
         
 
         
 
         
 
         SHORT V. ROADWAY EXPRESS
 
         Page   5
 
         
 
         
 
         defendant.
 
         
 
              The deputy in a ruling on motion to reopen overruled 
 
         defendant's motion to reopen the record and offer additional 
 
         evidence.  For the reasons given in that ruling the deputy was 
 
         correct in not allowing additional evidence.
 
         
 
              The defendant has the burden of proving by the preponderance 
 
              of the evidence that claimant's injury was caused by the 
 
              claimant's willful intent to injure himself.  The only 
 
              evidence in the record of willful intent are statements made 
 
              by claimant.  Claimant appears to have made statements which 
 
              may be interpreted to mean that he had an intent to injury 
 
              himself.  However, claimant was participating in a normal 
 
              work activity and was performing in a normal work manner 
 
              when the injury occurred.  Claimant's statement was a vague 
 
              one that may or may not have demonstrated his intention to 
 
              willfully injure himself.  Under these facts, the defendant 
 
              has not shown by the greater weight of evidence that 
 
              claimant had the willful intent to injure himself.
 
         
 
              Both Drs. Smith and Roach indicated that it was possible 
 
         that the lifting incident of November 21, 1984 may have produced 
 
         the progression from grade I to grade II spondylolisthesis, but 
 
         both indicated it was more likely that it occurred gradually.  
 
         The claimant has not proved that the injury of November 21, 1984 
 
         was the cause of the grade II spondylolisthesis and he is 
 
         therefore not entitled to receive any compensation for permanent 
 
         disability based upon that injury.
 
         
 
              The evidence indicates that the injury on November 21, 1984 
 
         was an acute strain of the back.  Claimant's back condition 
 
         resulting from the strain prevented him from working.  Recovery 
 
         from the strain was complete on January 7, 1985, for a period of 
 
         time.  Claimant's entitlement to temporary total disability 
 
         compensation ends on January 7, 1985.  There is no evidence in 
 
         the record that an injury to the elbow produced any disability 
 
         which required claimant to be absent from work.  Therefore, 
 
         claimant is not entitled to receive any compensation based upon 
 
         the alleged elbow injury.
 
         
 
              1.  On November 21, 1984 claimant was injured while 
 
         unloading carpet for defendant.
 
         
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from November 21, 1984 until 
 
         January 7, 1985.
 
         
 
              3.  On January 7, 1985 claimant became medically capable of 
 
         returning to employment substantially similar to that in which he 
 
         was engaged at the time of injury.
 
         
 
              4.  The credibility of the witnesses who testified at 
 
         hearing is not well established, except for the testimony of Dr. 
 
         Smith.
 
         
 
              5.  Of those lay persons who testified, Ed Kiesey and Ken 
 
         Watson are found to be the most credible.
 

 
         
 
         
 
         
 
         SHORT V. ROADWAY EXPRESS
 
         Page   6
 
         
 
         
 
         
 
              6.  Claimant is married and had three minor dependent 
 
         children on November 21, 1984.  Claimant's average weekly 
 
         earnings were $518.82 during the thirteen weeks preceding the 
 
         week of the injury.
 
         
 
              7.  Claimant incurred medical expenses with Orthopaedic and 
 
         Reconstructive Surgery Associates, P.C., in obtaining care which 
 
         was reasonable and necessary for the injury to his back in the 
 
         amount of $276.50.
 
         
 
              8.  Claimant has not shown that the alleged injury to his 
 
         elbow produced any disability of any type and he has likewise 
 
         failed to establish that the condition of his elbow was related 
 
         to the events of November 21, 1984.
 
         
 
              9.  Claimant's injury was an injury to his low back 
 
         superimposed upon preexisting spondylolisthesis.
 
         
 
              10.  Claimant's injury on November 21, 1984 resulted in no 
 
         permanent impairment.
 
         
 
              11.  On November 21, 1984, before leaving the terminal, 
 
         claimant did make a statement to the effect that he would hate to 
 
         hurt his back unloading the carpet.
 
         
 
              11.  Claimant's back injury has not been shown to have been 
 
         intentionally inflicted.
 
         
 
              12.  Claimant's spondylolisthesis made him highly 
 
         susceptible to injuries to his back.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              On November 21, 1984 the claimant sustained an injury to his 
 
         back which arose out of and in the course of his employment with 
 
         defendant.
 
         
 
              Claimant was temporarily totally disabled as a result of the 
 
         injury from November 21, 1984 through January 7, 1985.
 
         
 
              Claimant failed to prove he has any permanent disability 
 
         resulting from his November 21, 1984 injury.
 
         
 
              Claimant is entitled to recover medical expenses in the 
 
         amount of $276.50.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant six and six-sevenths (6 6/7) 
 
         weeks of compensation for temporary total disability at the rate 
 
         of three hundred twenty-one and 85/100 dollars ($321.85) per week 
 
         commencing November 21, 1984.  The entire amount thereof is past 
 
         due and owing and shall be paid to claimant in a lump sum 
 

 
         
 
         
 
         
 
         SHORT V. ROADWAY EXPRESS
 
         Page   7
 
         
 
         
 
         together with interest pursuant to section 85.30.
 
         
 
              That defendant pay claimant's medical expenses with 
 
         orthopaedic and Reconstructive Surgery Associates, P.C., in the 
 
         amount of two hundred seventy-six and 50/100 dollars ($276.50).
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, including expert 
 
         witness fees in the amount of one hundred fifty and 00/100 
 
         dollars ($150.00) for the testimony of Dr. Smith.
 
         
 
              That defendant file claim activity reports as requested by 
 
         the agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         Signed and filed this 31st day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Alan N. Waples
 

 
         
 
         
 
         
 
         SHORT V. ROADWAY EXPRESS
 
         Page   8
 
         
 
         
 
         Attorney at Law
 
         507 Tama Building
 
         Burlington, Iowa 52601
 
         
 
         Mr. Richard C. Garberson
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40-1403.30-1602-1801
 
                                            Filed December 31, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         FRANCIS MARION SHORT,
 
         
 
              Claimant,
 
                                                 File No.,779867
 
         VS.
 
                                                    A P P E A L
 
         ROADWAY EXPRESS,
 
                                                 D E C I S I 0 N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         _________________________________________________________________
 
         
 
         1402.40 -  1801
 
         
 
              Claimant had not proven that his back condition was a result 
 
         of an injury received on the job.  Claimant's disability was 
 
         temporary total and not permanent.
 
         
 
         1403.30 -  1602
 
         
 
              Defendant had not proved that claimant's injury was the 
 
         result of his willful intent to injure himself.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JOHN WILLARD,
 
        
 
            Claimant,                   File No. 779876
 
        
 
        vs.                                A P P E A L
 
        
 
        JOHN DEERE COMPONENT WORKS,      D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant appeals from an arbitration decision awarding claimant 
 
        permanent partial disability benefits under Iowa Code section 
 
        85.34(2)(s).
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 13. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendant states the following issues on appeal:
 
        
 
        I. Whether this proceeding is barred by the two-year statute of 
 
        limitations contained in Iowa Code  85.26(1).
 
        
 
        II. Whether the Deputy erred in finding that Claimant sustained 
 
        his burden of proving causal connection between his alleged 
 
        injury and his employment as a broach machine operator.
 
        
 
        III. Whether the Deputy erred in computing Claimant's award.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
        WILLARD V. JOHN DEERE COMPONENT WORKS
 
        Page 2
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law are appropriate to the issue and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The deputy's analysis of the evidence in conjunction with the law 
 
        is adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. In May 1984, claimant became disabled as a result of a wrist 
 
        problem.
 
        
 

 
        
 
 
 
 
 
        2. Claimant's wrist problem was in the nature of carpal tunnel 
 
        syndrome and degenerative joint disease.
 
        
 
        3. Claimant's problems with his wrists developed over a number of 
 
        years as a result of his employment activities.
 
        
 
        4. Claimant was required to be off work for healing purposes 
 
        following carpal tunnel release surgery and again following wrist 
 
        fusions.
 
        
 
        5. Claimant suffered permanent impairment equal to 32% of both 
 
        upper extremities as a result of his work injuries.
 
        
 
        6. Claimant's rate of compensation is $279.46.
 
        
 
        7. Claimant's problems with his wrists developed simultaneously.
 
        
 
        8. Claimant filed his claim for benefits in a timely manner.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has proven by a preponderance of the evidence that he 
 
        received an injury arising out of and in the course of his 
 
        employment.
 
        
 
        Claimant has proven by a preponderance of the evidence that there 
 
        is a causal relationship between his injury and the disability to 
 
        his upper extremities.
 
        
 
        Defendant failed to prove by a preponderance of the evidence that 
 
        claimant's cause is barred by the statute of limitations.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
        WILLARD V. JOHN DEERE COMPONENT WORKS
 
        Page 3
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay unto claimant healing period benefits 
 
        commencing with the first day he was off work because of his work 
 
        injury and continuing until he returned to work following carpal 
 
        tunnel release surgery.
 
        
 
        That defendant shall thereafter commence payment of one hundred 
 
        seventy (170) weeks of permanent partial disability at the rate 
 
        of two hundred seventy-nine and 46/100 dollars ($279.46) until 
 
        such time as claimant was again off work for wrist fusion 
 
        surgeries at which time healing period benefits shall recommence 
 
        until he again returned to work. The remaining permanent partial 
 
        disability entitlement shall then recommence.
 
        
 
        That defendant shall be given credit for healing period benefits 
 
        pursuant to section 85.38.
 
        
 
        That all accrued benefits shall be paid in a lump sum with 
 
        interest.
 
        
 
        That defendant shall pay the costs including the cost of the 
 
        transcription of the arbitration hearing.
 
        
 
        That defendant shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 

 
        
 
 
 
 
 
        343-3.1(2).
 
        
 
        Signed and filed this 14th day of September, 1988.
 
        
 
        
 
        
 
                                           DAVID E. LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN WILLARD,
 
         
 
              Claimant,                         File No. 779876
 
         
 
         vs.                                      A P P E A L
 
         
 
         JOHN DEERE COMPONENT WORKS,            D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         claimant permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(s).
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 1-3.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              I.  Whether this proceeding is barred by the two-year 
 
              statute of limitations contained in Iowa Code SS 
 
              85.26(l).
 
         
 
              II.  Whether the Deputy erred in finding that Claimant 
 
              sustained his burden of proving causal connection 
 
              between his alleged injury and his employment as a 
 
              broach machine operator.
 
         
 
              III.  Whether the Deputy erred in computing Claimant's 
 
              award.
 
         
 
                             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 are appropriate to the issue and 
 
         evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The deputy's analysis of the evidence in conjunction with 
 
         the law is adopted.
 
         
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         PAGE   2
 
                                
 
                                
 
                                FINDINGS OF FACT
 
         
 
              1.  In May 1984, claimant became disabled as a result of a 
 
         wrist problem.
 
         
 
              2.  Claimant's wrist problem was in the nature of carpal 
 
         tunnel syndrome and degenerative joint disease.
 
         
 
              3.  Claimant's problems with his wrists developed over a 
 
         number of years as a result of his employment activities.
 
         
 
              4.  Claimant was required to be off work for healing 
 
         purposes following carpal tunnel release surgery and again 
 
         following wrist fusions.
 
         
 
              5.  Claimant suffered permanent impairment equal to 32% of 
 
         both upper extremities as a result of his work injuries.
 
         
 
              6.  Claimant's rate of compensation is $279.46.
 
         
 
              7.  Claimant's problems with his wrists developed 
 
         simultaneously.
 
         
 
              8.  Claimant filed his claim for benefits in a timely 
 
         manner.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he received an injury arising out of and in the course of his 
 
         employment.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal relationship between his injury and the 
 
         disability to his upper extremities.
 
         
 
              Defendant failed to prove by a preponderance of the evidence 
 
         that claimant's cause is barred by the statute of limitations.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay unto claimant healing period benefits 
 
         commencing with the first day he was off work because of his work 
 
         injury and continuing until he returned to work following carpal 
 
         tunnel release surgery.
 
         
 
              That defendant shall thereafter commence payment of one 
 
         hundred seventy (170) weeks of permanent partial disability at 
 
         the rate of two hundred seventy-nine and 46/100 dollars ($279.46) 
 
         until such time as claimant was again off work for wrist fusion 
 
         surgeries at which time healing period benefits shall recommence 
 
         until he again returned to work.  The remaining permanent partial 
 
         disability entitlement shall then recommence.
 
         
 
              That defendant shall be given credit for healing period 
 
         benefits pursuant to section 85.38.
 
         
 
              That all accrued benefits shall be paid in a lump sum with 
 
         interest.
 
         
 
              That defendant shall pay the costs including the cost of the 
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         PAGE   3
 
         
 
         
 
         transcription of the arbitration hearing.
 
         
 
              That defendant shall file claim activity reports as required 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1(2).
 
         
 
              Signed and filed this 14th day of September, 1988.
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette St
 
         P.O. Box 2634
 
         Waterloo, IA 50704
 
         
 
         Mr. John W. Rathert
 
         Attorney at Law
 
         620 Lafayette St
 
         Waterloo, IA 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50; 1402.30; 2402
 
                                            Filed September 14, 1988
 
                                            David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN WILLARD,
 
         
 
              Claimant,                          File No. 779876
 
         
 
         vs.                                       A P P E A L
 
         
 
         JOHN DEERE COMPONENT WORKS,             D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108.50; 1402.30
 
         
 
              Deputy's decision was affirmed that claimant had proved his 
 
         bilateral carpal tunnel syndrome and degenerative joint disease 
 
         arose out of and in the course of his employment of 20 years.  
 
         Medical evidence established a causal connection between work 
 
         injury and disability.  Claimant suffered a permanent impairment 
 
         of 32% of both upper extremities.
 
         
 
         2402
 
         
 
              Deputy's decision was also affirmed that defendant had 
 
         failed to prove claimant's original action was barred by the 
 
         statute of limitations.  The appropriate date of claimant's 
 
         injury under McKeever was the date which claimant was first 
 
         required to be off work as a result of his condition.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JOHN WILLARD,
 
                                                 File No. 779876
 
              Claimant,
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         JOHN DEERE COMPONENT WORKS,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by John Willard, 
 
         claimant, against John Deere Component Works, a self-insured 
 
         employer, for the recovery of benefits as the result of an 
 
         alleged injury on or about February 6, 1984.  This matter was 
 
         heard before the undersigned at the courthouse in Waterloo, 
 
         Blackhawk County, Iowa on March 11, 1987.  It was considered 
 
         fully submitted at the conclusion of the hearing.
 
         
 
              The record consists of the testimony of claimant, Teresa J. 
 
         Willard, James R. Taylor, Ron Stuber, Bill Winters, John 
 
         Michaloff, George Ritland and James Zahn; the parties jointly 
 
         submitted exhibits 1 through 13.  All objections to the 
 
         introduction of exhibits are hereby overruled.
 
         
 
                           STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the pre-hearing report and order approving same, 
 
         the parties stipulated that there was an employer-employee 
 
         relationship in existence at the time of the alleged injury.  It 
 
         is disputed as to whether or not the claimant did, in fact, 
 
         receive an injury.  It is also disputed as to whether or not the 
 
         injury produced either temporary disability or permanent 
 
         disability.  It is stipulated that, if the claimant did suffer an 
 
         injury, the defendant is entitled to a credit under section 85.38 
 
         which amount will be stipulated to by the parties.  It is further 
 
         stipulated that, in the event an injury is found, it is to a 
 
         scheduled member to both upper extremities or wrists.  It is 
 
         further stipulated that if the injury occurred in February, 1984, 
 
         claimant's rate is $279.46. Further, the parties will stipulate 
 
         as to the appropriate rate depending upon the date of injury 
 
         which may be established.
 
         
 
              The defendant in this case is asserting the affirmative
 
         
 
         
 
         defense of the expiration of the statute of limitations under 
 
         section 85.26 of the code.
 
         
 
                             EVIDENCE PRESENTED
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   2
 
         
 
         
 
         
 
              Claimant testified he is 45 years old.  He began his 
 
         employment with John Deere in 1966.  Claimant testified as to the 
 
         jobs held at defendant's and described in detail the nature of 
 
         those jobs.  Claimant's employment history is fully set forth in 
 
         exhibit 10.
 
         
 
              Claimant outlined in detail the nature of the jobs he has 
 
         held at John Deere and the type of work he was required to do.  
 
         This would, at various times, involve operation of pneumatic 
 
         chippers, grinders and other power tools.  According to claimant, 
 
         each of these jobs and the operation of the required machinery 
 
         would cause considerable vibration of his hands and would also 
 
         require twisting and bending of the wrist.  When claimant 
 
         utilized impact wrenches, he said he would have to let the gun 
 
         "chatter" for a period of time to make sure the proper torque 
 
         level was reached.  When this was done, his hands would vibrate 
 
         severely.
 
         
 
              Claimant stated that in 1981 he went to the medical 
 
         department at John Deere complaining of swelling and numbness in 
 
         his wrists.  He was told at that time that he suffered from 
 
         arthritis.  He said he was not told by John Deere that this was a 
 
         work-related condition, but he was required to change jobs.  
 
         Claimant continued to suffer difficulty with his wrists, however, 
 
         and was again advised that he suffered degenerative arthritis.  
 
         In 1983 or 1984, claimant broke his wrist while pheasant 
 
         hunting.
 
         
 
              In July, 1984, due to continued problems with his hands, 
 
         claimant went to the Mayo Clinic in Rochester, Minnesota in an 
 
         effort to determine the cause of his problem.  Claimant said that 
 
         after four days of tests, it was determined that he did not 
 
         suffer arthritis, at which time he inquired as to whether or not 
 
         his problem could be work-related and was advised to consult his 
 
         family doctor.  Claimant also went to Iowa City, Iowa to the 
 
         University for examination in June of 1984.  While in Iowa City, 
 
         claimant.consulted William Blair, M.D. Dr. Blair diagnosed 
 
         claimant's condition as carpal tunnel syndrome.  Soon thereafter, 
 
         Dr. Blair performed carpal tunnel surgery on both hands and 
 
         claimant was off work for six to eight weeks.  Claimant then 
 
         returned to work as a tractor driver.  In July, 1985, claimant 
 
         underwent a wrist fusion on the right and in October, 1985, he 
 
         underwent a wrist fusion on the left.  Both of these operations 
 
         were performed by Dr. Blair.  Claimant advised that after he 
 
         described to Dr. Blair the nature of his employment and use of 
 
         various power tools, the doctor indicated that the cause of his 
 
         problem was his employment.
 
         
 
              Claimant advised that he returned to work as a computer
 
         
 
         terminal operator in April, 1986, which employment he continued 
 
         in until a strike occurred at John Deere.  The strike concluded 
 
         in February, 1987.  Claimant says he has no work restrictions 
 
         except he cannot climb ladders or use vibrating tools.  Claimant 
 
         said that he presently has difficulty holding on to things 
 
         because his wrists are fused at a particular angle.
 
         
 
              On cross-examination, there was some indication that, 
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   3
 
         
 
         
 
         perhaps as early as 1972, claimant was aware of the possible 
 
         relationship between his hand problem and his employment.  
 
         Claimant also testified on cross-examination as to various home 
 
         activities which might involve vibration of the wrist such as 
 
         cutting firewood.  Claimant explained that it was his 
 
         understanding that his condition was arthritic and not from an 
 
         accident or an employment cause.
 
         
 
              Teresa J. Willard testified that she has been married to the 
 
         claimant for 22 years.  She said claimant first began to 
 
         experience problems with his hands in the 1970's.  The problem, 
 
         however, became quite severe in the 1980's and got to the point 
 
         where he could receive no relief from the pain.  She said that, 
 
         since his fusions, claimant has had relief from the pain.
 
         
 
              Mrs. Willard testified that claimant first began to think 
 
         his problem was related to his employment after he went to the 
 
         Mayo Clinic and was advised that he did not have arthritis.  She 
 
         said the most definite discussion concerning the work-relatedness 
 
         of claimant's condition occurred in January, 1986 in consultation 
 
         with Dr. Blair.  She said that when claimant was first off work, 
 
         he did go to John Deere and request workers' compensation 
 
         benefits, but was not allowed to draw benefits.  She said 
 
         claimant signed up for the disability plan because they were in 
 
         need of the money.
 
         
 
              James R. Taylor testified that he has been employed at John 
 
         Deere for 23 years.  He stated that he has done some of the same 
 
         jobs as claimant and confirmed that the job of front end assembly 
 
         requires bending and twisting of the wrist in operation of a 
 
         pneumatic wrench.   He said the wrench weighs as much as 20 
 
         pounds and causes severe vibration of the wrist when operated.
 
         
 
              Ron Stuber testified that he has been an employee of John 
 
         Deere for 32 years.  He stated that the testimony of claimant and 
 
         Mr. Taylor concerning the operation of the pneumatic wrenches was 
 
         correct.
 
         
 
              Bill Winters testified that he has been employed by the 
 
         defendant since 1966.  He said he too, at one time, has done the 
 
         chipping and grinding job the claimant had done.  He stated that 
 
         the description given by claimant was correct.  According to Mr. 
 
         Winters, a person's whole body would vibrate while doing the 
 
         chipping and grinding job.  He stated that, by the end of the
 
         day, his hands would be stiff and sore from the constant 
 
         vibration involved.
 
         
 
              John Michaloff testified that he is employed by the 
 
         defendant as a manufacturing supervisor.  He stated that he 
 
         supervised the claimant in the broach department from 1981 to 
 
         February, 1984.  He said he is familiar with that operation and 
 
         denied that it involved flexation of the wrist or vibration.  He 
 
         stated that he was unaware of the reason why claimant was 
 
         transferred to his department.  He stated that claimant was 
 
         transferred out of his department due to medical restrictions.
 
         
 
              George Ritland testified that he is employed by the 
 
         defendant as a supervisor.  He stated that he supervised the 
 
         claimant in February, 1984 at which time it was claimant's job to 
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   4
 
         
 
         
 
         drive around and pick up trash in a small tractor.  He said it 
 
         was not a physically demanding job and stated there was no 
 
         difference in the claimant's performance of the job either before 
 
         or after the carpal tunnel surgery.
 
         
 
              James Zahn testified that he has worked for the defendant 
 
         for 20 years and has been a supervisor for the past 13 years.  He 
 
         stated that the job of computer terminal operator did not require 
 
         twisting and bending of the wrist, although it would occasionally 
 
         required the use of a hammer.  He said that claimant complained 
 
         about doing this job and that it exceeded his medical 
 
         restrictions.
 
         
 
              William Blair, M.D., testified by way of deposition which 
 
         was admitted as exhibit 11.  Dr. Blair stated that, in March of 
 
         1985, in a letter to the John Deere medical department, he 
 
         indicated that he was uncertain as to whether claimant's 
 
         condition was related to his employment.  The doctor stated that 
 
         he subsequently obtained a work history from the claimant 
 
         following which he made the determination that there was a causal 
 
         relationship between claimant's employment and his problems with 
 
         his wrists.  The doctor stated that claimant had an impairment 
 
         equal to 32% of the upper extremities.  He said that this 
 
         impairment rating could be separated between the carpal tunnel 
 
         syndrome and the wrist fusion.  He said that 29-30 percent of the 
 
         impairment would have been related to the fusion and 2-3 percent 
 
         related to the carpal tunnel.  The doctor said that he did not 
 
         relate the carpal tunnel problem to the claimant's employment.
 
         
 
              Dr. Blair stated that the essential problem suffered by 
 
         claimant was one of arthritis in the wrist joints.  He stated 
 
         that the arthritic condition from which claimant suffered could 
 
         occur in someone with relatively sedentary employment, but there 
 
         would be an increased tendency for it to develop in an individual 
 
         who was involved in activities requiring extension and flexation 
 
         of the wrist as well as vibration.  Dr. Blair indicated that some 
 
         individuals have a greater propensity toward the development
 
         
 
         of arthritis than others.  He clearly indicated,however, that the 
 
         employment activities of the claimant, as described to him by the 
 
         claimant, would be a significant, contributing factor to the 
 
         development of the condition for which he treated the claimant.  
 
         Also included in the exhibit is a February 26, 1986 letter from 
 
         Dr. Blair to claimant's attorney.  Dr. Blair states, in the 
 
         letter, that given the circumstances of claimant's employment and 
 
         based upon the description given to him by the claimant, the 
 
         problems suffered by the claimant were most probably aggravated 
 
         by his employment.
 
         
 
              Exhibit 3 is copies of x-ray reports concerning the 
 
         claimant.
 
         
 
              Exhibit 4 is a copy of a report from Richard B. Tompkins, 
 
         M.D., of the Department of Internal Medicine, Division of 
 
         Rheumatology at the Mayo Clinic in Rochester, Minnesota.  
 
         According to that report, claimant suffered from a mild form of 
 
         diabetes which could be corrected with diet and an oral agent.  
 
         It was recommended that claimant have regular follow-ups to check 
 
         on his diabetes.
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   5
 
         
 
         
 
         
 
              Exhibit 5 is an attending physician's report concerning the 
 
         claimant authored by John Flage, M.D., and dated March 29, 1985.  
 
         This report indicates that claimant was off work commencing 
 
         February 18, 1985 for his wrist fusion.
 
         
 
              Joint exhibit 6 appears to be the progress notes of Dr. 
 
         Flage concerning the claimant.
 
         
 
              Joint exhibit 7 is a report from a doctor concerning 
 
         claimant's hearing loss.
 
         
 
              Joint exhibit 8 is a May 5, 1986 report from Dr. Flage 
 
         establishing work restrictions for claimant.
 
         
 
              Joint exhibit 9 is a copy of claimant's earnings from 
 
         February, 1984 through what would appear to be October, 1983.
 
         It is noted,however, that the copy is not clear and cannot be 
 
         fully understood.
 
         
 
              Joint exhibit 10 is a copy of claimant's work history with 
 
         John Deere.
 
         
 
              Joint exhibit 11 has been previously reviewed.
 
         
 
              Joint exhibit 12 is a letter from Dr. Flage concerning 
 
         claimant's work restrictions.  This letter is dated July 8, 
 
         1986.
 
         
 
              Joint exhibit 13 is a letter denying claimant disability 
 
         benefits.
 
         
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury in June of 1984 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.] Likewise a personal injury 
 
              includes a disease resulting from an injury ... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   6
 
         
 
         
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.] 
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury in June, 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,
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   7
 
         
 
         
 
         
 
         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).
 
         
 
              It is not necessary for claimant to prove his disability 
 
         results from a sudden, unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              The McKeever court also held that the date of injury in 
 
         gradual injury cases is the time when pain prevents the employee 
 
         from continuing to work.  It McKeever, the injury date coincided 
 
         with the time claimant was finally compelled to give up his job.  
 
         This date was then utilized in determining the rate and the 
 
         timeliness of claimant's claim under Iowa Code section 85.26 and 
 
         notice under Iowa Code section 85.23.
 
         
 
              The record in this case establishes that the claimant did 
 
         receive an injury arising out of and in the course of his 
 
         employment.   The reports and deposition testimony of Dr. Blair 
 
         establish that, at a minimum, claimant suffered a material 
 
         aggravation of his arthritic condition.  The defendant's 
 
         challenge to Dr. Blair's opinion based upon an inaccurate history 
 
         related by the claimant is unpersuasive.   The record establishes 
 
         that claimant's testimony concerning the type of work he did is 
 
         indeed accurate.  It is evident that, although Dr. Blair's 
 
         opinion may have been based upon something less than a complete 
 
         understanding of claimant's employment activities, it is 
 
         nevertheless valid and binding.
 
         
 
              Although claimant's condition carries a diagnosis of carpal 
 
         tunnel syndrome and degenerative joint disease, it is evident 
 
         that both conditions are the result of his employment activities.  
 
         Claimant has thus proven by a preponderance of the evidence that 
 
         he is entitled to recovery.
 
         
 
              It is not clear from the record the precise date of 
 
         claimant's injury.  Under the McKeever decision the appropriate 
 
         date of injury is the date upon which claimant was first required 
 
         to be off work as a result of his condition.  It would appear, 
 
         though
 
         it is not certain, that this first occurred some time in May of 
 
         1984.' The parties are encouraged to agree upon the date the 
 
         claimant was first required to leave his employment for treatment 
 
         and if they cannot do so, to submit evidence upon which an 
 
         appropriate finding can be made.  Claimant is entitled to healing 
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   8
 
         
 
         
 
         period benefits during the period of time it took him to recover 
 
         from his carpal tunnel surgery.  He is then entitled to payment 
 
         of permanent partial disability benefits until such time as he 
 
         was again off work to undergo the wrist fusions.  He is entitled 
 
         to payment of additional healing period benefits during the 
 
         period of time it took him to recover from the wrist fusions, 
 
         which would appear to be when he first returned to work.  
 
         Thereafter permanent partial disability benefits should commence 
 
         again.
 
         
 
              The record establishes the claimant's impairment is to the 
 
         left upper extremity and is equal to 32% of the extremity.  This 
 
         is a scheduled loss appropriately determined under section 
 
         85-34(2)(s).  Based upon the combined value charts of the AMA 
 
         Guide to the Evaluation of Permanent Impairment, claimant's 
 
         entitlement is equal to 170 weeks.
 
         
 
              1.  On or about May, 1984 claimant became disabled as a 
 
         result of a wrist problem.
 
         
 
              2.  Claimant's wrist problem was in the nature of carpal 
 
         tunnel syndrome and degenerative joint disease.
 
         
 
              3.  Claimant's problems with his wrists developed over a
 
              number of years as a result of his employment activities.
 
         
 
              4.  Claimant was required to be off work for healing 
 
         purposes following carpal tunnel release surgery and again 
 
         following wrist fusions.
 
         
 
              5.  Claimant suffered permanent impairment equal to 32% of 
 
         both upper extremities as a result of his work injuries.
 
         
 
              6.  Claimant's rate of compensation is $279.46.
 
         
 
              7.  Claimant's problems with his wrists developed 
 
         simultaneously.
 
         
 
              8.  Claimant filed his claim for benefits in a timely 
 
         manner.
 
         
 
         
 
              IT IS THEREFORE CONCLUDED that claimant has proven by a 
 
         preponderance of the evidence that he received an injury arising 
 
         out of and in the course of his employment.
 
         
 
              IT IS FURTHER CONCLUDED that claimant has proven there is a 
 
         causal relationship between his injury and the disability to his
 
         upper extremities.
 
         
 
              IT IS FURTHER CONCLUDED that the defendant failed to prove 
 
         by a preponderance of the evidence that claimant's claim is 
 
         barred by the statute of limitations.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that the defendant pay unto claimant 
 
         healing period benefits commencing with the first day he was off 
 
         work because of his work injury and continuing until he returned 
 

 
         
 
         
 
         
 
         WILLARD V. JOHN DEERE COMPONENT WORKS
 
         Page   9
 
         
 
         
 
         to work following carpal tunnel release surgery.
 
         
 
              IT IS FURTHER ORDERED that the defendant shall thereafter 
 
         commence payment of one hundred seventy (170) weeks of permanent 
 
         partial disability at the rate of two hundred seventy-nine and 
 
         46/100 dollars ($279.46) until such time as claimant was again 
 
         off work for wrist fusion surgeries at which time healing period 
 
         benefits shall recommence until he again returned to work.  The 
 
         remaining permanent partial disability entitlement shall then 
 
         recommence.
 
         
 
              IT IS FURTHER ORDERED that the defendant shall be given 
 
         credit for healing period benefits pursuant to 85.38.
 
         
 
              IT IS FURTHER ORDERED that all accrued benefits shall be 
 
         paid in a lump sum with interest.
 
         
 
              IT IS FURTHER ORDERED that costs are taxed to the 
 
              defendant.
 
         
 
         
 
                  Signed and filed this 29th day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                            STEVEN E. ORT
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette Street
 
         P.O. Box 2634
 
         Waterloo, Iowa 5070
 
         
 
         Mr. John W. Rathert
 
         Attorney at Law
 
         620 Lafayette Street
 
         P.O. Box 178
 
         Waterloo, Iowa 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1402.30, 1803, 2402
 
                                            Filed June 29, 1987
 
                                            STEVEN E. ORT
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JOHN WILLARD,
 
                                                 File No. 779876
 
              Claimant,
 
         
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         JOHN DEERE COMPONENT WORKS,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1108.50, 1402.30, 1803, 2402
 
         
 
              Claimant suffered bilateral carpal tunnel syndrome and 
 
         degenerative joint disease from 20 years of work at John Deere.  
 
         Medical evidence made clear causal connection.  Defense of 
 
         statute of limitations failed because claimant filed within two 
 
         years of the date of injury as defined in McKeever.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            KENNETH LEROY NIELSEN,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 779877
 
            FREMONT-MILLS COMMUNITY       :
 
            SCHOOL,                       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed January 11, 1991 are adopted as final agency 
 
            action.
 
            conclusions of law
 
            On appeal, claimant asserts that the deputy erred in failing 
 
            to apply the "discovery rule" set out in Orr v. Lewis 
 
            Central School District, 298 N.W.2d 256 (Iowa 1980) to Iowa 
 
            Code section 85.26 cases.  Under the discovery rule, the 
 
            statute of limitations would not start to run until claimant 
 
            recognized the nature, seriousness and probable compensable 
 
            character of his injury.  Orr, 298 N.W.2d at 261.  
 
            Claimant allegedly sustained a work-related injury on or 
 
            about December 15, 1981 when he slipped and fell at work.  
 
            Claimant filed this action December 17, 1984.  Claimant's 
 
            cause of action would be barred by Iowa Code section 
 
            85.25(1) unless the discovery rule is applied.  The 
 
            discovery rule was discussed in Jones v. Continental Baking 
 
            Company, Appeal Decision, September 24, 1991, File no. 
 
            908648.
 
            
 
                    Defendants argue on appeal that claimant's 
 
                 injury is not subject to the discovery rule, 
 
                 because claimant's condition flows from an 
 
                 identifiable, traumatic event.  Defendants argue 
 
                 that there should be a distinction between "latent 
 
                 injuries" and "traumatic injuries with latent 
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 manifestation."  Defendants cite LeBeau v. Dimig, 
 
                 446 N.W.2d 800 (Iowa 1989).  LeBeau is a tort 
 
                 case, dealing with the discovery rule in an 
 
                 automobile accident case.  The plaintiff received 
 
                 a head injury, which appeared minor at first but 
 
                 later turned out to be the cause of epilepsy.  
 
                 However, the statute of limitations had expired by 
 
                 the time the epileptic condition was discovered.
 
            
 
                    In LeBeau, the Iowa Supreme Court used the 
 
                 "traumatic event latent manifestation" analysis.  
 
                 In the "latent manifestation" case the Court 
 
                 reasoned, the injured party is entitled to the 
 
                 discovery rule rather than charging him with facts 
 
                 which are "unknown and inherently unknowable."  In 
 
                 the "traumatic event" case, however, the injured 
 
                 party has been injured by a noticeable, traumatic 
 
                 occurrence, where the injured party realizes both 
 
                 that he has been injured, and what is responsible 
 
                 for his injury, even though the full extent of the 
 
                 harm is not yet known.
 
            
 
                    The LeBeau court found that allowing the use of 
 
                 the discovery rule in traumatic event cases would 
 
                 result in an open-ended liability for defendants, 
 
                 multiple suits arising out of the same incident, 
 
                 and in effect would create two statutes of 
 
                 limitations for the same injury, one for the 
 
                 traumatic event itself and another for any latent 
 
                 effects.  The court disallowed the claim filed 
 
                 beyond the statute of limitations.
 
            In this case, claimant knew he had a traumatic work-related 
 
            injury on or about December 15, 1981.  Claimant knew he fell 
 
            down and that his leg hurt.  The leg pain after the December 
 
            15, 1981 incident was worse than in the past.  In a letter 
 
            dated March 11, 1982, claimant wrote to the 
 
            defendant-employer that he was unable to work due to a 
 
            work-related injury to his leg.  Claimant contends that 
 
            while he was aware of his leg problem which he believed to 
 
            be work-related, he did not learn of his potentially 
 
            compensable back problem until January 6, 1982.  Claimant's 
 
            back problem is not subject to the discovery rule.  
 
            Claimant's condition flows from an identifiable, traumatic 
 
            event.  Claimant's cause of action is barred by Iowa Code 
 
            section 85.26(1).
 
            Even if the discovery rule were to be applied to claimant's 
 
            back problem, claimant's claim would be barred by Iowa Code 
 
            section 85.26(1).  The documentary evidence in this case 
 
            supports the conclusion that claimant knew that he injured 
 
            both his leg and back as a result of the work-related fall 
 
            on December 15, 1981.  Therefore, even if the discovery rule 
 
            were applicable, claimant's cause of action would be barred.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant take nothing from these proceedings.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            That claimant pay the cost of this proceeding including the 
 
            costs of transcription of the hearing.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Helmut A. Muller
 
            Attorney at Law
 
            Rural Route 5
 
            Osceola, Iowa 50213
 
            
 
            Mr. Gregory G. Barntsen
 
            Attorney at Law
 
            P.O. Box 249
 
            Council Bluffs, Iowa 51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-2402
 
            Filed December 23, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            KENNETH LEROY NIELSEN,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 779877
 
            FREMONT-MILLS COMMUNITY       :
 
            SCHOOL,                       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-2402
 
            Affirmed the deputy's decision which held that claimant's 
 
            cause of action is barred by Iowa Code section 85.25(1).  
 
            Cited agency precedent which held that the discovery rule is 
 
            not applicable in the case where claimant's injuries result 
 
            from a "traumatic injury with latent manifestation."  Jones 
 
            v. Continental Baking Company, Appeal Decision, September 
 
            24, 1991, File no. 908648.
 
            Even if the discovery rule was to be applied to claimant's 
 
            back problem, claimant's claim is barred by Iowa Code 
 
            section 85.26(1).  The documentary evidence in this case 
 
            supports the conclusion that claimant knew that he injured 
 
            both his leg and back as a result of the work-related fall 
 
            on December 15, 1981.