BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARYLD LEWIN,
 
         
 
              Claimant,
 
         vs.                                        File No. 786764
 
         
 
         FARMSTEAD FOODS,                        A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and                                           F I L E D
 
         
 
         SENTRY INSURANCE,                            AUG 10 1989
 
         
 
              Insurance Carrier,                 INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Daryld Lewin 
 
         against Farmstead Foods, his former employer, and Sentry 
 
         Insurance, the employer's insurance carrier.  The case was heard 
 
         and fully submitted at Cedar Rapids, Iowa on January 5, 1989.  
 
         The record in the proceeding consists of testimony from Daryld 
 
         Lewin, Lynn Lewin, Randy Crouse, and Roger Popham as well as 
 
         claimant's exhibits 1 through 18 and defendants' exhibits A 
 
         through D.
 
         
 
                                    ISSUES
 
         
 
              The issues presented by the parties for determination are: 
 
         Whether claimant sustained an injury on or about January 14, 1985 
 
         which arose out of and in the course of employment with the 
 
         employer; whether the alleged injury is a proximate cause of any 
 
         temporary or permanent disability; determination of claimant's 
 
         entitlement to compensation for temporary total disability or 
 
         healing period; and, determination of claimant's entitlement to 
 
         compensation for permanent partial disability.  It was stipulated 
 
         that all weekly compensation due prior to June 30, 1985 had been 
 
         paid.  A dispute exists with regard to whether any permanent 
 
         partial disability should be compensated as a disability of a 
 
         scheduled member or as a disability to the body as a whole.
 
         
 
                           SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
                                                
 
                                                         
 
              Daryld.Lewin is a 38-year-old married man who dropped out of 
 
         high school and joined the Marines.  He subsequently obtained a 
 
         GED.  In the Marines, he was trained in communications.  
 
         Following discharge from the service, he worked as a lineman for 
 
         the Rock Island Railroad for approximately three months.  After a 
 
         short job with a high line company, he commenced employment with 
 
         Wilson Foods in Cedar Rapids in November, 1970.
 
         
 
              Claimant stated that he had performed labor throughout the 
 
         plant, but worked primarily in the bacon room until 1977 or 1978 
 
         when he began boning hams.
 
         
 
              Claimant stated that the ham boning process changed while he 
 
         was employed.  Claimant stated that with chain boning, a worker 
 
         performed only one part of the boning process, but performed it 
 
         at a very rapid rate.  Claimant stated that he simply was unable 
 
         to perform at the rate which was required.
 
         
 
              Claimant, who is left-handed, testified.that he began to 
 
         have problems with his shoulder, neck and upper back in late 1983 
 
         or early 1984.  He described it as a deterioration of the 
 
         shoulder which sometimes provided a feeling similar to an 
 
         electrical shock. He sought treatment from the plant nurse and 
 
         therapists for a time, but his symptoms worsened.  Claimant 
 
         stated that the pain is in his upper shoulder, tricep, bicep and 
 
         sometimes in the upper mid-back.  He stated that it originates 
 
         under his shoulder blade and sometimes extends into his neck.  
 
         Claimant stated that the pain was still present even though he 
 
         had been out of the plant since 1985.  Claimant stated that 
 
         holding or doing anything above waist level causes pain.  He 
 
         stated that as long as he keeps his arms below the waist, he 
 
         feels okay.  Claimant testified that he has reduced his softball 
 
         and other activities due to the discomfort that accompanies 
 
         throwing overhanded.
 
         
 
              On or about July 6, 1985, claimant participated in a small 
 
         town celebration and was photographed throwing an empty "pony" 
 
         beer keg weighing approximately 15 pounds.  When claimant 
 
         attempted to return to work on July 10, 1985, consistent with his 
 
         physician's release, he was immediately suspended for making a 
 
         false workers' compensation claim (exhibit C).  Claimant was 
 
         initially awarded unemployment compensation benefits, but the 
 
         appeal board reversed the award on the ground that claimant had 
 
         not offered to return to work with the employer, an obviously 
 
         incorrect finding.
 
         
 
              Following his employment at Farmstead Foods, claimant 
 
         unsuccessfully sought work for a period of time.  He performed 
 
         some odd jobs, delivered cars and eventually obtained 
 
         construction jobs.  He was injured on one of his construction 
 
         jobs, but that injury did not affect his shoulder.  Claimant 
 
         testified that, with Farmstead Foods, he was paid approximately 
 
         $9.00 per hour and had a good fringe benefit package.  He stated 
 
         that the best pay he has received since losing his Farmstead 
 
         Foods employment is approximately $6.50 per hour with no fringe 
 
                                                
 
                                                         
 
         benefits.
 
         
 
              In early 1985, claimant began treating with W. John Robb, 
 
         M.D., a Cedar Rapids orthopaedic surgeon.  Dr. Robb diagnosed 
 
         claimant's condition as recurrent tendinitis, rotator cuff 
 
         tendons, left shoulder.  The doctor recommended that claimant 
 
         transfer to another type of job that does not place the intensive 
 
         demands on the rotator cuff of the shoulder, namely, repetitive 
 
         elevation of the arm above 90 degrees with stress (exhibit 2, 
 
         pages 1 and 2).  On February 13, 1985, Dr. Robb stated that, in 
 
         his opinion, the tendinitis was due to claimant's work activities 
 
         and that he should restrict his activities to avoid abduction 
 
         beyond 70-80 degrees (exhibit 2, page 3).  On April 12, 1985, Dr. 
 
         Robb indicated that claimant did not appear to have any permanent 
 
         damage to the shoulder, but that the condition would remain 
 
         painful as long as claimant performs the type of work which he 
 
         was then performing (exhibit 2, page 5).
 
         
 
              Claimant as again taken off work commencing June 10, 1985. 
 
         Dr. Robb expressed concern that continuing to work might result 
 
         in permanent damage to claimant's rotator cuff (exhibit 2, page 
 
         7). On June 26, 1985, Dr. Robb again released claimant to return 
 
         to work.  In doing so, he stated:
 
         
 
              My taking him off work on the previous visit and putting the 
 
              shoulder at rest and in a sling from his point of view has 
 
              not resolved the problem.  Therefore, I think he should 
 
              consider another trial of work as I do not feel it will be 
 
              detrimental to his shoulder even though it may produce some 
 
              of the soreness he has had in the past.
 
         
 
         (Exhibit 2, page 8)
 
         
 
              When Dr. Robb reexamined claimant on November 26, 1986, he 
 
         again diagnosed chronic tendinitis of the long head of the biceps 
 
         and rotator cuff to a lesser degree, left shoulder.  He felt that 
 
         claimant would be limited in all types of work which require 
 
         maintained abduction in excess of 90 degrees or repetitive 
 
         motions which require lifting above 90 degrees.  He stated that 
 
         claimant would have a ten percent permanent impairment of the 
 
         left upper extremity as a result of the tendinitis and 
 
         limitations it imposes (exhibit 2, pages 12 and 13).  Dr. Robb 
 
         confirmed those same opinions in a report dated September 28, 
 
         1988 (exhibit 2, pages 14-16).
 
         
 
              When claimant did not improve during the course of 
 
         treatment, Dr. Robb referred claimant to the University of Iowa 
 
         Hospitals and Clinics.  The diagnosis was mild rotator cuff 
 
         tendonitis of the left shoulder and also mild lateral 
 
         epicondylitis of the left arm (exhibit 5).
 
              Claimant was evaluated by John R. Walker, M.D., a Waterloo, 
 
         Iowa orthopaedic surgeon.  In his report dated February 3, 1988, 
 
         Dr. Walker stated:
 
         
 
              OPINION:  Throughout this man's history is [sic] is quite 
 
                                                
 
                                                         
 
                   obvious that he has been suffering from an over-use and work 
 
              stress syndrome involving the left, upper extremity, 
 
              particularly the shoulder, the shoulder girdle and to some 
 
              extent the left elbow.  I further believe that the patient 
 
              probably has suffered some stressful chronic sprain of the 
 
              cervical spine associated with his work.
 
         
 
         (Exhibit 6, page 5)
 
         
 
              When deposed on December 20, 1988, Dr. Walker again 
 
         confirmed that claimant had overuse syndrome of the left upper 
 
         extremity which was a result of the work which claimant performed 
 
         at Wilson and Farmstead Foods (exhibit 12, pages 25-28).  Dr. 
 
         Walker stated that the beer keg throwing incident played no part 
 
         in producing or aggravating claimant's disability and that the 
 
         activity was different from the injurious work activities in that 
 
         the throwing was performing underhanded and was not repetitive 
 
         (exhibit 12, pages 28 and 29).
 
         
 
              Dr. Walker felt that claimant had a 12 percent permanent 
 
         impairment of the body as a whole when the condition of 
 
         claimant's shoulder, cervical spine, elbow and chest wall 
 
         complaints were considered.  He did not break that rating down 
 
         into the various components (exhibit 6, page 5; exhibit 12, pages 
 
         26 and 27).  Dr. Walker also recommended that claimant avoid 
 
 
 
                           
 
                                                         
 
         repetitive work and avoid work performed above shoulder level 
 
         (exhibit 12, pages 29 and 30).
 
         
 
              Claimant's spouse, Lynn Lewin, confirmed that claimant's 
 
         shoulder became acute.in January, 1985.  She stated that the, 
 
         condition had come on during the period of time when he was 
 
         employed at Farmstead Foods.  Claimant's spouse also stated that 
 
         activities such as driving a car with the left arm elevated to 
 
         the window ledge and throwing overhand cause pain.  She confirmed 
 
         that any activity performed overhead causes pain.
 
         
 
              Randy Crouse was claimant's ham boning supervisor during 
 
         1979 through 1987.  Crouse stated that in late 1983, the first 
 
         pace boning line was installed and that each person did a part of 
 
         each ham rather than an entire ham.  Until early 1984, pace 
 
         positions and stationary positions existed concurrently.  Crouse 
 
         stated that the line,speed is now 305 hams per hour and the, work 
 
         standard is 275 hams per hour.  Crouse testified that presently 
 
         production is 15.7 hams per person per hour, an amount which is 
 
         less than what production had been prior to installing the pace 
 
         line system.
 
         
 
              Crouse confirmed that, under the old stationary boning 
 
         system, workers could work at their own pace, rest and take breaks 
 
         as they chose, so long as they met the standard for production.  
 
         He stated that under the new system, a relief person is needed 
 
         before an employee can walk away from the line.
 
         
 
                    APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 14, 1985 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).
 
         
 
              Claimant testified to the onset of symptoms consistent with 
 
         the ham boning activities.  Both Drs. Robb and Walker related the 
 
         symptoms to claimant's work as a ham boner.  The diagnosis 
 
         reached by each of the doctors who have evaluated claimant is 
 
         similar.  It is therefore determined that claimant sustained an 
 
         injury in the nature of chronic tendonitis of his left shoulder 
 
         which arose out of and in the course of his employment with 
 
         Farmstead Foods.  The injury is determined to have been one which 
 
         resulted from cumulative trauma.  Since the first sustained 
 
         identified period of disability commenced January 28, 1985, that 
 
         date would be the correct date of injury under the cumulative 
 
         trauma rule rather than January 14, 1985, the date claimant 
 
         reported it to the employer.  However, since January 14, 1985 has 
 
         been used consistently by both parties throughout this case, it 
 
         will be used as the injury date for the decision.
 
         
 
              Claimant seeks compensation for healing period running until 
 
         December of 1986 when Dr. Robb assigned a ten percent permanent 
 
         impairment rating.  While the imposition of an impairment rating 
 
                                                
 
                                                         
 
         is often a good indicator of the time when the healing period has 
 
         ended, it is not the exclusive method of determination.  Thomas 
 
         v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 1984); 
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 
 
         1981).  In this case, claimant was off work during much of the 
 
         month of June, 1985.  While his condition improved somewhat, it 
 
         did not completely resolve.  Claimant worked on July 1 and 2, 
 
         1985, but was again taken off work by Dr. Turner in order to 
 
         conduct an arthrogram.  Following the arthrogram, Dr. Turner 
 
         released claimant to return to work on July 10, 1985.  The 
 
         arthrogram was interpreted as being normal.  Dr. Turner did not 
 
         impose any specific restrictions upon claimant's activities 
 
         (exhibit A).  Claimant himself testified that his condition had 
 
         changed little since July, 1985.  It is therefore determined that 
 
         the healing period under Iowa Code section 85.38(1) terminated on 
 
         July 10, 1985 consistent with the release from Dr. Turner.  There 
 
         is no showing of any subsequent substantial recuperation or 
 
         active medical treatment of claimant's condition which would 
 
         extend the healing period.
 
         
 
              There is a dispute in this case regarding whether any 
 
         permanent disability which exists is limited to claimant's left 
 
         or whether it extends into the body as a whole.  Claimant has not 
 
         established by a preponderance of the evidence that any problem 
 
         exists in his cervical spine, chest wall or elbow, which was 
 
         proximately caused by his employment at Farmstead Foods.  The 
 
         primary diagnosis which was made by the physicians, however, is 
 
         tendonitis in the left rotator cuff and shoulder.  Those 
 
         structures are not part of the arm.  Therefore, the disability 
 
         extends into the body as a whole and should be evaluated 
 
         industrially.  Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 
 
         (Iowa 1986).  When the medical profession uses the term "upper 
 
         extremity" the definition commonly given includes the arm, 
 
         shoulder and entire shoulder girdle.  It is not limited to or 
 
         synonymous with the arm.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
                                                
 
                                                         
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              The assessment of claimant's restrictions and limitations as 
 
         made by Drs. Robb and Walker are not greatly inconsistent. 
 
         Claimant has sustained an overuse syndrome type of injury.  It is 
 
         the type of condition which gives little trouble so long as the 
 
         aggravating activities are not performed.  In this case, the 
 
         aggravating activities are work at or above shoulder level, 
 
         particularly repetitive work.  Dr. Robb's ten percent impairment 
 
         rating of the extremity is roughly equivalent to a five percent 
 
         impairment of the whole person.  Dr. Walker's twelve percent 
 
         impairment rating of the whole person includes problems other 
 
         than claimant's left shoulder.  Claimant's formal education and 
 
         work experience is such that it would require major retraining 
 
         for him to enter into sedentary employment.  All of his past 
 
         employments have involved a substantial degree of physical labor 
 
         and physical agility.  Claimant has experienced approximately a 
 
         30 percent reduction in his actual earnings when the best paying 
 
         job he has held since leaving Farmstead is compared to his wage 
 
         level at Farmstead.  He has lost the ability to perform many 
 
         occupations. When all the material factors of industrial 
 
         disability are considered, it is determined that Daryld Lewin 
 
         sustained a 30 percent loss of earning capacity as a result of 
 
         the chronic tendonitis injury affecting his left shoulder which 
 
         arose out of and in the course of his employment with Farmstead 
 
         Foods.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant is a left-handed male born January 14, 1950.  
 
         He was employed from October 10, 1970 until July 1, 1984 by 
 
         Wilson Foods Corporation in Cedar Rapids and after July 1, 1984 
 
         by Farmstead Foods.
 
         
 
              2.  At Farmstead Foods, claimant worked in the ham boning 
 
         department.
 
         
 
              3.  Claimant went off work and received workers' 
 
         compensation disability benefits from January 28, 1985 through 
 
         March 18, 1985, seven and one-sevenths weeks, for an alleged 
 
         injury on January 14, 1985.  He also received three weeks from 
 
         June 10, 1985 to July 2, 1985.  Benefits were paid at $240.10 per 
 
                                                
 
                                                         
 
         week, the rate now agreed upon by the parties.
 
         
 
              4.  Dr. Robb reported on February 13, 1985 that the 
 
         diagnosis was tendonitis of the rotator cuff and it was due to 
 
         the mechanism in which the patient's shoulder was employed at 
 
         work.  He recommended that claimant avoid activities performed at 
 
         more than 70-80 degrees of abduction.
 
         
 
              5.  Claimant's description of his symptoms and their onset 
 
         is accepted as being correct.
 
         
 
              6.  Dr. Robb examined claimant on June 25, 1985, released 
 
         him to work July 1, 1985 and listed no restrictions.  Dr. Robb 
 
         subsequently assigned a permanent impairment rating of ten 
 
         percent of the left upper extremity.
 
         
 
              7.  Claimant returned to work with the employer and worked 
 
         on July 1 and 2, 1985.
 
         
 
              8.  Dr. Turner examined claimant on July 3, 1985 for a 
 
         "rotator cuff" and recommended no work until after the next 
 
         appointment July 10.
 
         
 
              9.  An arthrogram performed July 5, 1985 was reported as 
 
         negative (normal).
 
         
 
              10.  On July 6, 1985, claimant went to the Greeley Fun Days 
 
         and three times threw an 8-gallon empty pony keg, weighing 
 
         approximately 15 pounds, once 36 feet, 5 inches.  Claimant was 
 
         photographed and the Cedar Rapids Gazette published his picture 
 
         on July 7, 1985.  The throwing was performed underhanded.
 
         
 
              11.  Dr. Turner examined claimant on July 10, 1985 and 
 
                             
 
                                                         
 
         recommended he resume work with no specific restrictions.
 
         
 
              12.  After being released by Dr. Turner, claimant went back 
 
         to work on July 10, 1985 and was willing to work.  On July 10 and 
 
         11, 1985, company and union officials met with the claimant.  He 
 
         was suspended and advised that it was the company's position 
 
         claimant may have falsified his workers' compensation claim and 
 
         that the company was going to investigate.
 
         
 
              13.  Claimant filed a claim for unemployment compensation 
 
         benefits which the appeal board denied because the employer 
 
         established misconduct since claimant was able to work and should 
 
         have returned to the employer to offer his services, despite the 
 
         fact that claimant did return and offer his services as soon as 
 
         he was released by the company:physician.
 
         
 
              14.  After being suspended by Farmstead Foods for 
 
         misconduct, claimant worked as a mechanic in November of 1985, as 
 
         a carpenter, for Grimshaw Company in July, 1986, for Guetzko 
 
         Construction in 1987, for Edgewood Corporation 8-12 weeks in the 
 
         spring of 1988 and again for Guetzko in 1988.
 
         
 
              15.  Claimant at first testified at his deposition that the 
 
         first place he worked after Farmstead Foods was Grimshaw 
 
         Construction around February, 1987 as a laborer and that he had 
 
         no physical restrictions from a doctor.  Actually, he had worked 
 
         in 1985 and 1986.
 
         
 
              16.  Claimant cannot remember whether he told Job Service he 
 
         had any physical limitations or that he signed a paper he could 
 
         physically do work.
 
         
 
              17.  Claimant never had undergone surgery for his left upper 
 
         extremity or shoulder and none is anticipated.
 
         
 
              18.  Claimant has experience as a security guard, mechanic, 
 
         carpenter, packinghouse worker, laborer and in communications.
 
         
 
              19.  Physicians at University Hospitals examined claimant on 
 
         March 4, 1986 and the diagnosis was mild rotator cuff tendonitis 
 
         left shoulder and mild-lateral epicondylitis left arm.  Tests 
 
         performed revealed normal findings and there,was nothing in the 
 
         report about a disability rating.
 
         
 
              20.  On February 3, 1988, Dr. Walker examined claimant at 
 
         the request of his attorney.  The doctor rendered a report and 
 
         gave a deposition, claimant's exhibits 6 and 12.  He wants 
 
         claimant to go out and do a good day's work, but not to put 
 
         excessive stress on his shoulder and neck and arm region, left 
 
         arm.  Dr. Walker agreed that if the history given to him was not 
 
         correct, the basis for his opinions about the cause of the 
 
         conditions he diagnosed means there is no basis for his opinion.  
 
         In his opinion, claimant had permanent partial impairment of the 
 
         body as a whole amounting to 12 percent, including rotator cuff 
 
         impingement, tendonitis, lateral epicondylitis (tennis elbow), 
 
                                                
 
                                                         
 
         chronic sprain and possibly minimal disc disruption affecting the 
 
         left upper extremity with some component of radiculitis and 
 
         lateral chest wall problem, probably muscle strain.  So far as 
 
         the neck, claimant basically had excellent or good range of 
 
         motion.  He had never examined the patient before injury and it 
 
         is difficult to say he had a loss of motion.  Claimant had only 
 
         subjective complaints of pain moving his neck or arm, but nothing 
 
         that could be actually discovered on x-ray or exam.  Neurological 
 
         tests were normal.  Claimant had full range of motion of his 
 
         shoulders.  His lateral epicondyle was tender and his grips were 
 
         unequal but not weak.
 
         
 
              21.  Dr. Walker formed the impression that claimant had not 
 
         worked since he left the packing plant.
 
         
 
              22.  Claimant had six complaints when he consulted Dr. 
 
         Walker; stiff neck was not borne out by physical examination; 
 
         shoulder pain was only a symptom; slopped left shoulder was not 
 
         important because everyone has a slopped left shoulder; grip and 
 
         pinch on claimant's major arm (left) was weaker but some people 
 
         on their major arm do have a weaker grip; left elbow ache was 
 
         subjective; and complaints with weather changes were subjective 
 
         and not something the doctor could observe.
 
         
 
              23.  Claimant was disabled and under appropriate medical 
 
         treatment from July 3, 1985 through July 10, 1985.  During that 
 
         period of time, he was medically incapable of performing work in 
 
         employment substantially similar to that he had performed at time 
 
         of injury.
 
         
 
              24.  Claimant has experienced a 30 percent loss of his 
 
         earning capacity as a result of the cumulative trauma type of 
 
         injury affecting his left shoulder.
 
         
 
              25.  Claimant sustained an injury in the nature of chronic 
 
         tendonitis affecting his left shoulder which arose out of and in 
 
         the course of his employment with Farmstead Foods.
 
         
 
              26.  The injury resulted from the cumulative trauma process 
 
         of ham boning which resulted in an overuse syndrome type of 
 
         condition affecting claimant's left shoulder.
 
         
 
                          CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained injury which arose out of and in the 
 
         course of his employment with Farmstead Foods on or about January 
 
         14, 1985.
 
         
 
              3.  The injury is a proximate cause of claimant's inability 
 
         to work during the period of July 3 through July 10, 1985 for 
 
         which claimant is entitled to recover one and one-sevenths weeks 
 
         of healing period compensation.
 
                                                
 
                                                         
 
         
 
              4.  The injury is a proximate cause of a permanent disabling 
 
         condition in claimant's left shoulder which is not limited to his 
 
         arm but rather extends into the body as a whole so that the 
 
         disability is to be evaluated industrially.
 
         
 
              5.  Claimant has a 30 percent permanent partial disability, 
 
         when the same is evaluated industrially, which was proximately 
 
         caused by the injury of January 14, 1985 which entitles him to 
 
         receive 150 weeks of compensation payable commencing July 11, 
 
         1985.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one and 
 
         one-sevenths (1 1/7) weeks of compensation for healing period at 
 
         the stipulated rate of two hundred forty and 10/100. dollars 
 
         ($240.10) per week payable commencing July 3, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant.one 
 
         hundred fifty (150) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred forty and 10/100 
 
         dollars ($240.10) per week payable commencing July 11, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendants pay interest to 
 
         claimant pursuant to Iowa Code section 85.30 upon all unpaid 
 
         amounts computed from the date the same became payable to the 
 
         date of actual payment.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 10th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark Liabo
 
         Attorney at Law
 
         P.O. Box 998
 
         Cedar Rapids, Iowa  52406
 
         
 
                                                
 
                                                         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
                         
 
 
 
 
 
                                            51108, 51402.20, 51402.30
 
                                            51402.40, 51802, 51803
 
                                            51803.1, 52209
 
                                            Filed August 10, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARYLD LEWIN,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 786764
 
         
 
         FARMSTEAD FOODS,                          A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51108, 51402.20, 51402.30, 51402.40, 51802, 51803, 51803.1, 
 
         52209
 
         
 
              Claimant developed chronic tendonitis of his left shoulder 
 
         as a result of activities which he performed while boning hams 
 
         for approximately seven years.  Claimant's healing period was 
 
         terminated with his last unrestricted release to return to work.
 
         
 
              Claimant had a ten percent functional impairment of the 
 
         upper extremity, but had been advised to avoid work above 
 
         shoulder level.  Claimant awarded 30 percent permanent partial 
 
         disability.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JUDY L. MITCHELL,
 
          
 
              Claimant,
 
                                                      File No. 786976
 
          VS.
 
          
 
          HERSCHEL MANUFACTURING
 
          CORPORATION,                             A R B I T R A T I 0 N
 
          
 
              Employer,
 
          
 
          and                                         D E C I S I 0 N
 
          
 
          TRAVELERS INSURANCE,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Judy L. 
 
         Mitchell, claimant, against Herschel Manufacturing Corporation, 
 
         employer, and the Travelers Insurance Company, the employer's 
 
         insurance carrier.  Claimant alleges that she has developed 
 
         tinnitus as a result of noise exposure in her employment and 
 
         seeks compensation for permanent partial disability.  Claimant 
 
         presents her claim under Chapter 85 of the Code.  The employer's 
 
         position is that Chapter 85B provides the exclusive remedy for 
 
         claimant's condition since the claim urges cumulative, rather 
 
         than acute, trauma.  The defense asserts that the claim is barred 
 
         under the provisions of Code sections 85.23 and 85.26.  It was 
 
         stipulated that, in the event of an award, the rate of 
 
         compensation is $163.28 per week.  Claimant has lost no time from 
 
         work as a result of the condition and makes no claim for healing 
 
         period or for temporary total disability.
 
         
 
              The case was heard at Des Moines, Iowa on February 20, 
 
         1987 and was fully submitted upon conclusion of the hearing.  
 
         The record in the proceeding consists of testimony from Judy L. 
 
         Mitchell, Jack Kenney, Earl Davis, Robert R. Updegraff, M.D., 
 
         Joe Poundstone, Joyce Brennan and John L. Dugan, Jr.  The 
 
         record also contains claimant's exhibits A through E and 
 
         defendants' exhibits 1 through 7.
 
         
 
         
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties are whether claimant 
 
         sustained an injury which arose out of and in the course of her 
 
         employment; whether a causal connection exists between the 
 
         tinnitus and any employment noise exposure; and, determination of 
 
         the degree of permanent partial disability that is related to any 
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   2
 
         
 
         
 
         compensable injury.  The issues raised by the defense are whether 
 
         or not the claim is barred by the provision of Code sections 
 
         85.23 and 85.26 and whether Chapter 85B is the exclusive remedy.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a brief summary of pertinent evidence.  All 
 
         evidence received at the hearing was considered when deciding the 
 
         case.
 
         
 
              Judy L. Mitchell is a 39-year-old lady who complains of 
 
         tinnitus which she first noticed in 1982.  She has been employed 
 
         at Herschel Manufacturing Corporation since 1975 and has been 
 
         employed there continuously with some interruptions for medical 
 
         problems and layoffs.  Claimant testified that the fact of her 
 
         hearing difficulty was established in 1983 by tests which showed 
 
         a hearing loss and recommended use of hearing protection.  She 
 
         testified that she had had prior hearing tests, but that the 
 
         results were not disclosed to her.
 
         
 
              Claimant testified that the first three years of her 
 
         employment were in a parts alignment position and that she has 
 
         worked primarily in the heat treatment area since 1978.  Claimant 
 
         described the heat treatment machine as a process which hardens 
 
         metal and stated that the machine sometimes arcs out and causes a 
 
         loud explosion noise.  She stated that the machine is water 
 
         cooled and has a noisy pump which is driven by an electric motor.  
 
         Claimant testified that in 1982 the cooling tower and motor was 
 
         moved from a location outside the building into the building near 
 
         her work station.  She stated that the motor had a loud squealing 
 
         sound that continued until a period of layoff in 1985 when the 
 
         factory shut down.  She stated that, after the layoff, the motor 
 
         no longer squealed.
 
         
 
              Claimant testified that, in the past, she has hunted and 
 
         that she also runs a lawn mower and garden tiller at her home, 
 
         but that she has used hearing protection whenever engaging in 
 
         those activities.  She stated that she has had difficulty 
 
         obtaining hearing protection at the Herschel Manufacturing 
 
         Corporation, particularly in the earlier years of her employment, 
 
         but that she now regularly uses hearing protection even though 
 
         the tinnitus is sometimes exacerbated by the ear plugs.
 
         
 
              Claimant described her current symptoms as a constant 
 
         ringing and buzzing.  She stated that she hears noise from the 
 
         pump motor all the time.  She stated that it is stressful to her, 
 
         causes her to lose sleep and causes her to be irritable.  She 
 
         stated that it affects her job only in the sense that it causes 
 
         her to miss approximately one day of work each month.  Claimant 
 
         testified that the problem bothers her most when she is in a 
 
         quiet area, and that she often obtains relief by having 
 
         background noise such as a radio playing softly.
 
         
 
              Jack Kenney testified that he has been employed at Herschel 
 
         Manufacturing Corporation and that he lives with claimant.  
 
         Kenney corroborated claimant's testimony that the pump motor made 
 
         a loud noise and that, when the heat treatment machine arcs out, 
 
         it makes a loud "bang" like a gun or a big firecracker.  Kenney 
 
         confirmed that claimant receives relief from her problem by 
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   3
 
         
 
         
 
         playing a radio at a low volume.
 
         
 
              Earl Davis, another Herschel Manufacturing Corporation 
 
         employee, also complained of a constant buzzing in his ears and 
 
         hearing problems.  Davis confirmed that the heat treatment 
 
         machine made a loud humming, whine type of noise and "bangs" when 
 
         it arcs out.  Davis stated that the noisy motor started in 1979 
 
         and that it was repaired after he left the heat treatment 
 
         department in 1984 or 1985.
 
         
 
              Joe Poundstone was claimant's supervisor during much of 1982 
 
         through 1984 when she worked in the heat treatment department.  
 
         He stated that she never complained of noise from the motor and 
 
         that he never noticed the motor to be particularly noisy.  
 
         Poundstone testified that in August, 1983 the cooling tower was 
 
         rebuilt and that it was moved inside the building.  He felt that 
 
         the change had not affected the noise level.  He testified that 
 
         no change was made in the pump motor or cooling equipment in 
 
         1985.  Poundstone stated that the arcing is like what occurs with 
 
         an electric arc welder and he did not consider it to be extremely 
 
         loud or like an explosion.  He described it as being more like a 
 
         crackling noise.
 
         
 
              Poundstone testified that claimant had never complained of 
 
         ringing in her ears and had never requested hearing tests.  He 
 
         stated that the first he knew of her complaint of tinnitus being 
 
         caused by her employment was in approximately 1984.
 
         
 
              Poundstone stated that he believes claimant does wear 
 
         hearing protection when in the plant and that a box of ear plugs 
 
         is available in the office for use.  Poundstone stated that 
 
         claimant has demonstrated no performance problems in her job due 
 
         to any hearing problem.
 
         
 
              Joyce Brennan has also supervised claimant in the heat 
 
         treatment department.  Brennan stated that claimant never 
 
         complained about motor noise and could not recall a time when
 
         
 
         
 
         the motor seemed to be unusually noisy.  Brennan stated that 
 
         claimant never complained of ringing in her ears due to her work 
 
         or asked for hearing protection.  Brennan was not aware of this 
 
         claim until the autumn of 1986.  Brennan stated that, in 1983, 
 
         hearing protection was always available in the office without a 
 
         special request.  Brennan testified that, when the heat treatment 
 
         machine arcs, it makes a crackling noise or sound, but that she 
 
         would not describe it as an explosion.  She stated that claimant 
 
         wears hearing protection now, but was unsure whether or not she 
 
         did in 1983 or 1984.
 
         
 
              John L. Dugan, Jr., the plant superintendent and personnel 
 
         manager since 1979, stated that everyone in the factory has had 
 
         hearing tests annually since 1983.  He testified that, as shown 
 
         in exhibit 3, a number of individuals who work in the noisiest 
 
         areas of the plant were tested.  Dugan had no knowledge of 
 
         claimant's hearing being tested before 1983 or of her ever 
 
         requesting a hearing test.
 
         
 
              Dugan described exhibit 2 as the results of noise level 
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   4
 
         
 
         
 
         testing that he conducted.
 
         
 
              Like Poundstone and Brennan, Dugan did not recall a time 
 
         when the motor at the tower was particularly noisy and stated 
 
         that claimant had not made any complaints about motor noise.  
 
         Dugan testified that the water cooling system pump and tower was 
 
         moved inside the building in 1982, that it is approximately 15 
 
         feet from claimant's work station to the motor, but that the move 
 
         in 1982 did not bring it any closer to her than what it had been 
 
         previously.  Dugan stated that his first notice of claimant's 
 
         claim was a letter from her attorney.  Dugan was not aware of 
 
         claimant missing any work due to tinnitus.
 
         
 
              Robert R. Updegraff, M.D., an otolaryngologist, testified 
 
         that tinnitus is a common problem which he sees daily in his 
 
         practice.  He stated that it develops from a number of causes, 
 
         including noise exposure.  Dr. Updegraff concluded that claimant 
 
         has non-vibratory tinnitus, a type that is very subjective.  He 
 
         characterized claimant's complaint as being relatively mild.  Dr. 
 
         Updegraff aided in drafting Chapter 85B of the Code, the 
 
         occupational hearing loss chapter, and stated that tinnitus is 
 
         not compensated under the occupational hearing loss chapter.  He 
 
         stated that the AMA guides do not provide a basis for providing 
 
         an impairment rating for tinnitus due, primarily, to the 
 
         subjective nature of the ailment.  He disagreed with the 
 
         impairment rating and method of rating employed by Eugene 
 
         Peterson, M.D., who found claimant to have a 10% functional 
 
         impairment of the body as a whole due to her tinnitus.  Dr. 
 
         Updegraff stated that tinnitus, from noise exposure, is not 
 
         generally progressive once the person is removed from the noise.  
 
         He stated, however, that if tinnitus is based upon noise 
 
         exposure, the effect of noise tends to be cumulative.  Dr. 
 
         Updegraff stated that claimant's tinnitus
 
         
 
         condition is compatible with exposure to excessive noise.  He 
 
         stated that, if her tinnitus developed at a time when she was 
 
         working in loud noise, a connection between the tinnitus and the 
 
         noise exposure is likely.
 
         
 
              Dr. Updegraff stated that the common treatment for tinnitus 
 
         such as claimant's is the use of background noise, such as a 
 
         radio.  He stated that the condition is seldom disabling and 
 
         often has a tendency to dissipate once the person is removed from 
 
         ongoing noise exposure.
 
         
 
              In his examination, Dr. Updegraff found claimant to have a 
 
         high-frequency bilateral hearing impairment of a type that is 
 
         commensurate with high noise exposure over a period of time and 
 
         that, with such a type of hearing impairment, tinnitus is not 
 
         unusual (respondents' exhibit 4, page 2).
 
         
 
              Claimant's exhibit A is the deposition of Eugene Peterson, 
 
         M.D., another otolaryngologist.  Dr. Peterson examined claimant 
 
         for her complaints of tinnitus.  He found her audiograms to show 
 
         a pattern that he described as classical for noise trauma with a 
 
         maximum hearing loss at the 4,000 to 6,000 cycle level.  He 
 
         stated that tinnitus occurs secondary to such hearing loss due to 
 
         damage to the inner ear cell fibers.  He expressed the opinion 
 
         that claimant's tinnitus was caused by her exposure to noise at 
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   5
 
         
 
         
 
         work (exhibit A, pages 7 and 8).
 
         
 
              Dr. Peterson felt that claimant had a 10% permanent partial 
 
         disability to the body as a whole related to the tinnitus 
 
         (claimant's exhibit A, pages 10 and 11).
 
         
 
              Donald Kurth, an industrial audiologist, testified by way of 
 
         deposition (respondents' exhibit 1).  Kurth has conducted 
 
         audiograms of employees at the Herschel Manufacturing Corporation 
 
         plant and stated that the first audiogram for claimant was in 
 
         1983 and that subsequent tests were administered in 1984, 1985 
 
         and 1987.  Kurth found claimant to have a high-frequency hearing 
 
         loss, but that it would not impede her work activities 
 
         (respondents' exhibit 1, page 19).  He agreed that occupational 
 
         noise exposure is one known cause of tinnitus, that he sees it in 
 
         a good deal of the individuals he tests, but that it does not 
 
         generally impede their ability to perform their work 
 
         (respondents' exhibit 1, pages 20 and 21).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
             Claimant brought this claim only under Chapter 85 and not 
 
         under Chapters 85A or 85B of the Code.  The various audiograms 
 
         which appear in the record show a bilateral high-frequency 
 
         hearing loss that is classic for the type that results from long 
 
         term exposure to high noise levels.  The loss is not sufficient, 
 
         however, to entitle claimant to any compensation for loss of 
 
         hearing under Chapter 85B of the Code as it appears that there is 
 
         no actual hearing disability of the type that is compensated 
 
         under Chapter 85B of the Code.  Tinnitus, if compensable at all, 
 
         is clearly not compensable under Chapter 85B of the Code.
 
         
 
              Tinnitus is sometimes considered to be an injury.  It is a 
 
         condition which can arise either from an acute trauma or from 
 
         long-term high level noise exposure.  Tinnitus has been held to 
 
         be a physical trauma.  Dotolo v. FMC Corporation, 375 N.W.2d 25 
 
         (Minn 1985).  The case was one where noise-induced tinnitus was a 
 
         basis for awarding compensation for mental disability.  Some 
 
         authorities considered tinnitus which results from long-term 
 
         noise exposure to be an occupational disease.  Moore v. Ford 
 
         Motor Co., 9 A.D.2d 165, 192 N.Y.S.2d 568 (1959).  The line of 
 
         demarcation between an injury produced by cumulative trauma and 
 
         an occupational disease is often unclear.  Carpal tunnel syndrome 
 
         is currently treated in this state as an injury.  Simbro v. 
 
         Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983).  Before Chapter 
 
         85 was amended in 1972, however, conditions such as bursitis, 
 
         synovitis and tenosynovitis were statutorily defined as an 
 
         occupational disease (section 85A.9 1971 Code of Iowa).  The 
 
         current definition of occupational disease as found in section 
 
         85A.9 does not appear to exclude any of the diseases or 
 
         conditions which were formerly considered to be an occupational 
 
         disease under the prior statute.  The Iowa Supreme Court has not 
 
         specifically addressed the issue of whether carpal tunnel 
 
         syndrome or tinnitus is an occupational disease compensable under 
 
         Chapter 85A or an injury compensable under Chapter 85.  In view 
 
         of the uncertainty as to how tinnitus should be compensated, a 
 
         dual analysis will be made.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   6
 
         
 
         
 
         evidence that her injury, or occupational disease, arose out of 
 
         and in the course of her employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976).  See also section 
 
         85A.8, Code of Iowa.  The noise level studies as contained in 
 
         respondents' exhibit 2 do not show particularly high levels of 
 
         noise exposure.  The accuracy of such testing, however, is not of 
 
         the quality that is commonly seen when an industrial hygienist 
 
         conducts a noise survey in order to arrive at a time-weighted 
 
         average noise level exposure.  Respondents' exhibit 3, the 1979 
 
         hearing test results for Herschel Manufacturing Corporation 
 
         employees, shows approximately half of the work force to have 
 
         been classified as AN which is a code which indicates that the 
 
         employee has normal hearing at speech frequencies, but some 
 
         hearing loss at higher frequencies which is often a first 
 
         indication of a noise-induced hearing loss.  The results are 
 
         certainly consistent with the existence of a noise exposure 
 
         hazard at the Herschel Manufacturing Corporation plant.  Whether 
 
         or not a noise level is injurious is something which is not 
 
         readily ascertainable by casual observation.  The perception of 
 
         noise is often a relative matter and is based, to some degree, 
 
         upon the individual's expectations.  For example, a manufacturing 
 
         plant may be relatively quiet, as manufacturing plants go, but 
 
         still a quite noisy place.  Drs. Peterson and Updegraff have both 
 
         indicated that claimant's tinnitus is consistent with her 
 
         high-frequency hearing impairment, that the high-frequency 
 
         hearing impairment is consistent with long-term noise exposure 
 
         and that the tinnitus, if it arose during a period of high-level 
 
         noise exposure, is likely related to that noise exposure.  The 
 
         only evidence of sustained long-term noise exposure for Judy 
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   7
 
         
 
         
 
         Mitchell is that she experienced at the Herschel Manufacturing 
 
         plant.  The high-frequency hearing loss she exhibits is found to 
 
         be a result of noise exposure at her place of employment and the 
 
         tinnitus is likewise found to be a result of noise exposure at 
 
         her place of employment.  It is not necessary for a noise level 
 
         to exceed the level specified in Code section 85B.5 in order to 
 
         be injurious or compensable. Muscatine County v. Morrison, ______ 
 
         N.W.2d _(Iowa, 1987).
 
         
 
              If claimant's tinnitus is treated as an occupational 
 
         disease, she is not entitled to receive compensation for any 
 
         degree of permanent disability because she has not reached the 
 
         point of disablement as defined in section 85A.4.  The employer 
 
         is, however, responsible for payment of the expenses of medical 
 
         treatment for the condition as provided by section 85A.5.
 
         
 
              If claimant's ailment is treated as an injury under the 
 
         provisions of Chapter 85 of the Code, the first question to be 
 
         addressed is whether it is a scheduled disability under section 
 
         85.34(2)(r) or a non-scheduled disability compensable under 
 
         section 85.34(2)(u).  The very nature of tinnitus is not so much 
 
         something which interferes with ability to hear as it is 
 
         something which impairs the individual's ability to concentrate 
 
         and their mental and emotional status.  For these reasons, if 
 
         tinnitus is treated as an injury arising from cumulative trauma, 
 
         it is compensable under McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).  McKeever is a case which essentially 
 
         applies the discovery rule to hold that an individual will not be 
 
         held to have discovered the seriousness of a condition until it 
 
         becomes disabling.  This avoids the running of the statute of 
 
         limitations until the worker has something substantial to recover 
 
         consistent with Sandbulte v. Farm Bureau Mutual Insurance Co., 
 
         343 N.W.2d 457 (Iowa 1984).  Claimant's condition has not yet 
 
         become disabling in the sense of McKeever and, if the discovery 
 
         rule is applied, her claim is certainly timely under both the 
 
         provisions of 85.23 and 85.26. There is a theory which provides 
 
         that a cumulative trauma injury cannot be compensated until it 
 
         produces disability in the sense of an inability to perform the 
 
         individual's normal employment duties, and that any petition 
 
         filed before such disability is premature and subject to 
 
         dismissal.  The history of this agency, however, has many cases 
 
         where permanent partial disability was awarded without there 
 
         being any loss of time from employment.  It is concluded that it 
 
         is not necessary for there to be actual inability to perform a 
 
         person's normal job in order to recover for permanent partial 
 
         disability that results from cumulative trauma.
 
         
 
              Since tinnitus is not a scheduled condition, it is to be 
 
         compensated under the provisions of section 85.34(2) as a 
 
         disability to the body as a whole.  Hughes v. Pacific Northwest 
 
         Bell, 61 Or. App. 566, 658 P.2d, 548 (1983).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   8
 
         
 
         
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         V. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              It is of significance that the tinnitus condition has not 
 
         caused claimant to be disabled from performing the normal duties 
 
         of her employment.  The condition is one which certainly is 
 
         aggravating and bothersome, but none of the medical authorities 
 
         has indicated that it seriously detracts from claimant's ability 
 
         to be employed.  In some cases tinnitus of a sufficiently severe 
 
         degree may cause disability, but this does not appear to be one 
 
         of those cases.  Since claimant's tinnitus has not caused her any 
 
         actual loss of earnings and does not appear to be disabling from 
 
         an industrial standpoint, no compensation for permanent partial 
 
         disability will be awarded.  This is the same result as in the 
 
         case of Hughes v. Pacific Northwest Bell, 61 Or. App. 566, 658 
 
         P.2nd 548 (1983).  The employer is, of course, responsible for 
 
         payment of treatment expenses under the provisions of section 
 
         85.27 of the Code.
 
         
 
              The result in this case is the same regardless of whether 
 
         claimant's tinnitus is considered to be an occupational disease 
 
         or an unscheduled injury arising from cumulative trauma to be 
 
         compensated industrially.  Claimant's claim was made under 
 
         Chapter 85 of the Code only.  The defense has not urged that the 
 
         condition is one which is compensable only under Chapter 85A, the 
 
         occupational disease statute.  It is concluded that tinnitus, 
 
         arising from long-term noise exposure, is a cumulative trauma 
 
         injury.
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Judy L. Mitchell was exposed to injurious levels of 
 
         noise in her employment with Herschel Manufacturing Corporation.
 
         
 
              2.  As a result of the noise exposure, Mitchell has 
 
         developed a high-frequency hearing loss and a mild degree of 
 
         tinnitus.
 
         
 
              3.  The tinnitus is not disabling from an industrial 
 
         standpoint and claimant has suffered no loss of earning capacity 
 
         as a result Of the condition.
 
         
 
              4.  The tinnitus is a result of cumulative trauma resulting 
 
         from noise.
 
         
 
              5.  The condition is not disabling in the sense that it has 
 
         made claimant unable to perform the normal duties of her 
 
         employment.
 
         
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page   9
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained injury in the nature of tinnitus 
 
         which arose out of and in the course of her employment with 
 
         Herschel Manufacturing Corporation.
 
         
 
              3. Since the injury is one resulting from cumulative trauma 
 
         and it has never progressed to the point of disablement, claimant 
 
         was not previously required to give notice or commence an action 
 
         and the claim is not barred by the provisions of sections 85.23 
 
         or 85.26 of the Code.
 
         
 
              4.  Tinnitus is a condition which is not compensated under 
 
         Chapter 85B of the Code; it is compensable as an injury to the 
 
         body as a whole under section 85.34(2)(u).
 
         
 
              5.  Where there has been no demonstrated loss of earning 
 
         capacity, an award for permanent partial disability is not 
 
         warranted, but the defendants are responsible for medical 
 
         expenses under the provisions of section 85.27.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant has no entitlement to 
 
         receive any compensation for permanent partial disability as the 
 
         injury is not shown to have produced any permanent disability.
 
         
 
              IT IS FURTHER ORDERED that defendants are responsible for 
 
         payment of the expenses of treatment for claimant's tinnitus 
 
         under the provisions of section 85.27.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action under the provisions of Division of Industrial Services' 
 
         Rule 343-4.33 in the amounts as follows:
 
         
 
               Dr. Peterson Deposition                  $147.20
 
               Expert Witness Fee, Dr. Peterson          150.00
 
               Cost of One Medical Report                 25.00
 
             Total                                      $322.20
 
         
 
              IT IS FURTHER ORDERED that defendants shall file Claim 
 
         Activity Reports as requested by this agency pursuant to Division 
 
         of Industrial Services' Rule 343-3.1.
 
         
 
         
 
         
 
              Signed and filed this 14th day of September, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         MITCHELL V. HERSCHEL MANUFACTURING CORPORATION
 
         Page  10
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Max Burkey
 
         Attorney at Law
 
         211 Shops Building
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Patricia J. Martin
 
         Attorney at Law
 
         300 Liberty Building
 
         Sixth & Grand
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.30, 1803
 
                                                 2203, 2208, 2209
 
                                                 Filed September 14, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JUDY L. MITCHELL,
 
          
 
              Claimant,
 
                                                  File No. 786976
 
          VS.
 
          
 
          HERSCHEL MANUFACTURING
 
          CORPORATION,                          A R B I T R A T I 0 N
 
          
 
              Employer,
 
          
 
          and                                     D E C I S I 0 N
 
          
 
          TRAVELERS INSURANCE,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30, 1803, 2203, 2208, 2209
 
         
 
              Thirty-nine-year-old lady was diagnosed with tinnitus which 
 
         both otolaryngologists felt was consistent with high-level noise 
 
         exposure, which exposure was corroborated by high frequency 
 
         hearing loss.  Her tinnitus was found to be an injury which arose 
 
         out of and in the course of employment, compensable as an injury 
 
         to the body as a whole under section 85.34(2)(u) rather than as a 
 
         scheduled hearing loss.  It was also found to be compensable 
 
         under Chapter 85 rather than under 85A or 85B.  A discussion of 
 
         the considerations is contained in the decision.  The injury was 
 
         one which arose from long-term noise exposure, but had not 
 
         produced a degree of hearing loss that would have been 
 
         compensable under Chapter 85B.  The condition, although 
 
         aggravating to claimant, was not found to be industrially 
 
         disabling and she was not awarded any permanent partial 
 
         disability, but the employer was held responsible for section 
 
         85.27 benefits.
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RUSS SEVERSON,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :    File Nos. 913829 & 787192
 
         DEPARTMENT OF PUBLIC DEFENSE, :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in arbitration brought by Russ 
 
         Severson, claimant, against the Department of Public Defense, 
 
         employer and the State of Iowa, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on January 11, 1985 and February 20, 1989.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner on May 13, 1991.  The matter was consid
 
         ered fully submitted at the close of the hearing.  The record in 
 
         this case consists of the testimony of claimant; joint exhibits 
 
         B-H; and, J-M and claimant's exhibits 1-4.
 
         
 
                                      issue
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved on May 13, 1991, the only issue presented for resolution 
 
         is the extent of claimant's entitlement to permanent partial dis
 
         ability benefits stipulated to be an industrial disability to the 
 
         body as a whole.
 
         
 
                                 findings of fact
 
         
 
              The undersigned has carefully considered all the testimony 
 
         given at the hearing, the arguments made, the evidence contained 
 
         in the exhibits herein, and makes the following findings:
 
         
 
              Claimant was born on December 1, 1932 and completed the 
 
         eleventh grade of school.  Prior to 1977, the claimant worked at 
 
         various times as a cook, mechanic, service station attendant, 
 
         roofer and custodian.  On September 19, 1977, he was hired by the 
 
         State of Iowa as a maintenance worker.  In this capacity, he 
 
         mowed grass, shoveled snow, worked on buildings, did repair work 
 
         and other general maintenance duties.  He has been at the Camp 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Dodge facility since 1977.  He did maintenance work for about a 
 
         year and then in 1978/79 a carpenter slot opened up and he 
 
         applied for and received the job.  In this capacity, he repaired 
 
         siding, windows, and furniture; remodeled buildings; tore out 
 
         walls and put in new ones; insulated buildings; and repaired 
 
         locks.  He is classified as Carpenter I.
 
         
 
              As to the January 11, 1985 injury, claimant testified that 
 
         he fell out of an army jeep and injured his left knee.  He was 
 
         seen by James Dolan, M.D., who referred him to Joshua D. 
 
         Kimelman, D.O., an orthopedist.  He was off work for 3 1/2 months 
 
         and went back to part-time duty, four hours a day, for three 
 
         weeks, and then full time duty.  After he returned to work, he 
 
         had back problems and was hospitalized in July 1985 and put in 
 
         traction.  He returned to his regular duties thereafter.
 
         
 
              Medical evidence pertaining to this injury indicates that in 
 
         February 1985, claimant was diagnosed with a chronic patellar 
 
         tendon tear.  It was repaired on February 18, 1985, at Mercy 
 
         Hospital.
 
         
 
              On July 11, 1985, claimant was admitted to Charter Hospital 
 
         with back pain.  He was treated conservatively and discharged on 
 
         July 16, 1985.  Thereafter, he was put on physical therapy.  
 
         Diagnosis of lumbosacral strain, chronic, without neurological 
 
         deficit, was made.  On January 10, 1986, Dr. Kimelman gave 
 
         claimant a 5 to 7 1/2 percent impairment to the left lower 
 
         extremity and a 2 1/2 percent impairment to the back (Exhibit H).
 
         
 
              Claimant testified that he received workers' compensation 
 
         benefits during the period of time he was off work due to the 
 
         January 11, 1985 injury.
 
         
 
              As to the injury which occurred on February 20, 1989, 
 
         claimant testified that, while at work, he slipped on ice, jammed 
 
         his left knee and hurt his back.  He underwent knee transplant 
 
         surgery in June 1989.
 
         
 
              He was initially seen by Dr. Dolan, who referred him to 
 
         Orthopedic Associates.  An arthroscopy was performed on March 16, 
 
         1989, and a diagnosis of Grade IV chondromalacia of the medial 
 
         femoral condyle in the femoral groove was made (Ex. H, page 8).
 
         
 
              Claimant had continued swelling in his left knee and he saw 
 
         Mark B. Kirkland, D.O., on April 12, 1989, for following-up eval
 
         uation.  He recommended a continuation of physical therapy.  How
 
         ever, claimant's problems persisted and in June 1989 he was given 
 
         the option of knee fusion or total knee reconstruction.  Claimant 
 
         opted for left total knee reconstruction and surgery was per
 
         formed by Martin Rosenfeld, D.O., on June 26, 1989, at Mercy 
 
         Hospital (Ex. G, p. 12).
 
         
 
              Claimant testified that he was off work from February 1989 
 
         through December 1989.  He returned to part-time employment for 
 
         1 1/2 months and then to full time work.  He was put in charge of 
 
         the tool room at Camp Dodge and does all of the lock work and 
 
         plaque engraving.  He testified that he spends 50 percent of his 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         time as a locksmith and the other 50 percent engraving plaques 
 
         and working in the tool room.  He testified that he cannot climb 
 
         more than three steps or stand more than 30 minutes.  Because of 
 
         his limitations, he cannot advance to the Carpenter II position.  
 
         As a Carpenter I his gross income is $852.00 every two weeks.  
 
         The Carpenter II salary is $916.00 every two weeks.
 
         
 
              Claimant was seen by Dr. Rosenfeld on December 4, 1989, for 
 
         follow-up evaluation.  He recommended minimal walking, no climb
 
         ing, no standing and no heavy lifting.  Back x-rays showed some 
 
         disc degeneration (Ex. H, p. 13).
 
         
 
              On April 5, 1991, Dr. Dolan gave claimant a 24 percent 
 
         permanent partial disability rating to the body as a whole 
 
         (Ex. A-1).
 
         
 
                                conclusions of law
 
         
 
              The only issue to be determined by the undersigned is the 
 
         extent of permanent disability.  Dr. Dolan gave claimant an 
 
         impairment rating of 24 percent and physicians who have treated 
 
         and/or examined claimant have imposed restrictions on his employ
 
         ability.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity 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 latter 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 proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability 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 qualifi
 
         cations 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 arriv
 
         ing at the determination of the degree of industrial disability.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              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, moti
 
         vation - 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, l985).
 
         
 
              Claimant, age 58 at the time of the hearing, has an eleventh 
 
         grade education with no other formal education experience.  
 
         Claimant's work experience has been primarily as a mechanic and 
 
         carpenter.  Since 1989, claimant has worked primarily as a lock
 
         smith and performed other light duties.  Since 1989, he has had 
 
         work restrictions from his physician which include no squatting, 
 
         bending, running, climbing, standing more than 30 minutes at a 
 
         time, heavy lifting and carrying.  These restrictions effectively 
 
         operate to remove claimant from advancing to Carpenter II with 
 
         the State of Iowa and other areas of the labor market.  Claimant 
 
         testified that his job with the state is secure and he plans to 
 
         retain it until retirement at age 65.  Nevertheless, claimant has 
 
         suffered a loss of earning capacity.  Claimant can no longer work 
 
         as a mechanic, custodian, maintenance worker or general 
 
         carpenter.  Considering then all of the elements of industrial 
 
         disability, it is determined that claimant has established a 
 
         permanent partial disability of 30 percent for industrial pur
 
         poses entitling him to 150 weeks of permanent partial disability 
 
         benefits.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              1.  As to claim number 787192, claimant takes nothing fur
 
         ther from this proceeding.
 
         
 
              2.  As to claim number 913829, defendants shall pay to 
 
         claimant one hundred fifty (150) weeks of permanent partial 
 
         disability benefits at the stipulated rate of two hundred 
 
         thirty-six and 58/l00 dollars ($236.58) commencing December 7, 
 
         1989.
 
         
 
              3.  Defendant shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              4.  Benefits that have accrued shall be paid in a lump sum 
 
         together with statutory interest pursuant to Iowa Code section 
 
         85.30.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              5.  Defendant shall file claim activity reports as requested 
 
         by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              6.  Defendant shall pay the costs of this action pursuant to 
 
         rule 343 IAC 4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of May, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines  IA  50309
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines  IA  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed May 31, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RUSS SEVERSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 913829 & 787192
 
            DEPARTMENT OF PUBLIC DEFENSE, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            The only issue presented for resolution is the extent of 
 
            claimant's entitlement to permanent partial disability 
 
            benefits stipulated to be an industrial disability to the 
 
            body as a whole.
 
            Claimant, age 58, eleventh grade education, manual labor 
 
            work experience, restricted to light work due to knee 
 
            transplant surgery in June 1989, awarded 30 percent 
 
            industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         5-2905, 1802, 1803
 
         Filed August 30, 1991
 
         Byron K. Orton
 
         LPW
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RANDALL LEE ELLIS,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 787559
 
         B & B DISTRIBUTING CO., INC., :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         CIGNA,                        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-2905
 
         The standard of review on appeal of an arbitration decision is de 
 
         novo.
 
         
 
         1802
 
         Held that claimant failed to prove a causal connection between 
 
         his work-related automobile accident of January 31, 1985 and the 
 
         time he was off work following his April 16, 1987 nonwork 
 
         automobile accident.  The second nonwork accident on April 16, 
 
         1987 is the proximate cause of claimant's missing work from May 
 
         4, 1987 through November 8, 1987.  Claimant returned to his job 
 
         following the January 31, 1985 work injury working up to one 
 
         hundred hours a week.  While claimant continued to experience 
 
         chronic cervical strain which was treated with medication and a 
 
         TENS unit prior to the April 16, 1987 accident, he was able to 
 
         work.
 
         
 
         1803
 
         Held that claimant failed to prove that he was terminated by his 
 
         employer on account of his work-related injury, therefore, the 
 
         issue of whether claimant was entitled to an award of disability 
 
         was moot.  In reviewing the evidence, it was determined that the 
 
         testimony of the employer's manager that they intended to 
 
         terminate claimant's employment on the date of the accident was 
 
         self serving.  Next, the evidence was reviewed to determine 
 
         whether claimant was terminated on account of his work-related 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         injury.  Claimant worked for the employer for more than two years 
 
         following his work-related accident wearing a TENS unit, taking 
 
         medication and occasionally wearing a cervical collar.  Following 
 
         the April 16, 1987 nonwork accident, claimant was not allowed to 
 
         return to work.  It was determined that claimant failed to prove 
 
         he was terminated on account of his work-related injury.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             
 
             
 
         RANDALL LEE ELLIS,
 
         
 
              Claimant,
 
                                                   File No. 787559
 
         vs.
 
                                                A R B I T R A T I O N
 
         B & B DISTRIBUTING CO., INC.,
 
                                                   D E C I S I O N
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     OCT 12 1989
 
         CIGNA,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
             
 
                              STATEMENT OF THE CASE
 
             
 
             This is a proceeding in arbitration brought by Randall Lee 
 
         Ellis, claimant, against B & B Distributing Company, Inc., 
 
         employer (hereinafter referred to as B & B), and CIGNA Insurance 
 
         Companies, insurance carrier, for workers' compensation benefits 
 
         as a result of an alleged injury on January 31, 1985.  On April 
 
         13, 1989, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
             
 
             The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
             
 
             According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
             
 
             1.  On January 31, 1985, claimant received an injury which 
 
         arose out of and in the course of his employment with B & B.
 
             
 
             2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
             
 
             3.  Claimant's rate of weekly compensation, in the event of 
 
         an award of weekly benefits from this proceeding, shall be 
 
         $184.57.
 
             
 
             4.  Entitlement to medical benefits is no longer in dispute.
 
             
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             5.  Claimant was paid weekly benefits in the amount of 1 2/7 
 
         weeks prior to the hearing.
 
             
 
                                      ISSUES
 
             
 
             The parties submitted the following issues for determination 
 
         in this proceeding:
 
             
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disabilities; and,
 
             
 
             II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
             
 
                                STATEMENT OF FACTS
 
             
 
             The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
             
 
             Claimant testified that he worked for Robert Pecka, owner of 
 
         B & B Distributing and Sentaco Industries, from the late 1970's 
 
         when he was in high school until April 16, 1987.  On April 16, 
 
         1987, claimant was involved in a nonwork related auto accident 
 
         and Pecka would not allow claimant to return to work after this 
 
         accident despite releases given by claimant's family physician, 
 
         Jesse Landhuis, M.D.  In his testimony, Pecka did not explain why 
 
         he did not allow claimant to return to work.  In the medical 
 
         records of Dr. Landhuis, the doctor talked to a manager employed 
 
         by Pecka and was told that he was concerned about claimant's 
 
         ability to perform his job safely and adequately because of the 
 
         wearing of a cervical collar and the taking of medication while 
 
         on the job and that it was not logical for claimant to work all 
 
         day and then go to physical therapy.  Dr. Landhuis indicated to 
 
         the employer the importance of returning an injured worker back 
 
         to work in the physical rehabilitation process but agreed to keep 
 
         him off work for another month.  However, claimant was never 
 
         allowed to return to work for B & B or Sentaco or any other 
 
         company owned by Pecka.
 
             
 
             Claimant stated that at the time of the work injury in 
 
         January 1985, he was a salaried employee earning approximately 
 
         $1,000 to $1,200 a month performing supervisory and physical 
 
         labor duties.  Claimant was required to perform many duties in 
 
         the installation and repair of TV sets and satellite dishes, the 
 
         installation of car stereos, repair of snowmobiles and various 
 
         other duties including personal work for Mr. Pecka.  In February 
 
         1987, apparently as a result of an altercation claimant had with 
 
         a fellow employee and his alleged inability to get along with 
 
         fellow employees, claimant was demoted to a $5.00 an hour 
 
         nonsalaried job and reassigned to assembly work in one of Pecka's 
 
         fiberglass fabrication plants, Sentaco.  This plant fabricated 
 
         sleeper cabs which are installed on the cabs of large tractor 
 
         trailer semi trucks.  Both of these jobs, especially the 
 
         fabrication job, required claimant to perform heavy lifting, 
 
         bending and stooping. Claimant stated that after the work injury 
 
         in January 1985, he seldom lifted over 50 pounds without 
 
         assistance.  Pecka testified that he was never told by claimant, 
 
         nor did claimant in any other manner inform him of any physical 
 
         problems he may have had while performing work at either of his 
 
         two companies.  He stated that claimant performed all work that 
 
         was assigned to him including extensive overtime work while in 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         the fabrication plant.  However, Pecka admitted to observing 
 
         claimant wearing a cervical collar and a TENS unit (an electrical 
 
         nerve stimulation device to relieve pain) after the work injury 
 
         of January 1985, and before the auto accident in April 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             The work injury in January 1985 is not disputed.  Claimant 
 
         testified that while delivering a television set to a customer, 
 
         he was involved in an auto accident with an elderly couple.  
 
         After the accident he initially sought chiropractic care but 
 
         later began treating with his family physician, Dr. Landhuis, for 
 
         chronic neck, left arm and shoulder pain along with headaches.  
 
         Upon a diagnosis of cervical strain secondary to the auto 
 
         accident, Dr. Landhuis treated claimant with limitations on 
 
         activity, use of a cervical collar and medication.  Claimant was 
 
         off work at that time from February 4, 1985 until February 11, 
 
         1985.  Dr. Landhuis treated claimant for a continuation of his 
 
         symptoms through April 17, 1985.  At that time the doctor 
 
         indicated that claimant should gradually improve and that he 
 
         should have no permanent disability.
 
             
 
             Claimant was referred to Robert Hayne, M.D., a board 
 
         certified neurosurgeon, in June 1985.  Dr. Hayne treated claimant 
 
         until September 1985 for persistent complaints of pain in his 
 
         neck, upper back, left shoulder and left arm.  Dr. Hayne 
 
         indicates that his testing did not reveal any spinal 
 
         abnormalities or any other cause for claimant's problems.  Dr. 
 
         Hayne indicated that an EMG test revealed to him that claimant 
 
         had left carpal tunnel syndrome but that he did not feel 
 
         claimant's symptoms were related to this problem.  In his 
 
         deposition, Dr. Hayne stated that he felt that claimant's 
 
         symptoms were psychosomatic or the result of a neurosis because 
 
         he could not explain claimant's difficulties. There was no 
 
         evidence in the record pertaining to Dr. Haynes qualifications in 
 
         psychology, psychiatry, or the treatment of these conditions.  
 
         Dr. Hayne opined in his deposition that claimant's symptoms would 
 
         have eventually resolved had it not been for the second auto 
 
         accident in April of 1987.  Dr. Hayne did not explain why 
 
         claimant continued to have symptoms for over two years after the 
 
         1985 auto accident and shortly before the April 1987 accident.
 
             
 
             Claimant was referred to the Neurology Department of the 
 
         University of Iowa Hospitals and Clinics in November of 1985 with 
 
         persistent complaints of neck, left shoulder, left arm pain and 
 
         headaches.  Physicians in this department diagnosed "diffused 
 
         musculoskeletal pain with no objective weakness" and treated 
 
         claimant with medication and limitations on activity.  The 
 
         doctors in the department did not agree with Dr. Haynes diagnosis 
 
         of carpal tunnel syndrome.  Claimant returned to the department 
 
         in March 1986 and was prescribed use of a TENS unit to relieve 
 
         pain during activity.  However, departmental physicians,still 
 
         could not explain the cause of claimant's pain and stated that 
 
         there was nothing more they could do for him.  In June 1986, 
 
         claimant returned and Arnold Menezes, M.D., Professor of 
 
         Neurology, stated that he felt claimant's problem was a C7 root 
 
         dysfunction and recommended that claimant continue wearing the 
 
         cervical collar and taking medication.  Claimant testified that 
 
         he continued working with this collar and continued using his 
 
         TENS unit to relieve pain.  Further testing of claimant in June 
 
         and July 1986 at the University of Iowa Hospitals and Clinics 
 
         revealed some disc bulging in the cervical spine but no evidence 
 
         of any root impingement.  Again, the cause of claimant's pain was 
 
         uncertain according to University of Iowa Hospitals.  Dr. Menezes 
 
         stated that there was no lesion present which could be corrected 
 
         surgically.  Claimant was to continue on medication.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             On April 10, 1987, claimant returned to Dr. Landhuis and 
 
         stated that there was no improvement in his condition.  He 
 
         complained of tired neck muscles and sharp pain on the left side 
 
         on occasion with activity and difficulties holding his head 
 
         upright while working in a bent over position or driving.  He 
 
         also continued to have arm pain.  Dr. Landhuis still causally 
 
         connected this pain to the January 1985 accident.
 
             
 
             On April 16, 1987, while riding in a car with his wife, 
 
         claimant and his wife were struck from the rear by another 
 
         vehicle and claimant experienced a reoccurrence of his neck, 
 
         shoulder and arm pain.  Claimant sought immediate treatment from 
 
         Dr. Landhuis at that time who noted also low back pain.  Claimant 
 
         was taken off work until May 4, 1987 and told to continue taking 
 
         medication, continue taking physical therapy, and continue using 
 
         his TENS unit.  As stated above, claimant was not allowed to 
 
         return to work after this accident.  Dr. Landhuis indicated that 
 
         the low back pain resolved.
 
             
 
             Claimant testified he began a treatment of pain therapy and 
 
         work hardening from the University of Iowa Hospitals in June 1987 
 
         which extended until November 1987.  In August 1987, doctors at 
 
         the neurology department felt that he had sympathetic dystrophy 
 
         of the arm and five stellate ganglion blocks were performed to 
 
         treat this possible condition.  Claimant reported several hours 
 
         of benefit from this procedure and it was repeated.  No other 
 
         information was submitted from the University of Iowa Hospitals 
 
         with reference for this treatment.
 
             
 
             On November 5, 1987, claimant reported to Dr. Landhuis that 
 
         as a result of the block therapy he was 100 percent better with 
 
         no pain.  Dr. Landhuis then released claimant to return to work 
 
         on November 9, 1987.  Claimant telephoned Dr. Landhuis on a 
 
         couple of occasions in 1988 to renew his prescriptions.  In June 
 
         1988, claimant was admitted for evaluation at a local hospital 
 
         for psychological depression.  However, no doctors at the 
 
         hospital could not find any psychological illness and claimant 
 
         was referred for outpatient care of his depression.  According to 
 
         the physicians this depression appeared to stem from his 
 
         financial problems and feelings he was treated unfairly by his 
 
         former employer after being injured on the job.
 
             
 
             Claimant testified that he now has returned to work with a 
 
         former employee of B & B and works approximately eight hours a 
 
         day as a construction worker.  This work involves carpentry and 
 
         the remodeling of homes including roofing work.  Claimant states 
 
         that he limits his lifting in this job.  Claimant states that his 
 
         neck gets tired on occasion and he has learned to quit working 
 
         when he experiences problems.
 
             
 
                           APPLICABLE LAW AND ANALYSIS
 
             
 
             Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination and their evidence as to the nature and extent 
 
         of the injury and disabilities following each auto accident.  
 
         From his demeanor while testifying, claimant will be found 
 
         credible.  With reference to defense witnesses, Robert Pecka was 
 
         not convincing when he stated he had no knowledge that claimant 
 
         had difficulty performing his work after the January 1985 
 
         accident.  Pecka admitted that he observed claimant wearing a 
 
         neck collar and TENS unit continuously at work after the work 
 
         injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury. Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity. However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 
             
 
             The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
             
 
             Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
             
 
             In the case sub judice, claimant has not shown by a 
 
         preponderance of the evidence that he suffers from a permanent 
 
         partial impairment.  The only opinion in the record is that of 
 
         Dr. Hayne which is against the claimant on this issue.  However, 
 
         Dr. Hayne was not very convincing in his feelings that claimant's 
 
         complaints of pain in the neck, left shoulder and left arm were 
 
         psychosomatic.  Dr. Hayne has not been medically trained in the 
 
         diagnoses and treatment of neurosis or psychosis.  It is quite 
 
         clear that other physicians who have treated claimant including 
 
         the Neurology Department at the University of Iowa Hospitals and 
 
         Clinics do not feel that the symptoms are psychosomatic and 
 
         actively treated this condition for several months.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             There is little question that all the care and treatment 
 
         claimant received for his neck, left shoulder and arm pain 
 
         is.causally connected to the work injury.  This is the clear view 
 
         of claimant's family physician, Dr. Landhuis.  Likewise, 
 
         claimant's absences from work to receive treatment from Dr. 
 
         Landhuis and the University of Iowa Hospitals and Clinics 
 
         following the April 1987 car accident were causally connected to 
 
         the injury.  Claimant suffered exactly the same symptoms before 
 
         and after the April 1987 accident.  Claimant was credible when he 
 
         testified that the second accident did not change his condition. 
 
         As stated above, claimant only has to show that the work injury 
 
         was a significant factor in precipitating disability, not the 
 
         only factor.  According to Dr. Landhuis's records, claimant was 
 
         not allowed to return to work by his employer. due to their fear 
 
         of reinjury and inability to perform duties as a result of 
 
         wearing a cervical collar and use of medication.  They also 
 
         objected to claimant taking physical therapy.  Claimant was 
 
         clearly taking medication, wearing a cervical collar and 
 
         receiving physical therapy for almost two years prior to the 
 
         second car accident as a result of the January 1985 work injury.
 
             
 
             Also, in addition to full healing period benefits for the 
 
         times off work until a final release to duty on November 9, 1987, 
 
         claimant is entitled to permanent disability benefits without a 
 
         showing of permanent partial impairment under the theory of 
 
         Blacksmith v. All-American, Inc., cited above.  Claimant was 
 
         terminated due to the treatment modalities he was receiving as a 
 
         result of the work injury in January of 1985 and this job 
 
         transfer or loss of his job resulted in a severe loss of earnings 
 
         and a severe economic hardship.  Disability caused by a job 
 
         transfer is compensable under the theory of Blacksmith.  
 
         Therefore, benefits will be awarded equivalent to a 10 percent 
 
         permanent partial disability.
 
             
 
                                 FINDINGS OF FACT
 
             
 
             1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
             
 
             2.  The work injury of January 31, 1985, was a cause of a 
 
         period of disability from work beginning on February 4, 1985 
 
         through February 11, 1985 and from May 4, 1987 through November 
 
         8, 1987, at which time claimant reached maximum healing.  During 
 
         this time claimant received extensive treatment of symptoms 
 
         caused by the work injury consisting of pain in the neck, left 
 
         shoulder and left arm.  Various treatment modalities were 
 
         utilized such as limitations on activity, medications for pain 
 
         and inflammation, home exercises, supervised physical therapy, 
 
         trigger point and other injections, use of a cervical collar and 
 
         use of electronic pain relief devices.  Although claimant had a 
 
         second nonwork related auto accident on April 16, 1987, 
 
         precipitating neck, shoulder and arm pain, this accident did not 
 
         change claimant's condition.  Claimant was not allowed to return 
 
         to work by his employer after April 16, 1987, due to claimant's 
 
         use of a cervical collar and medication at work.  However, 
 
         claimant was receiving such treatment modalities for over two 
 
         years prior to the second auto accident.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             3.  Claimant has not shown by the preponderance of the 
 
         evidence that the work injury of January 31, 1985, was a cause of 
 
         any permanent partial functional impairment.  Claimant certainly 
 
         experienced pain while working but has returned to work as a 
 
         carpenter performing heavy work.
 
             
 
             4.  The work injury of January 31, 1985, and the employer's 
 
         refusal to return claimant to work due to treatment precipitated 
 
         by this work injury, is a cause of.a 10 percent loss of earning 
 
         capacity.  Claimant was without income from any source for an 
 
         extended period of time as a result of the employer's refusal to 
 
         return claimant to work after April 16, 1987, for reasons related 
 
         to the January 31, 1985 work injury.
 
             
 
                                CONCLUSIONS OF LAW
 
             
 
             Claimant has established under law entitlement to 28 1/7 
 
         weeks of healing period benefits and 50 weeks of permanent 
 
         partial disability benefits.
 
             
 
                                      ORDER
 
             
 
             1.  Defendants shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         eighty-four and 57/100 dollars ($184.57) per week from November 
 
         9, 1987.
 
             
 
             2.  Defendants shall pay to claimant healing period benefits 
 
         from February 4, 1985 through February 11, 1985 and from May 4, 
 
         1987 through November 8, 1987 at the rate of one hundred 
 
         eighty-four and 57/100 dollars ($184.57) per week.
 
             
 
             3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit for benefits previously paid.
 
             
 
             4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
             
 
             5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
             
 
             6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
             
 
             
 
             Signed and filed this 12th day of October, 1989.
 
             
 
             
 
             
 
             
 
             
 
             
 
                                           LARRY P. WALSHIRE
 

 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
                                           
 
             
 
         Copies To:
 
         
 
         Mr. Blake Parker
 
         Attorney at Law
 
         350 Boston Centre
 
         Fort Dodge, IA  50501
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, IA  50312
 
             
 
             
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       1803
 
                                       Filed October 12, 1989
 
                                       LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDALL LEE ELLIS,
 
         
 
              Claimant,
 
                                                 File No. 787559
 
         vs.
 
                                              A R B I T R A T I O N
 
         B & B DISTRIBUTING CO., INC.,
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Despite a failure to show permanent partial impairment by a 
 
         preponderance of the evidence, claimant was awarded benefits 
 
         equivalent to a 10 percent permanent partial disability under the 
 
         theory of Blacksmith v. All-American, Inc.  Claimant was not 
 
         allowed to return to work due to a fear by his employer of 
 
         reinjury and an inability to perform duties as a result of 
 
         treatment modalities prescribed for treatment of the work injury.