BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         TARGET/DAYTON HUDSON,
 
         
 
              Employer,
 
         
 
         and
 
                                                 File No. 797035
 
         THE HARTFORD INSURANCE CO.,
 
                                                 D E C I S I 0 N
 
              Insurance Carrier,
 
                                                      0 N
 
         VS.
 
                                                S E C T I 0 N  85.27
 
         CAROL S. THOMAS,
 
                                                  B E N E F I T S
 
              Claimant,
 
         
 
         and
 
         
 
         ST. JOSEPH HOSPITAL,
 
         
 
              Intervenor.
 
         
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by the Hartford Insurance 
 
         Company, insurance carrier, against St. Joseph Hospital, 
 
         intervenor, for a determination of the fairness and 
 
         reasonableness of certain charges for medical treatment provided 
 
         to Carol S. Thomas, claimant.  This matter was heard before the 
 
         undersigned on January 28, 1986 at the courthouse in Ottumwa, 
 
         Wapello County, Iowa.  It was considered fully submitted at the 
 
         conclusion of the hearing.
 
         
 
              The record consists of the testimony of Rhonda Chalus and 
 
         James H. Ragland; insurance carrier exhibits 1 through 4; and 
 
         intervenor exhibits 3 and 4.
 
         
 
                            STIPULATION AND ISSUE
 
         
 
              The sole issue in this case is whether certain charges for 
 
         medication are fair and reasonable.  The parties stipulated that 
 
         the treatment was reasonably necessary for claimant's treatment.
 
         
 
                             EVIDENCE  PRESENTED
 
         
 
              Rhonda Chalu s testified that she is employed by Intracorp, 
 
         a medical and hospital services reviewing agency.  She said she
 
         has been employed by Intracorp since February 1985.  She advised 
 
         that Intracorp has no affiliation with the Hartford Insurance 
 
         Company except having provided their review services.  Ms. Chalus 
 
         stated that in her work at Intracorp she has had occasion to 
 
         review hospital charges throughout the state of Iowa.
 
         
 

 
         
 
         
 
         
 
         THOMAS V. TARGET/DAYTON HUDSON
 
         Page   2
 
         
 
         
 
              Ms. Chalus stated she reviewed the charges for medical 
 
         services for Ms. Thomas.  She testified that the charges for the 
 
         rabies vaccine administered to Ms. Thomas by St. Joseph Hospital 
 
         were not reasonable and that a reasonable charge would be $54.37 
 
         per shot.
 
         
 
              On cross-examination Ms. Chalus stated that she based her 
 
         opinion of the reasonableness of the charges on the average price 
 
         in Des Moines, Iowa.  She said she did not check to see what was 
 
         charged in Ottumwa, Iowa.  She did not know what the charges 
 
         would have been to the Ottumwa hospital to get the vaccine from 
 
         Des Moines.  She also said she was not aware of where the Ottumwa 
 
         hospital obtained the vaccine.  Ms. Chalus said she did not know 
 
         the Ottumwa hospital was charged $50 to $55 for the vaccine.  She 
 
         conceded that she had no detailed knowledge of the hospitals 
 
         billing practices.
 
         
 
              Jim Ragland testified that he is the administrator and 
 
         fiscal officer at St. Joseph Hospital in Ottumwa, Iowa, and has 
 
         been employed in that capacity since 1974.  He advised that the 
 
         hospital applies a standard formula to arrive at pharmaceutical 
 
         charges which is designed to cover overhead, including the costs 
 
         of staff.  As an example, he said that drugs costing between $35 
 
         and $75 are billed at 2.1 times costs.  He said that the vaccine 
 
         used for Ms. Thomas was obtained from the hospital in Chariton, 
 
         Iowa.  He advised that Chariton is closer than Des Moines and 
 
         that the vaccine is to be administered within twenty-four to 
 
         forty-eight hours after an animal bite.
 
         
 
              On cross-examination Mr. Ragland stated that the hospital is 
 
         limited by regulation for what it can charge medical patients and 
 
         that Blue Cross limits payments to five percent over costs.  Blue 
 
         Cross he said guarantees payment within ten days.  He admitted 
 
         that individuals and other health insurance companies, including 
 
         workers' compensation, are not charged by specific guides but 
 
         rather subject to the general hospital guides which allows 
 
         recovery of some charges not allowed by Blue Cross and Medicaid.
 
         
 
              Exhibit 1 is a copy of the hospital records concerning 
 
         claimant's treatment.  Exhibit 2 is a copy of a check from the 
 
         Hartford Insurance Company to St. Joseph Hospital in the amount 
 
         of $518.05. Exhibit 3 is a copy of the bill for services rendered 
 
         to Ms. Thomas in the total amount of  $1,146.20. The bill shows 
 
         that the rabies vaccine was charged three times at $119 and two 
 
         times at $124.  Exhibit 4 is an offer of confession
 
         
 
         
 
         of judgment by the Hartford Insurance Company in favor of St. 
 
         Joseph Hospital in the amount of $300.
 
         
 
              Intervenor's exhibit 3 is a copy of the review memo prepared 
 
         by Ms. Chalus.  Intervenor's exhibit 4 is a copy of a letter from 
 
         Mr. Ragland to the Hartford Insurance Company requesting full 
 
         payment for services delivered to Ms. Thomas.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              The burden of proof generally rests on the party asserting 
 
         an affirmative issue; that is, the general civil rule imposes the 
 

 
         
 
         
 
         
 
         THOMAS V. TARGET/DAYTON HUDSON
 
         Page   3
 
         
 
         
 
         burden of proof on an issue upon the party who would suffer loss 
 
         if the issue were not established.  Gipson v. Iowa Department of 
 
         Job Service, 315 N.W.2d 834 (Ia. Ct.  App. 1981).  It has been 
 
         held in Iowa that the burden of proof of the value of services 
 
         rests with the medical provider.  Tedrow v. Johnson, 167 Iowa 
 
         513, 149 N.W. 645 (1914).
 
         
 
              A physician may take into account in establishing charges 
 
         the fact that he may not be able to recover on every account but 
 
         he may not base charges upon a particular persons ability to pay. 
 
         Robinson v. Campbell, 47 Iowa 625 (1878).
 
         
 
              St. Joseph Hospital has established that their general 
 
         practice of applying a multiplier to their costs is a reasonable 
 
         billing practice.  Noticeably absent from this record, however, 
 
         is evidence of the costs of the vaccine to the hospital.  The 
 
         only suggestion as to the hospital's costs came in the form of a 
 
         question on cross-examination which suggested the cost was $50 
 
         for the rabies vaccine and $55 for the immune goblin.  This would 
 
         be compatible with the costs from the hospitals in Des Moines.  
 
         If this indeed was the costs, then the hospital did not follow 
 
         its general billing practice in this case.  Using the 2.1 
 
         multiplier the charges would be $105 and $115.50 respectively.
 
         
 
              Since the record is not clear on the costs of the drugs to 
 
         St. Joseph Hospital, the cost will be found to be $50 for the 
 
         rabies vaccine.  Applying the hospital's formula, they have 
 
         proven the reasonable and fair value of the rabies vaccine to be 
 
         $105 per vaccination.  A cost of $55 for the immune goblin will 
 
         be found allowing the charge of $115.
 
         
 
              Accordingly, the charges for the rabies vaccine will be 
 
         reduced by a total of $80 and charges in the total amount of 
 
         $1,066.20 are approved.  The Hartford Insurance Company has 
 
         previously paid $518.05 leaving a balance due of $548.15.
 
         
 
                           FINDINGS OF FACT
 
         
 
              WHEREFORE, the following facts are found:
 
         
 
              1.  St. Joseph Hospital provided medical treatment and 
 
         hospital services to Carol Thomas as the result of an injury she 
 
         received arising out of and in the course of her employment on 
 
         January 19, 1985.
 
         
 
              2.  St. Joseph Hospital applies a standard cost plus formula 
 
         to determine charges for pharmaceutical services.
 
         
 
              3.  The cost plus formula used by St. Joseph Hospital is 
 
         fair and reasonable.
 
         
 
              4.  Applying the cost plus formula the value of the rabies 
 
         vaccine given to Carol Thomas is $105 per vaccination.
 
         
 
              5.  The fair value of all services rendered to Carol Thomas 
 
         are $1,066.20.
 
         
 
              6.  The Hartford Insurance Company has previously paid St. 
 
         Joseph Hospital the sum if $518.05.
 

 
         
 
         
 
         
 
         THOMAS V. TARGET/DAYTON HUDSON
 
         Page   4
 
         
 
         
 
         
 
                              CONCLUSION OF LAW
 
         
 
              IT IS THEREFORE CONCLUDED that St. Joseph Hospital has 
 
         proven by a preponderance of the evidence that the fair and 
 
         reasonable value of services rendered to Carol S. Thomas is one 
 
         thousand sixty-six and 20/100 dollars ($1,066.20).
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that the Hartford Insurance Company 
 
         pay the balance due for services for treatment of Carol S. Thomas 
 
         to St. Joseph Hospital in the amount,of five hundred forty-eight 
 
         and 15/100 dollars ($548.15).
 
         
 
              The costs of this action are taxed to the Hartford 
 
         Insurance Company.
 
         
 
                Signed and filed this 19th day of March, 1986.
 
         
 
                                            STEVEN E. ORT
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         1040 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. John N. Moreland
 
         Attorney at Law
 
         211 East Main Street
 
         P. 0. Box 250
 
         Ottumwa, Iowa 52501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1404; 2505
 
                                                 March 19, 1986
 
                                                 STEVEN E. ORT
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         TARGET/DAYTON HUDSON,
 
         
 
              Employer,
 
         
 
         and
 
                                                 File No. 797035
 
         THE HARTFORD INSURANCE CO.,
 
                                                 D E C I S I 0 N
 
              Insurance Carrier,
 
                                                      0 N
 
         VS.
 
                                                S E C T I 0 N  85.27
 
         CAROL S. THOMAS,
 
                                                 B E N E F I T S
 
              Claimant,
 
         
 
         and
 
         
 
         ST. JOSEPH HOSPITAL,
 
         
 
              Intervenor.
 
         
 
         _________________________________________________________________
 
         
 
         1404; 2505
 
         
 
              This was an action between a medical provider and an insurer 
 
         to determine the reasonableness of charges for medical service.  
 
         Held it was provider's burden of proof to establish 
 
         reasonableness of charges.  Evidence showed medical provider's 
 
         billing practices were reasonable but not followed in this case.  
 
         Applying the billing practice to the charges in this case 
 
         resulted in a reduction of charges by $80.00.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MARGARET MEYER, Surviving
 
         Spouse, and MARVIN H. MEYER
 
         ESTATE by MARGARET MEYER,
 
         Executor,                              File No.  797037
 
         
 
              Claimant,                      A R B I T R A T I O N
 
         
 
         vs.                                    D E C I S I O N
 
         
 
         STATE OF IOWA, IOWA STATE
 
         PENITENTIARY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
         
 
              This is a proceeding in arbitration brought by Margaret 
 
         Meyer, surviving spouse, and Marvin H. Meyer Estate by Margaret 
 
         Meyer, executor, claimant, against the State of Iowa, Iowa State 
 
         Penitentiary, employer, defendant, for death benefits as the 
 
         result of an injury or occupational disease that occurred on June 
 
         22, 1983.  A hearing was held on August 5, 1987, at Burlington, 
 
         Iowa, and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Margaret Meyer, 
 
         claimant, Louis E. Winn, co-employee of decedent, Christian W. 
 
         Bruehsel, M.D., medical witness, claimant's exhibits 1 through 38 
 
         consisting of pages 1 through 1,318 and defendant's exhibits A 
 
         through E.
 
         
 
                                PRELIMINARY MATTER
 
         
 
              The hearing assignment order was filed on May 6, 1987.  
 
         Claimant's attorney filed an amended petition after the case was 
 
         assigned for hearing.  This amendment was dated May 6, 1987, but 
 
         was not filed in the industrial commissioner's office until May 
 
         11, 1987.  The amended petition added death benefits and 
 
         occupational disease as hearing matters.  The amended petition 
 
         had not been approved or ruled upon prior to the hearing.  
 
         Defendant's counsel stated that she had no objection to this 
 
         amendment.  Division of Industrial Services Rule 343-4.9(5) 
 
         provides as follows:
 
         
 
              A party may amend a pleading as a matter of course at 
 
              any time before the party's discovery is closed, or if 
 
              no order is entered closing the party's discovery, at 
 
              any time before the case is assigned for hearing.  
 
              Otherwise, a party may amend a pleading only by leave 
 
              of the industrial commissioner or deputy industrial 
 
              commissioner or by written consent of the adverse 
 
              party.  Leave to amend, including leave to amend to 
 
              conform to proof, shall be freely given when justice so 
 
              requires.
 
         
 

 
             
 
             
 
             MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY 
 
             PAGE 2
 
              
 
              
 
              Claimant therefore, was granted leave to amend the petition 
 
         as shown at the beginning of the hearing, and the amended 
 
         petition now stands as the petition in this case.
 
         
 
         
 
                                PREHEARING MOTION
 
         
 
              Claimant made a motion to inspect the premises prior to this 
 
         hearing on May 11, 1987.  The motion was resisted on May 20, 
 
         1987.  A deputy industrial commissioner ruled on May 26, 1987, 
 
         that the motion should be ruled upon at the time of the hearing 
 
         by the hearing deputy.  Claimant's attorney renewed his motion to 
 
         inspect the premises at the beginning of this hearing.  A ruling 
 
         was deferred until all of the evidence had been presented at the 
 
         hearing.  At the conclusion of the hearing, when all of the 
 
         evidence had been presented, the motion to inspect the premises 
 
         was overruled.
 
         
 
              It was determined that it was not necessary to view the 
 
         premises in order to better understand and intelligently apply 
 
         the evidence to the issues of this case.  Claimant's photographs 
 
         and the testimony of claimant's witnesses satisfactorily 
 
         established that asbestos was present and exposed in the tunnels 
 
         under the prison.  Skinner v. Cron, 206 Iowa 338, 340 (1927); 
 
         Kirkwood v. Perry Town Lot & Improvement Company, 178 Iowa 249, 
 
         261 (1916); Iowa Rule of Civil Procedure 194.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That claimant's decedent (Meyer) received gross weekly 
 
         earnings are $390.50 per week; that Meyer was married; and that 
 
         he was entitled to two withholding exemptions at the time of the 
 
         injury.
 
         
 
              That Meyer's entitlement to medical benefits is not in 
 
         dispute.
 
         
 
              That defendant made no claim for credit for employee 
 
         nonoccupational group health plan benefits or workers' 
 
         compensation benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted to following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether an employer-employee relationship existed between 
 
         decedent and employer at the time of the alleged injury or 
 
         occupational disease.
 
         
 
              Whether Meyer sustained an injury or occupational disease, 
 
         which resulted in death on June 22, 1983, which arose out of and 
 
         in the course of employment with employer.
 
         
 
              Whether the alleged injury or occupational disease was the 
 
         cause of Meyer's death.
 
         
 
              Whether claimant is entitled to death benefits for the 
 
         alleged injury or occupational disease.
 
         
 
              The parties requested a determination of claimant's proper 
 
         rate of weekly compensation.
 
         
 
              Whether claimant gave timely notice as required by Iowa Code 
 

 
         
 
         
 
         
 
         MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY
 
         PAGE   3
 
         
 
         
 
         section 85.23 and Iowa Code section 85A.18 was asserted as an 
 
         affirmative defense by defendant.
 
         
 
              Whether death occurred within the period of time following 
 
         the last injurious exposure required by Iowa Code section 85A.12 
 
         was asserted as an affirmative defense by defendant.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was,examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant's decedent, Marvin H. Meyer, started to work for 
 
         the Iowa State Penitentiary on September 1, 1963, and retired on 
 
         December 15, 1978.  The last day on which Meyer actually 
 
         performed work was on October 13, 1978.  He was on vacation after 
 
         October 13, 1978, until December 15, 1978 (Exhibit A, B; 
 
         Transcript pages 73 & 74).  At the time of his retirement, Meyer 
 
         was the plant manager in charge of all maintenance operations and 
 
         new construction (Tr. p. 24).
 
         
 
              During his 15 years of employment, Meyer worked at times in 
 
         the tunnels under the prison, which contain heat, water and 
 
         telephone lines.  The heat pipes were insulated with asbestos.  
 
         This insulation was frayed and damaged in several places.  There 
 
         was asbestos on the floor and at least some asbestos dust in the 
 
         air.  When Meyer came home from work, there was dust in the 
 
         wrinkles of his clothes, in his whiskers and in his hair (Tr. pp. 
 
         25, 26 & 44).  Claimant's photographs are representative of the 
 
         condition of the exposed asbestos insulation in the tunnel (pages 
 
         422-432 of claimant's exhibits).  Various witnesses also 
 
         described the condition of the exposed asbestos insulation in the 
 
         tunnels and verified that the photographs were representative of 
 
         the condition of the tunnels in 1978 (Exs. 37 & 38).  Several 
 
         safety precautions are now in effect, which were.not used when 
 
         Meyer was in the tunnels, such as protective clothing and 
 
         respirator masks.
 
         
 
              Meyer died from mesothelioma which was caused by exposure to 
 
         asbestos dust, according to Christian Bruehsel, M.D., a physician 
 
         who had examined the autopsy report and testified at the hearing 
 
         (Tr. p. 57; Ex. E, and pp. 415 & 980 of claimant's exhibits).
 
         
 
              After Meyer retired on December 15, 1978, he sometimes had 
 
         flu-like symptoms, but in a day or so he would be all right and 
 
         he would not go to the doctor (Tr. pp. 27 & 28).  Near the end of 
 
         January 1982, Meyer ached and was not feeling well.  He went to 
 
         see his family physician, Dr. Helling (full name unknown), who 
 
         admitted him to the Fort Madison Hospital.  From there, he was 
 
         sent to the University of Iowa Hospitals and Clinics by ambulance 
 
         and remained there for tests in February and March of 1982.  
 
         Exploratory thoracic surgery disclosed a tumor.  Subsequently, 
 
         Meyer was hospitalized at the Burlington Medical Center where he 
 
         died of cancer on June 22, 1983 (Tr. pp. 30-32).  Claimant 
 
         testified that her husband hadn't been feeling all that well for 
 
         several months before he was hospitalized at Fort Madison 
 
         Hospital in January of 1982 (Tr. p. 36).  Claimant also testified 
 
         that her husband had not received any workers' compensation 
 
         benefits for this condition (Tr. p. 36).
 
         
 
              Claimant testified that she authorized an autopsy when her 
 
         husband died because B.S. Ajaikumar, M.D., his attending 
 

 
         
 
         
 
         
 
         MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY
 
         PAGE   4
 
         
 
         
 
         physician, felt that claimant died from asbestos and he wanted to 
 
         know for sure (Tr. pp. 36 & 37).  Claimant testified that she was 
 
         not sure when she learned the results of the autopsy.  She did 
 
         not talk to Dr. Ajaikumar about the cause of his death (Tr. pp. 
 
         38-40).  Claimant admitted that she learned that her husband had 
 
         cancer in March of 1982 at Iowa City, but did not notify employer 
 
         until she filed this petition (Tr. pp. 42 & 43).  The original 
 
         notice and petition is dated July 19, 1985, and was filed with 
 
         the industrial commissioner on July 20, 1985.
 
         
 
              Claimant testified that she had trouble getting the autopsy 
 
         report and actually had to get help from her attorney in order to 
 
         obtain it.  When it was obtained, it stated that Meyer had 
 
         asbestosis and she filed her lawsuit at that time (Tr. pp. 45 & 
 
         46).  Claimant testified that she did not see the death 
 
         certificate until after her lawsuit was flied.  She further 
 
         testified that when she read the death certificate she did not 
 
         know what mesothelioma meant (Tr. p. 71).
 
         
 
              The autopsy, which was dated June 22, 1983, states that 
 
         mesothelioma of the right hemothorax was the number one anatomic 
 
         diagnosis (Ex. A; pp. 415 & 980 of cl. exs.).
 
         
 
              The death certificate, which is dated June 26, 1983, and 
 
         which was prepared by Dr. Ajaikumar, shows that the first cause 
 
         of death was cerebral hemorrhage and pneumonia and the second 
 
         cause of death was mesothelioma (malignant)--primary site pleura 
 
         (Ex. D).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The burden of proof by a preponderance of the evidence is on 
 
         the employee to show an employer-employee relationship.  Everts 
 
         v. Jorgensen, 227 Iowa 818, 822, 826, 289 N.W. 11 13 (1939).  The 
 
         parties agreed, and it was also proven, that Meyer was an 
 
         employee from September 1, 1963 to December 15, 1978, and that 
 
         the last day of work for employer was on October 13, 1978.  
 
         Therefore, it is determined that claimant has established an 
 
         employer-employee relationship existed from September 1, 1963 to 
 
         December 15, 1978.
 
         
 
              Claimant also sustained the burden of proof by a 
 
         preponderance of the evidence the Meyer died from an industrial 
 
         disease as defined in Iowa Code section 85A.8.  Meyer worked in 
 
         the tunnels.  There is a great deal of exposed asbestos in the 
 
         tunnels.  Claimant died from mesothelioma.  Mesothelioma is 
 
         caused by exposure to asbestos fibers and dust.  The parties are 
 
         in agreement on this point as evidenced by their comments at the 
 
         hearing (Tr. pp. 78 & 79) and by their remarks in their 
 
         post-hearing briefs.
 
         
 
              Defendant's post-hearing brief states as follows:
 
         
 
                 Based upon the evidence adduced at hearing, the only 
 
              determination to be made is that decedent's disease 
 
              (mesothelioma) is encompassed within the definition of 
 
              occupational disease in Iowa Code section 85A.8.  The 
 
              record presented evidence establishing that decedent 
 
              was exposed to asbestos in his work area due to the 
 
              nature of his employment and not independent of his 
 
              employment.  Because decedent's disease falls within 
 
              the definition of SS85A.8, decedent's disease is 
 
              eliminated from consideration under Iowa Code chapter 
 

 
         
 
         
 
         
 
         MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY
 
         PAGE   5
 
         
 
         
 
              85 as Iowa Code section 85.61(5)(b) specifically 
 
              excludes an occupational disease from the definition of 
 
              injury.
 
         
 
              Claimant's attorney indicates his agreement for the reason 
 
         that his brief addresses only the disputed issues pertinent to 
 
         Iowa Code section 85A.12 and 85A.18.
 
         
 
              Therefore, the first real issue the parties want decided is 
 
         whether claimant gave timely notice as required by Iowa Code 
 
         section 85A.18 and 85.23.
 
         
 
              Timely notice is an affirmative defense and the burden of 
 
         proof by a preponderance of the evidence is on the employer. 
 
         Mefferd v. Ed Miller and Sons, Inc., Thirty-third Biennial 
 
         Report of the Industrial Commissioner 191 (1977).
 
         
 
              Iowa Code section 85A.18 reads as follows:
 
         
 
                 Except as herein otherwise provided, procedure with 
 
              respect to notice of disability or death, as to the 
 
              filing of claims and determination of claims shall be 
 
              the same as in cases of injury or death arising out of 
 
              and in the course of employment under the workers' 
 
              compensation law.  Written notice shall be given to the 
 
              employer of an occupational disease by the employee 
 
              within ninety days after the first distinct 
 
              manifestation thereof, and in the case of death from 
 
              such an occupational disease, written notice of such 
 
              claim shall also be given to the employer within ninety 
 
              days thereafter.
 
         
 
              This notice requirement is based on Iowa Code section 85.23. 
 
          The Iowa Supreme Court has held that the ninety day period does 
 
         not commence until the employee should know that the injury or 
 
         death is both serious and work connected.  The tests for when the 
 
         employee should know that injury or death is work connected is 
 
         based on that of a reasonable person with the education and 
 
         intelligence of the employee.  Jacques v. Farmers Lbr. & Sup. 
 
         Co., 242 Iowa 548, 552, 47 N.W.2d 236, 239-240 (1951); Robinson 
 
         v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 1980).  The 
 
         discovery rule applies to occupational disease cases.  Lawyer and 
 
         Higgs, Iowa Workers' Compensation--Law & Practice, section 10-7 
 
         and 10-8, page 78.
 
         
 
              Claimant testified that as soon as she received the autopsy 
 
         report she took it to her attorney and he filed suit at that 
 
         time.  Claimant indicated that this was the first that she knew 
 
         that her husband did, in fact, have asbestosis and that his death 
 
         might be related to his work.  Claimant testified that she did 
 
         not receive the death certificate until after she filed the 
 
         lawsuit.  She testified that she did not know what mesothelioma 
 
         meant even at that time.  Therefore, based on the foregoing 
 
         evidence, it is determined that claimant did, in fact, give 
 
         notice as required by Iowa Code sections 85.23 and 85A.18 based 
 
         on the discovery rule.  As soon as she learned from her attorney 
 
         that mesothelioma was caused by asbestos and that she had a 
 
         work-related claim she filed her petition.
 
         
 
              Iowa Code section 85A.12 provides as follows:
 
         
 
                 An employer shall not be liable for any compensation 
 
              for an occupational disease unless such disease shall 
 

 
         
 
         
 
         
 
         MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY
 
         PAGE   6
 
         
 
         
 
              be due to the nature of an employment in which the 
 
              hazards of such disease actually exist, and which 
 
              hazards are characteristic thereof and peculiar to the 
 
              trade, occupation, process, or employment, and such 
 
              disease actually arises out of the employment, and 
 
              unless disablement or death results within three years 
 
              in case of pneumoconiosis, or within one year in case 
 
              of any other occupational disease, after the last 
 
              injurious exposure to such disease in such employment, 
 
              or in case of death, unless death follows continuous 
 
              disability from such disease commencing within the 
 
              period above limited for which compensation has been 
 
              paid or awarded or timely claim made as provided by 
 
              this chapter and results within seven years after such 
 
              exposure.
 
         
 
              The parties are in agreement that the death was due to:  (1) 
 
         the nature of an employment in which hazards of a disease do 
 
         exist; (2) and which are characteristic and peculiar to the 
 
         employment; and, (3) the disease arose out of the employment.
 
         
 
              The disputed issue is whether Meyer's death qualifies for 
 
         benefits under the special seven year rule of Iowa Code section 
 
         85A.12.
 
         
 
              Two respected and often quoted authors in the workers' 
 
         compensation field have written as follows:
 
         
 
                 A special rule to allow claims for deaths occurring 
 
              beyond these time periods exists where the death 
 
              follows continuous disablement from the disease.  There 
 
              are several requirements to be met under this special 
 
              rule.  First, the continuous disability which resulted 
 
              in death had to commence within the time periods set 
 
              out above for disabilities.  Second, compensation must 
 
              be paid or awarded or a timely claim must be made for 
 
              the disability.  Finally, the death must have occurred 
 
              within seven years of the exposure.
 
         
 
         (Lawyer and Higgs, Iowa Workers' Compensation--Law & Practice, 
 
         section 11-2, page 88)
 
         
 
              The next disputed question is whether Meyer's death followed 
 
         continuous disability within the three year or one year period 
 
         from the last injurious exposure.
 
         
 
              Meyer last worked for employer on October 13, 1978.  This 
 
         was his last possible opportunity for an injurious exposure to 
 
         asbestos from his employment.  Claimant testified that her 
 
         husband sometimes had flu-like symptoms but in a day or so he 
 
         would be all right and he would not go to the doctor (Tr. pp. 27 
 
         & 28).  Near the end of January of 1982, he saw Dr. Helling and 
 
         was hospitalized at Fort Madison Hospital and at the University 
 
         of Iowa Hospitals and Clinics (Tr. pp. 30-32).  Claimant also 
 
         testified that her husband did not feel well for several months 
 
         before he was hospitalized at Fort Madison Hospital (Tr. p. 36).
 
         
 
              The first evidence of any medical treatment for Meyer's 
 
         condition was when he saw Dr. Helling and entered Fort Madison 
 
         Hospital on January 25, 1982 (Ex. C, p. 6) and university of Iowa 
 
         Hospitals and Clinics, Department of Internal Medicine on January 
 
         29, 1982 (pp. 783-785 of cl. exs.).  From October 13, 1978 to 
 
         January 25, 1982, is three years and three months.  Continuous 
 

 
         
 
         
 
         
 
         MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY
 
         PAGE   7
 
         
 
         
 
         disability or disability is not defined in Iowa Code section 
 
         85.61 or Iowa Code section 85A.  Disability is generally 
 
         considered to be when a person is incapacitated from work or is 
 
         unable to work.  The only evidence that Meyer was incapacitated 
 
         from work or unable to work in this case, is when he entered the 
 
         hospital on January 25, 1982.  The fact that he ached, had 
 
         flu-like symptoms for a day or so, and sometimes did not feel 
 
         good does not rise to the level of disability, particularly when 
 
         there was absolutely no medical treatment for these symptoms 
 
         prior to January 25, 1982.  Therefore, it must be determined that 
 
         Meyer was not continuously disabled from this disease, from the 
 
         date of his last performance of work for employer and last 
 
         opportunity for injurious exposure, for either three years or one 
 
         year.  On the contrary, the evidence is that claimant's 
 
         disability began on or about January 25, 1982.  The evidence is 
 
         that claimant was not incapacitated at all until January 25, 
 
         1982.  This date is not within either the three year period or 
 
         the one year period requirement from the last injurious exposure 
 
         as required by Iowa Code section 85A.12.
 
         
 
              Therefore, it is not necessary to decide whether 
 
         mesothelioma, caused by asbestos, is pneumoconiosis or "other 
 
         occupational disease" mentioned in Iowa Code section 85A.12.  Nor 
 
         is it necessary to determine under section 85A.12 whether 
 
         claimant made a "timely claim as provided in this chapter", 
 
         because:  (1) claimant testified that her husband had not 
 
         received any workers' compensation for this condition (Tr. p. 
 
         36); and (2) the discovery rule does not come into play because 
 

 
         
 
         
 
         
 
         MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY
 
         PAGE   8
 
         
 
         
 
         Meyer was not continuously disabled for either one year or three 
 
         years as specifically required by the statute.
 
         
 
              The well researched brief of claimant's attorney cites a 
 
         California statute and California cases interpreting that 
 
         statute.  However, the California statute is different from the 
 
         Iowa statute.  Iowa requires a continuous disability commencing 
 
         within one year or three years after the last injurious exposure.  
 
         California does not have this requirement.  Defendant's counsel 
 
         is correct when she states in her brief as follows:
 
         
 
                 Although it is arguable that decedents death 
 
              resulted within seven years after the last injurious 
 
              exposure, any "continuous disability" did not commence 
 
              within the one year (or three year) time period but 
 
              rather beyond as Claimant's decedent commenced a 
 
              lengthy course of hospitalizations and treatment on 
 
              January 25, 1982.  Ex. C. Furthermore, compensation has 
 
              not been paid or awarded (T. p. 36) or a timely claim 
 
              made prior to the commencement of this action.  
 
              Therefore, again Defendants are not liable.  SS85A.12.
 
         
 
              Therefore, it is determined that defendant has sustained the 
 
         burden of proof by a preponderance of the evidence that the death 
 
         of claimant's decedent did not follow continuous disability 
 
         commencing within either the three year or one year period from 
 
         the last injurious exposure required by Iowa Code section 
 
         85A.12.
 
         
 
              Consequently, it is not necessary to determine the proper 
 
         rate of weekly rate of compensation because claimant is not 
 
         entitled to workers' compensation benefits based upon the facts 
 
         of this case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant's decedent was employed by employer from 
 
         September 1, 1963 to December 15, 1978.
 
         
 
              That claimant's decedent last performed work for employer on 
 
         October 13, 1978.
 
         
 
              That claimant's decedent was exposed to asbestos and 
 
         asbestos dust in the tunnels at Iowa State Penitentiary at Fort 
 
         Madison, Iowa, during the course of his employment for employer.
 
         
 
              That claimant's decedent incurred an occupational disease of 
 
         mesothelioma due to his exposure to asbestos during his 
 
         employment for employer.
 
         
 
              That claimant's decedent was first disabled from this 
 
         disease when he entered the Fort Madison Hospital on January 25, 
 
         1982.  That claimant's decedent died from this occupational 
 
         disease on June 22, 1983.
 
         
 
              That the petition in this case was filed with the industrial 
 
         commissioner on July 20, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         MEYER V. STATE OF IOWA, IOWA STATE PENITENTIARY
 
         PAGE   9
 
         
 
         
 
              WHEREFORE, based upon the evidence presented, and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That there was an employer-employee relationship between 
 
         Meyer and employer from September 1, 1963 to December 15, 1978.
 
         
 
              That claimant's decedent did sustain an occupational disease 
 
         of mesothelioma which arose out of and in the course of his 
 
         employment with employer (Iowa Code section 85A.8).
 
         
 
              That claimant's decedent did not sustain an injury as 
 
         defined in Iowa Code section 85 [Iowa Code section 85.61(5)(b)].
 
         
 
              That the occupational disease was the cause of the death of 
 
         claimant's decedent (Iowa Code section 85A.4).
 
         
 
              That claimant did give timely notice of claim (Iowa Code 
 
         section 85A.18).
 
         
 
              That claimant's decedent was not continuously disabled from 
 
         this disease, commencing within either the three year or one year 
 
         period from the last injurious exposure, as required by the 
 
         statute (Iowa Code section 85A.12).
 
         
 
              That the issues of rate and entitlement are therefore moot.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT  IS  ORDERED:
 
         
 
              That no monies are due from defendant to claimant.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant 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 November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. James Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, IA 52632-1066
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, IA 50319
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARGARET MEYER, Surviving     :
 
            Spouse, and MARVIN H. MEYER,  :
 
            ESTATE by MARGARET MEYER,     :
 
            Executor,                     :        File No. 797037
 
                                          :
 
                 Claimant,                :
 
                                          :          A P P E A L
 
            vs.                           :
 
                                          :
 
            IOWA STATE PENITENTIARY,      :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision denying 
 
            claimant benefits.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; claimant's exhibits 1 through 38; and 
 
            defendants' exhibits A through E.  Both parties filed briefs 
 
            on appeal.
 
            
 
                                      issue
 
            
 
                 The issue on appeal is whether claimant's claim for 
 
            death benefits is barred by Iowa Code section 85A.12 (1983).  
 
            Claimant also raises certain constitutional arguments that 
 
            will also be addressed.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed November 14, 1988 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            The citations of law in the arbitration decision are 
 
            appropriate to the issue and evidence.
 
            
 
                                     analysis
 
            
 
                 Certain material facts are not in dispute.  Claimant's 
 
            decedent was employed by defendant employer from September 
 
            1, 1963 until December 15, 1978, when he retired.  The last 
 
            day decedent worked was October 13, 1978.  Claimant was 
 
            exposed to asbestos during his employment.  In the time 
 
            period between December 15, 1978 and January 1982 the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            decedent sometimes had flu-like symptoms which lasted a day 
 
            or so.  The decedent was hospitalized in January 1982 and 
 
            eventually died on June 22, 1983.  An autopsy performed on 
 
            the date of death states that mesothelloma of the right 
 
            hemlthorax was the number one anatomic diagnosis.  The death 
 
            certificate dated June 26, 1983 shows that the first cause 
 
            of death was cerebral hemorrhage and pneumonia and the 
 
            second cause of death was mesothelloma (malignant) - primary 
 
            site pleura.  Claimant learned decedent had cancer in March 
 
            of 1982.  The first notice claimant gave to the employer was 
 
            the original notice and petition which was served on June 
 
            24, 1985.  The claimant initiated this proceeding after she 
 
            had obtained the autopsy with the assistance of her 
 
            attorney.  Claimant did not see the death certificate until 
 
            after this proceeding was initiated.
 
            
 
                 Under Iowa Code section 85A.12 an employer is not 
 
            liable unless the provisions of that section are satisfied.  
 
            The provisions include a requirement that "disablement or 
 
            death results within three years in case of pneumoconiosis, 
 
            or within one year in case of any other occupational 
 
            disease, after the last injurious exposure to such disease 
 
            in such employment."  It should be noted that there is no 
 
            indication in the record that compensation had been paid or 
 
            awarded.  Therefore, the quoted language is dispositive of 
 
            this matter.
 
            
 
                 Disablement is defined in Iowa Code section 85A.4 as 
 
            follows:
 
            
 
                    Disablement as that term is used in this 
 
                 chapter is the event or condition where an 
 
                 employee becomes actually incapacitated from 
 
                 performing the employee's work or from earning 
 
                 equal wages in other suitable employment because 
 
                 of an occupational disease as defined in this 
 
                 chapter in the last occupation in which such 
 
                 employee is injuriously exposed to the hazards of 
 
                 such disease.
 
            Under the statutory definition of disablement or under the 
 
            concept of industrial disability, the earliest the decedent 
 
            could have been disabled was when he was hospitalized in 
 
            January 1982.  There was no time prior to January 1982 that 
 
            he was incapacitated from performing work.  Flu-like 
 
            symptoms that lasted a day or so prior to them would not 
 
            constitute disablement.  Decedent died on June 22, 1983.  
 
            The last date he was exposed to a disease in his employment 
 
            would be the last day he worked which was October 13, 1978.  
 
            Neither decedent's disablement nor his death occurred within 
 
            one year of October 13, 1978.  Likewise, neither decedent's 
 
            disablement nor death occurred within three years of October 
 
            13, 1978.  Claimant's claim is barred by Iowa Code section 
 
            85A.12.  The claim is barred whether decedent suffered from 
 
            pneumoconiosis or from an occupational disease.  The 
 
            conclusion is the same whether decedent had an occupational 
 
            disease or pneumoconiosis.  Therefore, no ruling on whether 
 
            decedent suffered pneumoconiosis is necessary.  The 
 
            employer's liability has been lost through the passage of 
 
            time.
 
            The so called discovery rule has no application in light of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the statutory language used in Iowa Code section 85A.12.  
 
            The concepts of injury and occupational disease cannot be 
 
            used interchangeably.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181, 190 (Iowa 1980).  The legislature has 
 
            recognized a distinction between an injury and an 
 
            occupational disease.  See Iowa Code section 85.61(5).
 
            
 
                 Claimant also raises certain constitutional questions 
 
            that can be dealt with summarily.  It is unclear whether 
 
            claimant is attacking the constitutional validity of the 
 
            statute involved.  This agency has no jurisdiction to 
 
            determine the constitutional validity of the statute.  
 
            Salsbury Laboratories v. Iowa, Etc., 276 N.W.2d 830 (Iowa 
 
            1979).  If claimant raises constitutional issues other than 
 
            the validity of the statute, those issues need not be 
 
            considered when another question is decisive.  See Iowa Beef 
 
            Processors, Inc. v. Miller, 312 N.W.2d 530 (Iowa 1981).  The 
 
            interpretation of the statute is determinative of this 
 
            appeal and the constitutional issues raised are not reached.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant's decedent was employed by defendant 
 
            employer from September 1, 1963 to December 15, 1978.
 
            
 
                 2.  Claimant's decedent last performed work for 
 
            defendant employer on October 13, 1978.
 
            
 
                 3.  Claimant's decedent was exposed to asbestos and 
 
            asbestos dust during the course of his employment for 
 
            defendant employer.
 
            
 
                 4.  Claimant's decedent incurred an occupational 
 
            disease as a result of his employment for defendant 
 
            employer.
 
            
 
                 5.  Claimant's decedent's last injurious exposure to an 
 
            occupational disease in his employment was October 13, 1978.
 
            
 
                 6.  Claimant's decedent was first disabled from an 
 
            occupational disease when he entered Fort Madison Hospital 
 
            on January 25, 1982.
 
            
 
                 7.  Claimant's decedent died on June 22, 1983.
 
            
 
                                conclusion of law
 
            
 
                 Claimant's decedent's disablement or death did not 
 
            occur within three years or one year of his last injurious 
 
            exposure to an occupational disease.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That costs of this action including transcription of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the arbitration hearing are charged to claimant pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this______ day of February, 1990.
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
            
 
                                         _________________________
 
                                             DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
                 
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           2203
 
                                           Filed November 14, 1988
 
                                           WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARGARET MEYER, Surviving
 
         Spouse, and MARVIN H. MEYER
 
         ESTATE by MARGARET MEYER,
 
         Executor,                              File No.  797037
 
         
 
              Claimant,                      A R B I T R A T I O N
 
         
 
         vs.                                    D E C I S I O N
 
         
 
         STATE OF IOWA, IOWA STATE
 
         PENITENTIARY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2203
 
         
 
              Claimant's decedent died of mesothelioma caused by exposure 
 
         to asbestos at work but did not recover because death did not 
 
         follow continuous disability commencing within either one year or 
 
         three years from the last injurious exposure as required by Iowa 
 
         Code section 85A.12.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2203,2301,2402
 
                                          Filed February 27, 1990
 
                                          DAVID E. LINQUIST   
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARGARET MEYER, Surviving     :
 
            Spouse, and MARVIN H. MEYER,  :
 
            ESTATE by MARGARET MEYER,     :
 
            Executor,                     :        File No. 797037
 
                                          :
 
                 Claimant,                :
 
                                          :          A P P E A L
 
            vs.                           :
 
                                          :
 
            IOWA STATE PENITENTIARY,      :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            2203, 2301, 2402
 
            Claimant's decedent's cause of death was mesotheloima.  
 
            During decedent's employment he had been exposed to 
 
            asbestos.  The last day claimant worked was October 13, 
 
            1978.  Decedent was not disabled until hospitalized in 
 
            January 1982.  Decedent died on June 22, 1983.  It was held 
 
            that under Iowa Code section 85A.12 employer was not liable 
 
            because disablement or death did not occur within one year 
 
            of last injurious exposure.  Claimant would still not have 
 
            recovered if cause of death had been pneumoconiosis because 
 
            disablement or death did not occur within 3 years after the 
 
            last injurious exposure.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TONY R. ELDRENKAMP,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 797085
 
            ARCHER DANIELS MIDLAND,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
 
 
            
 
 
 
                 Defendants appeal from an arbitration decision awarding 
 
 
 
            80 percent industrial disability benefits sustained on 
 
 
 
            account of a June 12, 1985 work-related injury.
 
 
 
            
 
 
 
                 The record on appeal consists of the transcript of the 
 
 
 
            arbitration hearing; claimant's exhibits 1 through 9; and 
 
 
 
            defendants' exhibits A through H.  Both parties filed briefs 
 
 
 
            on appeal.
 
 
 
            
 
 
 
                                      issues
 
 
 
            
 
 
 
                 Defendants state the issues on appeal are:
 
 
 
            
 
 
 
                 1.  The award of industrial disability of 80% of 
 
 
 
                 the whole person is unsupported by substantial 
 
 
 
                 evidence in the record made before the deputy 
 
 
 
                 industrial commissioner when that record is viewed 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 
 
                 as a whole.
 
 
 
            
 
 
 
                 2.  The deputy's finding that claimant "eventually 
 
 
 
                 proved unable to continue [his work] because of 
 
 
 
                 injures" is unsupported by the evidence.
 
 
 
            
 
 
 
                 3.  The deputy industrial commissioner erred in 
 
 
 
                 raising the "odd lot doctrine" in the arbitration 
 
 
 
                 proceeding where claimant had failed to raise that 
 
 
 
                 issue at any time prior to or during the hearing.
 
 
 
            
 
 
 
                 4.  The evidence does not support a finding that 
 
 
 
                 claimant could fall within the odd lot doctrine 
 
 
 
                 under any circumstances.
 
 
 
            
 
 
 
                              review of the evidence
 
 
 
            
 
 
 
                 The arbitration decision dated May 16, 1989 adequately 
 
 
 
            and accurately reflects the pertinent evidence and it will 
 
 
 
            not be reiterated herein.
 
 
 
            
 
 
 
                                  applicable law
 
 
 
            
 
 
 
                 The citations of law in the arbitration decision are 
 
 
 
            appropriate to the issues and evidence.
 
 
 
            
 
 
 
                                     analysis
 
 
 
            
 
 
 
                 The analysis of the evidence in conjunction with the 
 
 
 
            law in the arbitration decision is adopted.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
 
 
                 In addition, defendants contend that the record fails 
 
 
 
            to support a finding of 80 percent industrial disability as 
 
 
 
            a result of claimant's June 12, 1985 work-related injury.  
 
 
 
            Defendants rely upon claimant's ability to return to his 
 
 
 
            pre-injury position within defendants, loss of actual 
 
 
 
            earnings does not equate to loss of earning capacity.  
 
 
 
            Claimant's ability to return to work and perform his prior 
 
 
 
            duties does not diminish the effect of claimant's injury 
 
 
 
            upon his earning capacity.  Claimant's work restrictions 
 
 
 
            limits his ability to obtain a position for which he is 
 
 
 
            qualified.  Claimant's work experience is limited to 
 
 
 
            unskilled employment and claimant's restrictions limit his 
 
 
 
            exposure to hot and cold temperatures, as well as chemicals 
 
 
 
            and ultraviolet light.  Claimant's past work history is 
 
 
 
            limited to the unskilled market and the work restrictions 
 
 
 
            close off areas of this market.
 
 
 
            
 
 
 
                 Evidence supports the deputy's finding that claimant 
 
 
 
            was "unable to continue because of his injuries."  Claimant 
 
 
 
            and his wife testified that claimant's hands would swell and 
 
 
 
            turn black and blue after work, as a result of claimant's 
 
 
 
            burns.  Clearly, claimant's injury made it more difficult to 
 
 
 
            continue working with defendants.
 
 
 
            
 
 
 
                 While the deputy industrial commissioner's decision 
 
 
 
            mentioned the odd-lot doctrine, the deputy did not find that 
 
 
 
            claimant's case fell within the category of odd-lot.  Nor 
 
 
 
            did claimant raise the issue of odd-lot at the hearing.  The 
 
 
 
            deputy's passing comments on odd-lot does not amount to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            raising the issue of the odd-lot doctrine.
 
 
 
            
 
 
 
                                 findings of fact
 
 
 
            
 
 
 
                 1.  As stipulated, claimant suffered a work-related 
 
 
 
            injury on June 12, 1985.
 
 
 
            
 
 
 
                 2.  The work-related injury caused claimant severe 
 
 
 
            burns to 58 percent of his body surface with deep burns on 
 
 
 
            the face and hands and mostly second degree burns on the 
 
 
 
            neck, chest, back, arms and legs.
 
 
 
            
 
 
 
                 3.  Despite extensive surgical repair and physical 
 
 
 
            therapy, claimant has a combined functional impairment to 
 
 
 
            all four extremities and his trunk of 65 percent.
 
 
 
            
 
 
 
                 4.  Claimant's limitations include the need to be 
 
 
 
            protected from ultraviolet light, exposure to chemicals, and 
 
 
 
            the need to be employed in a temperature controlled 
 
 
 
            environment.
 
 
 
            
 
 
 
                 5.  Claimant was a credible witness.
 
 
 
            
 
 
 
                 6.  Claimant was 31 years old at the time of hearing.
 
 
 
            
 
 
 
                 7.  Claimant completed the ninth grade.
 
 
 
            
 
 
 
                 8.  Claimant's work experience is limited to the 
 
 
 
            unskilled labor market.
 
 
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 9.  Claimant has shown excellent motivation to return 
 
 
 
            to work by actually performing similar employment for two 
 
 
 
            years after his injury, although he eventually proved unable 
 
 
 
            to continue because of his injuries.
 
 
 
            
 
 
 
                 10. Claimant suffered depression and a diminution of 
 
 
 
            his social skills by reason of the work injury.
 
 
 
            
 
 
 
                 11. As stipulated, claimant is entitled to a healing 
 
 
 
            period from June 13, 1985 through August 12, 1986.
 
 
 
            
 
 
 
                                conclusions of law
 
 
 
            
 
 
 
                 Claimant suffered an injury arising out of and in the 
 
 
 
            course of his employment on June 12, 1985.
 
 
 
            
 
 
 
                 Claimant's injury caused a healing period as stipulated 
 
 
 
            and industrial disability of 80 percent of the whole person, 
 
 
 
            or 400 weeks.
 
 
 
            
 
 
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
 
 
                                      order
 
 
 
            
 
 
 
                 THEREFORE, it is ordered:
 
 
 
            
 
 
 
                 That defendants are to pay unto claimant four hundred 
 
 
 
            (400) weeks of permanent partial disability benefits at the 
 
 
 
            stipulated rate of three hundred twenty-eight and 53/100 
 
 
 
            dollars ($328.53) per week commencing August 13, 1986.
 
 
 
            
 
 
 
                 That after first deducting benefits voluntarily paid to 
 
 
 
            claimant for his healing period from June 13, 1985 through 
 
 
 
            August 12, 1986, defendants shall be entitled to credit for 
 
 
 
            all other weekly benefits paid to claimant as and for 
 
 
 
            permanent partial disability.
 
 
 
            
 
 
 
                 That any accrued benefits ordered hereunder that have 
 
 
 
            not been paid shall be paid to claimant as a lump sum 
 
 
 
            together with statutory interest thereon pursuant to Iowa 
 
 
 
            Code section 85.30.
 
 
 
            
 
 
 
                 That defendants pay the costs of this action including 
 
 
 
            the costs of transcription of the arbitration hearing.
 
 
 
            
 
 
 
                 That defendants file claim activity reports pursuant to 
 
 
 
            Division of Industrial Services Rule 343-3.1(2).
 
 
 
            
 
 
 
                 Signed and filed this ______ day of May, 1990.
 
 
 
            
 
 
 
            
 
 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
 
 
            
 
 
 
                                         _____________________________
 
 
 
                                               DAVID E. LINQUIST
 
 
 
                                            INDUSTRIAL COMMISSIONER
 
 
 
            
 
 
 
                 
 
 
 
            Copies To:
 
 
 
            
 
 
 
            Mr. Michael E. Sheehy
 
 
 
            Attorney at Law
 
 
 
            118 2nd Avenue SE
 
 
 
            United Fire & Casualty Bldg., Ste. 205
 
 
 
            Cedar Rapids, Iowa 52401
 
 
 
            
 
 
 
            Mr. Thomas N. Kamp
 
 
 
            Attorney at Law
 
 
 
            600 Davenport Bank Bldg.
 
 
 
            Davenport, Iowa 52801
 
 
 
            
 
 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803
 
                                          Filed May 31, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TONY R. ELDRENKAMP,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.797085
 
            ARCHER DANIELS MIDLAND,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Defendants relied upon claimant's ability to return to his 
 
            pre-injury position within defendants to support their 
 
            contention that the record failed to support 80 percent 
 
            industrial disability.  However, loss of actual earnings 
 
            does not equate to loss of earning capacity.  Reduction of 
 
            actual earning or the lack thereof, is only one component of 
 
            earning capacity.  Claimant's work restrictions limit his 
 
            ability to secure a position for which he is qualified.  
 
            Affirmed the deputy industrial commissioner's decision which 
 
            awarded 80 percent industrial disability for claimant with a 
 
            second and third degree burns over 58 percent of his body 
 
            and 65 percent functional impairment of the body as a whole.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TONY R. ELDRENKAMP,
 
         
 
              Claimant,
 
                                                    File No. 797085
 
         vs.
 
                                                 A R B I T R A T I O N
 
         ARCHER DANIELS MIDLAND,
 
                                                    D E C I S I O N
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      MAY 16 1989
 
         NORTHWESTERN NATIONAL INSURANCE
 
         COMPANY,                                 INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
             
 
             
 
                              STATEMENT OF THE CASE
 
             
 
             This is a proceeding in arbitration brought by claimant Tony 
 
         Eldrenkamp against defendant employer Archer Daniels Midland and 
 
         defendant insurance carrier Northwestern National Insurance 
 
         Company to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of injuries sustained on June 12, 1985.  This 
 
         matter came on for hearing before the undersigned in Davenport, 
 
         Iowa, on February 1, 1989, and was considered fully submitted at 
 
         the close of hearing.
 
             
 
             The record in this proceeding consists of claimant's 
 
         exhibits 1 through 9, defendants' exhibits A through H, both 
 
         inclusive, and the testimony of claimant, Jeanine Eldrenkamp and 
 
         Henry Obermiller.
 
             
 
                                      ISSUES
 
             
 
             Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the following issues have been 
 
         stipulated:  The existence of an employment relationship at the 
 
         time of the injury; that claimant sustained an injury on June 12, 
 
         1985, arising out of and in the course of that employment; that 
 
         the injury caused both temporary and permanent disability; that 
 
         claimant's entitlement to compensation for healing period is from 
 
         June 13, 1985 through August 12, 1986; that claimant's permanent 
 
         disability is an industrial disability to the body as a whole; 
 
         that the commencement date for permanent disability is August 13, 
 
         1986; that the proper rate of weekly compensation is $328.53; 
 
         that all requested medical benefits have been or will be paid by 
 
         defendants; that defendants paid claimant 196.21 weeks of 
 
         compensation at the stipulated rate through January 19, 1989 and 
 
         were continuing to pay weekly benefits at the time of hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             The sole issue presented for determination is the extent of 
 
         claimant's entitlement to compensation for permanent disability.
 
             
 
                              REVIEW OF THE EVIDENCE
 
             
 
             Claimant testified that he was 31 years old at the time of 
 
         hearing, having been born on November 22, 1957.  He completed 
 
         ninth grade and only a few weeks of tenth grade and has no other 
 
         formal education.  He did take classes as a coordinator with a 
 
         prior employer.
 
             
 
             Claimant indicated that his work history included one year 
 
         washing tanks with a pressure hose at Swift's Poultry after high 
 
         school; running pipe into a machine for approximately one year at 
 
         a business known as Central Steel; working as a track gang member 
 
         (replacing railroad ties and rail) with Milwaukee Railroad for an 
 
         unspecified period; working as a garage mechanic for six to 
 
         twelve months with Savannah Army Depot; driving a fork truck for 
 
         an unspecified time with Metro Rubber Plant; working as a general 
 
         cleaner, hopper car loader and feed runner for defendant Archer 
 
         Daniels Midland and a predecessor owner of the same plant, 
 
         Clinton Corn, from 1979 through the date of injury and beyond.
 
             
 
             Claimant received no training except for rudimentary 
 
         on-the-job training in any of these positions.  He was a nonunion 
 
         member for defendant Archer Daniel's Midland because he was 
 
         unskilled. Claimant's work as a general cleaner included cleaning 
 
         roofs and wheelbarrowing grain and his work as a feed runner 
 
         included making mechanical repairs on grain conveying equipment.  
 
         His work as a hopper car loader required some three to seven days 
 
         of training. Claimant also occasionally operated a Bobcat machine 
 
         and dump truck for defendant employer.
 
             
 
             Apart from the stipulated work injury claimant enjoyed good 
 
         health.  He was burned on his back as a child, requiring one 
 
         day's hospitalization, but suffered no disability and had no 
 
         scars at the time of the work injury.
 
             
 
             Claimant suffered his work injury when he was severely 
 
         burned in the explosion of a grain dryer.  Admission notes of the 
 
         University of Iowa Hospitals and Clinics dated June 12, 1985, 
 
         reflect that claimant suffered burns to 58% of his body with deep 
 
         burns on the face and hands, and mostly second degree burns 
 
         elsewhere (neck, chest, back, arms and legs).  The seriousness of 
 
         claimant's plight is reflected in a notation that his "burn 
 
         score" placed him in a 20%-40% survival category.
 
             
 
             Claimant underwent extensive surgical repair and grafting, 
 
         being hospitalized until July 19, 1985.  The medical history of 
 
         claimant's recovery is well summarized in claimant's exhibit 6, a 
 
         letter from G. P. Kealey, M.D., burn treatment center director:
 
             
 
              You incurred a 58% body surface area burn on June 12, 1985. 
 
              You were hospitalized at The University of Iowa Burn Center 
 
              from the time of your injury until July 19, 1985.  
 
              Management of your burn wounds required extensive skin 
 
              grafting procedures and have required aggressive, vigorous 
 
              physical therapy on an outpatient basis since that time in 
 
              order to return you to your present functional status.  You 
 
              were initially treated with aggressive physical therapy and 
 
              pressure therapy garments, receiving both home exercise 
 
              program and outpatient physical therapy to manage your 
 
              post-injury scarring and contractures.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              At the present time you have returned to your previous job 
 
              on a full-time status.  Pressure therapy garments have been 
 
              discontinued as per our suggestion.  You demonstrated 
 
              moderate degree of hypertrophic scarring over areas which 
 
              received the split thickness skin graft, especially on your 
 
              right upper extremity, right chest wall, and your left upper 
 
              extremity to some degree.  You have areas of increased and 
 
              decreased pigmentation of the donor sites of the facial burn 
 
              and some areas of increased pigmentation where skin grafts 
 
              were applied.
 
             
 
              On interview you state that you have intolerances to 
 
              temperature extremes, exposure to chemicals and sunlight. 
 
              You have difficulty or loss of sweating in all areas which 
 
              were covered with split thickness skin graft.  You state 
 
              that when the temperature exceeds 80 F, you [sic] that it 
 
              is difficult to tolerate because you cannot sweat and that 
 
              you need to stop and cool off approximately every 
 
              half-hour after exposure to this temperature.  Cold 
 
              temperatures in the range of 0 F or lower cause you 
 
              difficulty because your hands are more sensitive to these 
 
              temperatures than they were prior to your burn injury.  
 
              This necessitates wearing bulkier clothing to protect your 
 
              extremities and body from exposure to temperature extremes 
 
              of this nature. Manifestations of response to this 
 
              temperature include numbness, tingling, and pain.  In 
 
              addition to this, you state that you have a continuing 
 
              problem with dryness of all grafted and some of the donor 
 
              sites because of loss of the normal skin lubrication 
 
              glands.  This necessitates application of lotion on at 
 
              least a daily basis.  This symptom complex (sic] has been 
 
              stable over the last year. You also state that you have 
 
              continuing problems with itching over the upper 
 
              extremities and upper chest and that you have some pain in 
 
              the hands and elbows which manifests itself as tightness, 
 
              especially after prolonged use.  You state that you have 
 
              tightness on use of the right shoulder.
 
              
 
              On review of your social life, you state that you feel that 
 
              you have had a change in a change in (sic] your social life 
 
              in that you [sic] no longer comfortable in public situations 
 
              because of the obvious changes of your face and upper 
 
              extremities after the burn injury.  You feel that you have 
 
              had problems with depression and anxiety and recurrent 
 
              dreams recall the day, time, and place of the accident.  All 
 
              of these feelings add up to the sensation of feeling more 
 
              vulnerable and exposed to criticism and less confident in a 
 
              social situation than you were prior to the accident.  This 
 
              has resulted in a change in your social life and your social 
 
              activities.
 
              
 
              Additionally, you feel that your sexuality has been 
 
              diminished and that the sensation over your lower body and 
 
              in your genitalia has been diminished as a result of your 
 
              injury, as has the sensation over the rest of your body. 
 
              This has lead (sic] to a decreased level of sexual 
 
              activity and decreased level of sexual enjoyment.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
             
 
              Physical examination reveals moderate degree of hypertrophic 
 
              scarring of the right upper extremity, the right anterior 
 
              and lateral chest wall, and somewhat less over the left 
 
              upper extremity.  Range of motion measurements show 
 
              considerable amounts of hypertrophic scarring and loss of 
 
              function of the right upper extremity amounting,to a 39% 
 
              loss of function of the right upper extremity.  This 
 
              translates into a whole man total disability related to the 
 
              right upper extremity of 23%. This is due to restriction of 
 
              motion of the shoulder, elbow, and digits of the right hand 
 
              to include the thumb.
 
              
 
              Similar measurements of the function of the left upper 
 
              extremity revealed that you have 26% disability of the left 
 
              upper extremity which translates to a 16% loss of function 
 
              of the whole man.  Functional evaluation of the right lower 
 
              extremity shows that you have a 29% disability of the right 
 
              lower extremity which translates into a 12% whole man 
 
              disability.  You also have a 28% disability of the left 
 
              lower extremity which translates to an 11% disability for 
 
              the whole man.  This is due to loss of range of motion, 
 
              hypertrophic scarring, and decreased function of all of the 
 
              above mentioned extremities.
 
             
 
              Sensory examination of the upper extremities, both right 
 
              and left, shows that you have decreased 2 point 
 
              discrimination. You have good proprioception in all areas.  
 
              The strength of your hand grasp is normal.  Your 
 
              coordination tests of both the right and the left hand, 
 
              using the 9-hole peg test, shows that you are in the tenth 
 
              percentile.score.  This indicates that you have decreased 
 
              coordination of both hands.  Sensory examination also 
 
              shows that you have decreased sensation of the right upper 
 
              extremity, including the.dorsal of both hands and the area 
 
              of the right shoulder and the right forearm.  You also 
 
              have decreased sensation of the anterior portion of both 
 
              thighs.
 
              
 
              Your coordination in the lower extremities is normal. 
 
              Proprioception of the lower extremities is normal.  Muscle 
 
              strength in your lower extremities is within normal limits. 
 
              Muscle strength in the upper extremities is within normal 
 
              limits, except for diminished strength of the right hand. 
 
              Again, it is noted that you have hypertrophic scarring of 
 
              the right upper extremity, a portion of the left upper 
 
              extremity, and the dorsum of both hands and decreased 
 
              pigmentation of the donor sites of the lower extremity.
 
              
 
              On review of skin problems which include decreased 
 
              sensation, decreased sweating, dryness, itching, the need 
 
              for continuous lubrication, and inability to tolerate 
 
              temperature extremes of both hot and cold, I feel that you 
 
              belong in the Class III impairment of the whole man.  Class 
 
              III impairment occurs when the signs and symptoms of a skin 
 
              disorder are present and continuous treatment is required 
 
              and there is [sic] limitations of performance of many of the 
 
              activities of daily living.  To this end, because I feel 
 
              that because you have decreased sweating, your inability to 
 
              tolerate temperature extremes, your need to protect your 
 
              skin from exposure to chemicals, ultraviolet light, 
 
              continuous dryness and symptoms of itching are persistent 
 
              after 2 years from the time of injury, that this presents a 
 
              30% disability of the whole man (on the basis of the skin 
 
              injury).
 

 
              
 
 
 
 
 
 
 
 
 
 
 
             
 
              Combination of the disability of the extremities due to 
 
              scarring and loss of motion and the skin disability, using 
 
              the combined values chart,leads me to assign you a 65% whole 
 
              man permanent disability [sic].  I feel that these signs and 
 
              symptoms are permanent and that your disability [sic] as a 
 
              result of your burn is permanent.  The reference text used 
 
              in assigning this value is the Guides to the Evaluation of 
 
              Permanent Impairment, Second Edition, by the Committee on 
 
              the Medical Rating of Physical Impairment, copyright 1984, 
 
              Library of Congress Catalogue Card Number 74-151606.
 
             
 
              It should be noted that I have not addressed, in terms of 
 
              disability [sic] rating, your difficulty with anxiety, 
 
              depression, recurring nightmares, and feelings of isolation 
 
              that you have as a result of the cosmetic and functional 
 
              changes resultant from your burn injury.  I believe these 
 
              symptoms to be reasonable and are directly related to your 
 
              injury.  I suggest that I am not the appropriate person to 
 
              make this type of disability rating and that you should seek 
 
              the advice and counsel of a psychiatrist or a 
 
              neuro-psychologist who is competent to test and evaluate a 
 
              patient exhibiting these difficulties after an injury.
 
             
 
             Dr. Kealey made clear in his deposition of December 15, 
 
         1988, also in evidence, that he uses the terms "disability" and 
 
         "impairment" interchangeably, and that he did not consider 
 
         factors such as claimant's age, education, job requirements, etc. 
 
         (claimant's exhibit 9, pages 38-39).
 
             
 
             Claimant did return to work after recuperation.  He worked 
 
         for approximately three months in the starch plant doing numerous 
 
         jobs, including shoveling, dumping soda ash, and the like. 
 
         However, he was troubled by the warm temperatures and a 
 
         bothersome rash on his hands.  Claimant agrees that his most 
 
         serious problems in maintaining employment include an inability 
 
         to withstand temperature extremes (colder than zero degrees 
 
         Fahrenheit or warmer than 80-85 degrees Fahrenheit) and that his 
 
         hands swell up and become black and blue with work.
 
             
 
             Claimant was then returned to his old position as a loader. 
 
         He worked both inside and out, but found that warm temperatures 
 
         bothered him, his hands became swollen, and he suffered mental 
 
         distress related to his fear of further potential fires.
 
             
 
             In approximately the spring or summer of 1987, claimant 
 
         accepted a position with the barge system which included tying 
 
         barges, cleaning the tops, climbing and loading.  He suffered the 
 
         same problems with temperature and his hands.
 
             
 
             Claimant stated he returned to his loading position in the 
 
         fall of 1987, but referred to himself as a "basket case," 
 
         although he worked until September, 1988.  He was of the view 
 
         then and is now that he was unable to perform any further duties 
 
         for defendant because of his residual burn problems.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             Claimant is not now working, having resigned his work with 
 
         defendant in September, 1988.  At hearing, he expressed the view 
 
         that he wished to try a management job if one could be obtained. 
 
         Claimant noted that although his right little finger is deformed, 
 
         he has decided against surgery at this time.
 
             
 
             On cross-examination, claimant agreed that he returned to 
 
         work on August 13, 1986 at the starch plant, and that he also ran 
 
         a forklift.  He normally worked 40 hours per week, but sometimes 
 
         as many as 50-60.  At his own request, claimant was transferred 
 
         to the loading position on September 20, 1986 where he remained 
 
         until accepting the barge position in March, 1987.  The barge 
 
         position lasted until the Mississippi River iced over in 
 
         approximately December, 1987, and involved frequent overtime, 
 
         sometimes as many as 60 hours per week.
 
             
 
             In December, 1987, claimant was transferred to working on 
 
         hoppers until May 23, 1988 when he accepted the position taking 
 
         care of feed pressers until September 20, 1988, at which time he 
 
         left employment voluntarily.  All of these jobs were full time. 
 
         Claimant agreed that from August, 1986 through September, 1988, 
 
         he generally worked a minimum of 40 hours per week.
 
             
 
             Claimant agreed that he has not looked for work since 
 
         September, 1988 and has not sought to apply for further training 
 
         or vocational rehabilitation services.  He did emphasize that he 
 
         had done his best to perform at each job to which he was assigned 
 
         following the injury.
 
             
 
             Jeanine Eldrenkamp testified that she is claimant's wife and 
 
         that prior to the work injury claimant was in good condition with 
 
         no disabilities, visible scars, or problems afflicting his hands. 
 
         She testified that following claimant's return to work, he came 
 
         home in a tired and irritable condition and that his hands were 
 
         often black and blue and swollen.  She indicated that claimant 
 
         frequently retired to bed as early as 6:00 p.m. on hot days.
 
             
 
             Ms. Eldrenkamp testified further that claimant had problems 
 
         with items slipping out of his hands due to his inability to 
 
         realize how much pressure he was applying.
 
             
 
             Ms. Eldrenkamp testified generally that claimant has been 
 
         feeling stressed, depressed, angry and easily upset since 
 
         returning to work, and that he suffered a great deal of pain.  
 
         She also indicated that he is now unable to perform duties around 
 
         the house such as lawn mowing and the like, whereas he was able 
 
         to perform such normal chores before the injury.
 
             
 
             Henry Obermiller testified that he is a consultant for 
 
         defendant Archer Daniels Midland and that he is recently retired 
 
         as manager of plant services.  He indicated that he had 
 
         responsibility for working with employees who had suffered 
 
         industrial injuries.  He testified that claimant transferred to 
 
         the feed loader position after returning to work upon his own 
 
         request and after the request was discussed with Dr. Kealey, who 
 
         had no objection.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             With regard to claimant's restrictions and degree of 
 
         permanency, Dr. Kealey testified in his deposition:
 
             
 
              ... Mr. Eldrenkamp requires continuous therapy in terms of 
 
              protection from ultraviolet light, protection from extremes 
 
              of temperature.  He requires skin emollient to replace the 
 
              waxes and oils that his injured skin can no longer 
 
              manufacture.
 
             
 
              He has to modify his life in order to stay out of stressful 
 
              environments in terms of heat and cold.  He has to protect 
 
              the skin that he now has from sunlight using either clothing 
 
              or sun block. that's how I put him in the Class III 
 
              category. He has -- and these will be permanent.  They 
 
              hadn't changed the last time I saw him at all.
 
             
 
         (Claimant's exhibit 9, page 29, line 10 through line 22)
 
             
 
             However, when asked if claimant's successfully showing that 
 
         he was able to perform a job for over a year's time would 
 
         indicate that he was able to continue to do the work, Dr. Kealey 
 
         replied: "The thing speaks for itself."  On redirect examination, 
 
         Dr. Kealey stated:
 
             
 
              A.  By virtue of the extensive skin injury that he had, he 
 
              cannot tolerate the high and low temperature extremes 
 
              because of the ongoing and permanent loss of the insulating 
 
              and cooling function of his skin, and when you interview Mr. 
 
              Eldrenkamp, he'll tell you where he's comfortable, and he's 
 
              comfortable between approximately 45 and 80 degrees.  That 
 
              is very common with this type of burn patient, and they are 
 
              forced into a temperature control problem.
 
              
 
              They do not tolerate being cold and they do not tolerate 
 
              being hot worth a darn.  They cannot cool and they cannot 
 
              insulate themselves, if that's the right word.  So 
 
              therefore, they have to take precautions with extra 
 
              clothing, and protective clothing, and they have to be aware 
 
              of lack of sensation because frostbite can occur to them 
 
              very easily and they'll not even know it.  And with the 
 
              upper end of the temperature scale, they are subject to 
 
              overheating and hypothermia and all those attendant problems 
 
              and that, too, is a permanent problem.
 
             
 
         (Claimant's exhibit 9, page 41, line 23 through page 42, line 19)
 
             
 
             A letter to Mr. Eldrenkamp by Dr. Kealey of July 18, 1986 
 
         indicated that claimant could return to work if he was in a 
 
         controlled thermal environment such as an air conditioned area. 
 
         In a letter to Mr. Obermiller of July 31, 1986, Dr. Kealey 
 
         again noted that claimant should be placed in a 
 
         temperature-controlled environment, but also stated:
 
             
 
              It is also worth noting that with the passage of time, that 
 
              the grafted skin will recover and regain many of it's [sic] 
 
              functions and the greater percentage of his disability will 
 
              spontaneously resolve.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
             
 
             Claimant was seen for evaluation by Antonio F. Bernas, M.D., 
 
         on August 11, 1986.  His letter to Dr. Kealey indicated agreement 
 
         with Dr. Kealey's restrictions.
 
             
 
                           APPLICABLE LAW AND ANALYSIS
 
             
 
             As has been noted, the sole issue presented for 
 
         determination is the degree of claimant's permanent impairment.  
 
         It has also been stipulated that claimant suffered an industrial 
 
         disability to the body as a whole by reason of his work injury.  
 
         Industrial disability is intended by the legislature to refer to 
 
         loss of earning capacity as opposed to a mere "functional 
 
         disability" which is computed in the terms of percentages of the 
 
         total physical and mental ability of a normal man.  Diederich v. 
 
         Tri-City Railway Co., 219 Iowa 587, 258 N.,W. 899 (1935).
 
             
 
             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, 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 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
             
 
             Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
             
 
             There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             The undersigned wishes first to note that he found claimant 
 
         to be in every way a credible witness.  This is also true of 
 
         claimant's wife, Jeanine Eldrenkamp.  Claimant suffered severe 
 
         burns to some 58% of his body surface, and as a result finds 
 
         himself unable to withstand extremes in temperature, requires 
 
         continuous therapy by way of protection from ultraviolet light, 
 
         requires skin emollients to replace waxes and oils that his 
 
         injured skin can no longer manufacture, and has suffered 
 
         substantial impairment of each of his four extremities.  It might 
 
         be noted that even where a person less severely burned than 
 
         claimant suffered no loss of range of motion and had no work 
 
         restrictions and where the record conflicted as to whether he 
 
         suffered permanent impairment as the result of sensitivity of 
 
         scar and hypopigmented tissue, the fact that claimant had minor 
 
         complaints of discomfort resulted in an award of five percent 
 
         industrial disability.  Gann v. Griffin Pipe Products Company, II 
 
         Iowa Industrial Commissioner Report, 160 (App. Decn., 1981).
 
             
 
             Obviously, claimant's status is greatly more severe than 
 
         that of Mr. Gann.  Claimant has work limitations and substantial 
 
         functional impairment.  As was pointed out by Dr. Kealey, 
 
         claimant's functional impairment when converted to a whole person 
 
         rating is 65%.
 
             
 
             While Dr. Kealey commented in a letter to Mr. Obermiller on 
 
         July 31, 1986 that the grafted skin would recover and regain many 
 
         of its functions and that the greater percentage of claimant's 
 
         disability will spontaneously resolve, he had apparently changed 
 
         his mind at the time of his deposition on December 15, 1988.  As 
 
         Dr. Kealey's more recent statement is supported by claimant's 
 
         actual history and testimony, it is accepted and held that 
 
         claimant's disability is indeed permanent for purposes of this 
 
         decision.
 
             
 
             Factors tending to show greater disability 'include 
 
         claimant's limited education and work history.  It is clear that 
 
         a ninth grade educational background seriously impairs claimant's 
 
         ability to seek work in many fields of endeavor.  This is 
 
         consistent with his work history, which has essentially been 
 
         unskilled.  Much of claimant's work has been performed outdoors, 
 
         which work apparently claimant will be permanently unable to 
 
         undertake as shown by Dr. Kealey's restrictions and his own 
 
         experience in making a courageous and prolonged attempt to 
 
         continue his employment with defendant.  It seems likely to the 
 
         undersigned that claimant will have great difficulty in obtaining 
 
         suitable work in a temperature-controlled environment given his 
 
         educational background and work history.  It might also be noted 
 
         that claimant may well have difficulty presenting himself at his 
 
         best to hiring authorities because of damage to his social skills 
 
         caused by this unfortunate injury.
 
             
 
             Factors tending to lessen claimant's degree of industrial 
 
         disability include his age (he is certainly young enough to 
 
         undergo retraining and does not appear unintelligent) and the 
 
         fact that defendant has made a good faith effort to provide him 
 
         continuing employment.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             It may well be argued that claimant's industrial disability 
 
         is lessened, perhaps even to zero, as shown by the fact that he 
 
         was able to return to substantially similar or identical 
 
         employment for two years after the injury.  However, the 
 
         undersigned concludes that this is a misleading premise.  That 
 
         is, although claimant made a remarkable effort to remain in 
 
         employment, he in fact was unable to do so.  He and his wife have 
 
         testified that he returned home from work with swollen and black 
 
         blue hands and that he often retired to bed by as early as 6:00 
 
         p.m.  Claimant is to be credited for this courageous performance, 
 
         not penalized.  He has shown remarkable motivation but appears 
 
         simply unable to continue performing the job without suffering an 
 
         unacceptable level of discomfort.  In fact, but for his failure 
 
         to seek other employment unsuccessfully after leaving defendant, 
 
         it might well be argued that claimant falls within the "odd-lot" 
 
         category of permanently totally disabled individuals.  Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
             
 
             Based upon the foregoing factors, the undersigned concludes 
 
         that claimant has sustained an industrial disability of 80% of 
 
         the body as a whole by reason of his stipulated work injury of 
 
         June 12, 1985.
 
             
 
                                 FINDINGS OF FACT
 
             
 
             THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
             
 
             1.  As stipulated, claimant suffered a work injury  on June 
 
         12, 1985.
 
             
 
             2.  The work injury caused claimant severe burns to 58% of 
 
         his body surface with deep burns on the face and hands and mostly 
 
         second degree burns on the neck, chest, back, arms and legs.
 
             
 
             3.  Despite extensive surgical repair and physical therapy, 
 
         claimant has a combined functional impairment to all four 
 
         extremities and his trunk of 65%.
 
             
 
             4.  Claimant's limitations include the need to be protected 
 
         from ultraviolet light and the need to be employed in a 
 
         temperature-controlled environment.
 
             
 
             5.  Claimant was a credible witness.
 
             
 
             6.  Claimant has shown excellent motivation to return to 
 
         work by actually performing similar employment for two years 
 
         after his injury, although he eventually proved unable to 
 
         continue because of his injuries.
 
             
 
             7.  Claimant has suffered depression and a diminution of his 
 
         social skills by reason of the work injury.
 
             
 
             8.  As stipulated, claimant is entitled to a healing period 
 
         from June 13, 1985 through August 12, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
                                CONCLUSIONS OF LAW
 
             
 
             WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
             
 
             1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on June 12, 1985.
 
             
 
             2.  Claimant's injury caused a healing period as stipulated 
 
         and industrial disability of 80% of the whole person, or 400 
 
         weeks.
 
             
 
                                      ORDER
 
             
 
             THEREFORE, IT IS ORDERED:
 
             
 
             Defendants are to pay unto claimant four hundred (400) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of three hundred twenty-eight and 53/100 dollars ($328.53) per 
 
         week commencing August 13, 1986 and totalling one hundred 
 
         thirty-one thousand four hundred twelve and 00/100 dollars 
 
         ($131,412.00).
 
             
 
             After first deducting benefits voluntarily paid to claimant 
 
         for his healing period from June 13, 1985 through August 12, 
 
         1986, defendants shall be entitled to credit for all other weekly 
 
         benefits paid to claimant as and for permanent partial 
 
         disability.
 
             
 
             Any accrued benefits ordered hereunder that have not been 
 
         paid shall be paid to claimant as a lump sum together with 
 
         statutory interest thereon pursuant to Iowa Code section 85.30.
 
             
 
             Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
             
 
             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 16th day of May 1989.
 
             
 
             
 
             
 
             
 
             
 
                                         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
             
 
         Copies To:
 
         
 
         Mr. Michael E. Sheehy
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         118 2nd Avenue SE
 
         United Fire & Casualty Bldg., Suite 205
 
         Cedar Rapids,.Iowa  52401
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Building
 
         Davenport, Iowa  52801
 
             
 
             
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51803
 
                                            Filed May 16, 1989
 
                                            DAVID RASEY
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TONY R. ELDRENKAMP,
 
         
 
              Claimant,
 
                                                    File No. 797085
 
         vs.
 
                                                 A R B I T R A T I O N
 
         ARCHER DANIELS MIDLAND,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         51803
 
              Burn victim with second and third degree burns over 58% of 
 
         body and who was assigned 65% combined impairment was awarded 80% 
 
         permanent industrial disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY A. LEWIS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 797154
 
            DEE ZEE MANUFACTURING,        :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants, Dee Zee Manufacturing, employer and Kemper 
 
            Insurance, insurance carrier, appeal from an arbitration 
 
            decision awarding claimant healing period benefits; 
 
            permanent partial disability benefits; and medical benefits.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibit 1.  Both parties 
 
            submitted appeal briefs.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are:
 
            
 
                 1.  Whether the deputy industrial commissioner erred in 
 
            finding a causal connection between claimant's injuries and 
 
            his employment.
 
            
 
                 2.  Whether the deputy industrial commissioner erred in 
 
            the calculation of claimant's workers' compensation rate.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed September 11, 1989 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be totally reiterated herein.
 
            
 
                 In the report of the operation dated July 25, 1985, 
 
            Martin S. Rosenfeld, D.O., stated:
 
            
 
                 Examination of the medial compartment revealed the 
 
                 medial meniscus and compartment to the intact and 
 
                 satisfactory.  Anterior cruciate was hidden by 
 
                 hypertrophic synovium, the lateral compartment was 
 
                 satisfactory.  The posterior patellar surface was 
 
                 satisfactory.  There was a medial synovial plica 
 
                 present.  Using the shaver the hypertrophic 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 synovium from the intercondylar notch was removed.  
 
                 Viewing of the cruciate was carried out which 
 
                 again showed that it was stable.  The hypertrophic 
 
                 synovium in the medial compartment and then the 
 
                 synovial plica was excised with a shaver.
 
            
 
            (Joint Exhibit I, page 43)
 
            Dr. Rosenfeld stated in his deposition:
 
            
 
                 Q.  Even though you do those procedures is it 
 
                 possible that there is still an internal damage to 
 
                 the fibers or the structures of the anterior 
 
                 cruciate that is not immediately detectable even 
 
                 though you used standard medical technique with 
 
                 him?
 
            
 
                 A.  Yes.  It can tear in continuity, still be 
 
                 intact but lose its strength.
 
            
 
                 Q.  If it tore in continuity, would your manual 
 
                 testing or manipulation of the anterior cruciate 
 
                 -- would it reveal that loss of continuity, or is 
 
                 it a hit-and-miss-type proposition depending on 
 
                 the extent of loss of continuity?
 
            
 
                 A.  No.  It should have -- during awake testing -- 
 
                 during clinical testing you should be able to 
 
                 elicit instability from a torn anterior cruciate 
 
                 whether it's intact or not.  If it's intact the 
 
                 fibers stretch and they don't hold.  You can't see 
 
                 it, but you would test it and be able to find the 
 
                 problem or with a probe you would be able to tell 
 
                 that it doesn't have the taughtness that it ought 
 
                 to.
 
            
 
            (Joint Ex. 2, p. 21)
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     Analysis
 
            
 
                 Claimant worked for Dee Zee Manufacturing during the 
 
            time he sustained injuries to his right knee, on May 9, 
 
            1985; March 16, 1986; and July 1, 1986.  The parties 
 
            stipulated that the injury on May 9, 1985 arose out of and 
 
            in the course of claimant's employment, and as a causal 
 
            result, claimant sustained a temporary disability.  
 
            Defendants claim benefits were paid for 6.143 weeks; 
 
            claimant contends he received 2.143 weeks of benefits.
 
            
 
                 The focus on appeal is on the two subsequent events 
 
            which caused claimant to lose additional time from work and 
 
            to undergo additional medical treatment.  The main point of 
 
            contention is whether claimant's subsequent injuries to the 
 
            right knee on March 16, 1986 and July 1, 1986 were causally 
 
            connected to claimant's May 9, 1985 work-related injury.  
 
            Defendants maintain that claimant's volleyball activities on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            March 16, 1986 caused a separate and distinct injury to his 
 
            right knee, and broke the causal thread between claimant's 
 
            employment and the injury and thereby renders time off work 
 
            and medical treatment administered after August 20, 1985 not 
 
            compensable.  Additionally, defendants argue that claimant 
 
            sustained another separate and distinct injury when 
 
            claimant's right knee locked while claimant was moving an 
 
            appliance in his home.
 
            
 
                 Martin S. Rosenfeld, D.O., was claimant's principle 
 
            treating physician.  Dr. Rosenfeld first performed 
 
            arthroscopic surgery upon claimant's right knee on July 25, 
 
            1985 following the May 9, 1985 work-related injury.  The 
 
            preoperative diagnosis was internal derangement of the right 
 
            knee which Dr. Rosenfeld explained included a meniscus tear 
 
            or damage to the anterior cruciate ligament.  No such damage 
 
            was found upon surgery and Dr. Rosenfeld repaired claimant's 
 
            synovial plica and noted that the meniscus and the cruciate 
 
            were intact.  
 
            
 
                 During his deposition, Dr. Rosenfeld testified that he 
 
            closely examined the medial meniscus and the anterior 
 
            cruciate ligament because of claimant's complaint of knee 
 
            locking but Dr. Rosenfeld was unable to find any damage.  
 
            Dr. Rosenfeld released claimant to return to work with no 
 
            restrictions on August 20, 1985.  Claimant did not seek 
 
            medical treatment from August 26, 1985 to March 17, 1986, 
 
            however, claimant testified that he continued to experience 
 
            swelling in the knee and that his knee would lock up on 
 
            occasion.  Claimant testified that he subbed for a 
 
            volleyball team in the summer following his work injury and 
 
            prior to the March 1986 incident.
 
            
 
                 On March 16, 1986, claimant testified that he 
 
            participated in a volleyball game when his knee locked up 
 
            and he was unable to correct the problem.  He was treated at 
 
            the Ankeny EmergiClinic and saw Dr. Rosenfeld on March 17, 
 
            1986.  Claimant told Dr. Rosenfeld that his knee locked 
 
            while he was standing and that he was not jumping.  At the 
 
            hearing, claimant testified that he jumped during the game.
 
            
 
                 Q.  ... Can you tell or describe for me what you 
 
                 did?
 
            
 
                 A.  The ball was hit over to our side,  I reached 
 
                 and stepped at the same time, which would be, I 
 
                 supposed, six to eight inches off the ground, 
 
                 which would be slightly -- a slight jump.
 
            
 
            (Transcript, p. 52)
 
            
 
                 Dr. Rosenfeld performed a second arthroscopic surgery 
 
            on March 21, 1986 to repair a tear of the anterior horn of 
 
            the medial meniscus.  This condition was not present when 
 
            the first surgery was performed and Dr. Rosenfeld opined 
 
            that it occurred between the first and the second surgery.  
 
            (Jt. Ex. II, p. 13) Claimant returned to Dr. Rosenfeld's 
 
            office on three occasions, and was released to return to 
 
            work on May 12, 1986 with no work restrictions.  Dr. 
 
            Rosenfeld, during his deposition, opined that claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            sustained a five to ten percent impairment to claimant's 
 
            right lower extremity as a result of the repair of 
 
            claimant's medial meniscus.
 
            
 
                 Dr. Rosenfeld opined that a causal connection existed 
 
            between the work-related fall on May 9, 1985 and the torn 
 
            medial meniscus which Dr. Rosenfeld observed during 
 
            arthroscopic surgery on March 21, 1986.  Dr. Rosenfeld based 
 
            his opinion upon the fact that claimant was standing when 
 
            his knee locked during the volleyball game.  Dr. Rosenfeld 
 
            opined that "the continued problems with the knee are 
 
            related to the initial injury and that the second surgery 
 
            was necessitated because of the initial injury as opposed to 
 
            the separate and distinct second injury while playing 
 
            volleyball."  (Jt. Ex. I, p. 36)  Dr. Rosenfeld opined that 
 
            there was something internally wrong with claimant's knee to 
 
            cause it to lock up while standing.
 
            
 
                   During his deposition, Dr. Rosenfeld opined that the 
 
            medial meniscus could tear from the type of physical 
 
            activity associated with volleyball in and of itself.  
 
            Claimant testified to a different rendition of the 
 
            volleyball incident then what he told his treating 
 
            physician.  When claimant returned to Dr. Rosenfeld after 
 
            the volleyball incident, claimant told him that he was 
 
            standing when his knee popped and gave out.  But, at the 
 
            hearing, claimant testified that he reached and stepped to 
 
            hit a ball, and the knee gave out when he landed.  (Tr., pp. 
 
            54-55)  It is entirely possible that Dr. Rosenfeld's opinion 
 
            would differ if he was aware that claimant's volleyball 
 
            injury occurred as a result of reaching and jumping into the 
 
            air and then landing on the ground.  The weight to be given 
 
            to such medical 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); and 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 Claimant has failed to prove a causal connection 
 
            between his May 9, 1985 compensable knee injury and the 
 
            subsequent knee injury on March 16, 1986 and July 1, 1986.  
 
            Claimant testified that he continued to have problems with 
 
            his right knee but failed to seek medical care.  Dr. 
 
            Rosenfeld opined that a causal connection existed between 
 
            the repair of the torn medial meniscus on March 21, 1986 and 
 
            his fall on May 9, 1985, but Dr. Rosenfeld based his opinion 
 
            upon false information, therefore, it should be given little 
 
            weight.  Claimant failed to prove causal connection between 
 
            his May 9, 1985 compensable knee injury and the subsequent 
 
            knee injuries on March 16, 1986.
 
            
 
                 Even more remote, both in time and causally, is the 
 
            July 1, 1986 episode.  Claimant was moving an appliance in 
 
            his home when his knee locked up again.  Claimant sought 
 
            treatment from Robert F. Breedlove, M.D., who subsequently 
 
            performed another arthroscopic surgery, and ultimately 
 
            surgery to reconstruct claimant's right anterior cruciate 
 
            ligament.  Dr. Breedlove, who performed the third 
 
            arthroscopic surgery and the subsequent repair of the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            cruciate, did not express an opinion on causal connection 
 
            between the May 9, 1985 work-related right knee injury and 
 
            the July 1, 1986 right knee injury.
 
            
 
                 Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 
 
            1984), states that the statute is to be liberally construed 
 
            in favor of the worker.  It does not, however, stand for the 
 
            proposition that the facts should be liberally construed.  
 
            The statute, not the facts are construed liberally.  While 
 
            the facts in this case point to the possibility of a causal 
 
            connection between the May 9, 1985 work-related injury and 
 
            claimant's subsequent injuries on March 16, 1986 and July 1, 
 
            1986, a possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960).   Dr. Breedlove did not express 
 
            an opinion on the issue of causal connection and Dr. 
 
            Rosenfeld's opinion is given light weight due to the fact 
 
            that his opinion was based upon false information.  
 
            Therefore, it is determined that claimant has not met his 
 
            burden of proving that the May 9, 1985 work-related injury 
 
            is the cause of his alleged right knee disability which 
 
            occurred on March 16, 1986 and July 1, 1986.
 
            
 
                 The issue of the proper rate of compensation is moot.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was employed by the defendant-employer on 
 
            May 9, 1985, March 16, 1986 and July 1, 1986.
 
            
 
                 2.  Claimant sustained an injury to his right knee on 
 
            May 9, 1985 which arose out of and in the course of his 
 
            employment.
 
            
 
                 3.  As a result of the work injury claimant had surgery 
 
            on July 25, 1985.  The post operative diagnosis was excision 
 
            of synovial plica.  There was no damage to the medial 
 
            meniscus and the anterior cruciate ligament at the time of 
 
            the July 25, 1985 surgery.
 
            
 
                 4.  Claimant was released to return to work on August 
 
            20, 1985 with no restrictions and no permanent impairment 
 
            rating.
 
            
 
                 5.  Claimant had continued complaints of right knee 
 
            pain but did not seek medical treatment from the time he was 
 
            released to return to work by Dr. Rosenfeld until March 17, 
 
            1986 when he injured his knee during a volleyball game.  
 
            
 
                 6.  Claimant told Dr. Rosenfeld that he injured his 
 
            right knee while standing during a volleyball game on March 
 
            16, 1986.  Claimant testified that he reached and stepped 
 
            and injured his right knee when he landed after a six to 
 
            eight inch jump.
 
            
 
                 7.  Dr. Rosenfeld opined that a causal connection 
 
            existed between the May 9, 1985 work-related right knee 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            injury and the March 16, 1986 volleyball incident.  Dr. 
 
            Rosenfeld's opinion was based upon incorrect information 
 
            given to him by claimant.
 
            
 
                 8.  Claimant sustained a non work-related injury to his 
 
            right knee on March 16, 1986 while playing volleyball.
 
            
 
                 9.  Claimant had surgery on March 21, 1986.  The post 
 
            operative diagnosis was a tear of the anterior horn of the 
 
            medial meniscus.
 
            
 
                 10. Claimant sustained a non work-related injury to his 
 
            right knee on June 29, 1986 while moving an appliance at his 
 
            home.
 
            
 
                 11. Claimant had surgery on July 1, 1986.  The post 
 
            operative diagnosis was a cleavage tear, right medial 
 
            meniscus, with anterior cruciate ligament instability.
 
            
 
                 12. Claimant had surgery on September 12, 1986.  The 
 
            post operative diagnosis was right anterior cruciate 
 
            ligament deficient knee.
 
            
 
                 13. The damage to claimant's medial meniscus and 
 
            anterior cruciate ligament was not caused by claimant's work 
 
            injury on May 9, 1985.
 
            
 
                 14. Dr. Rosenfeld opined that claimant sustained a 
 
            permanent impairment of five to ten percent as a result of 
 
            the March 21, 1986 surgery to repair the torn meniscus.  Dr. 
 
            Breedlove opined that claimant had a 24 percent permanent 
 
            impairment of his right upper extremity.  Dr. Breedlove 
 
            assigned ten percent due to the meniscectomy, ten percent 
 
            due to the reconstruction of the anterior cruciate ligament, 
 
            and four percent as a result of lack of range of motion.
 
            
 
                 15. Dr. Breedlove did not express an opinion as to the 
 
            causal connection between claimant's May 9, 1985 
 
            work-related right knee injury and his July 1, 1986 right 
 
            knee injury.
 
            
 
                                conclusions of law
 
            
 
                 Claimant failed to carry his burden of proof to show 
 
            that his present right knee condition is causally connected 
 
            to his work-related right knee injury of May 9, 1985. 
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered.
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendants pay all costs of this proceeding 
 
            including the costs of transcription of the arbitration 
 
            hearing.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Channing Dutton
 
            Attorney at Law
 
            West Towers Office Bldg.
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Bldg.
 
            Des Moines, Iowa 50309